Town of North Hero v. Herrington

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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Town of North Hero v. Herrington Docket No. 125-9-12 Vtec
Title: Cross Motions for Summary Judgment (Filing Nos. 1 & 2)
Filed: 1/31/2013 (both motions)
Filed By: Defendant Larry Herrington; Town of North Hero, Vermont
Town’s Opposition to Defendant’s Motion for Summary Judgment filed on 2/21/2013.
Defendant’s Opposition to Town’s Motion for Summary Judgment filed on 2/27/2013, together
with a Reply to Town’s Opposition to Defendant’s Motion for Summary Judgment
Town’s Reply filed on 3/12/2013
X Granted in part for Defendant X Denied in part
On September 25, 2012, the Town of North Hero, Vermont (“Town”) filed with this
Court a complaint for enforcement against Defendant Larry Herrington (“Defendant”) related
to recreational vehicles (“RVs”) and a lean-to structure on his commercial property. Both
Defendant and the Town have moved for summary judgment. For the purpose of putting the
pending motions into context, we recite the following facts, which we understand to be
undisputed unless otherwise noted.
1. Defendant owns1 property located on Route 2 in the Town known as the Carry Bay
Campground and Cottages, where he rents out campsites for profit (“the Property”).
2. On August 28, 2002, Defendant filed a conditional use application to replace a metal
trailer on the property with a garage. See Defendant’s Exhibit 2.2 Defendant
subsequently requested a variance for this change as well. See Defendant’s Exhibit 4.
3. On January 29, 2003, before the hearing on Defendant’s application, Defendant received
a notice of violation (“NOV”), for “[c]onstruction of the new deck on the main house at
Carry Bay campground without a setback variance or building permit on a non-
conforming lot.” See Defendant’s Exhibit 8. Defendant did not appeal the NOV.
4. On February 28, 2003, the Town of North Hero Board of Adjustment (“the Board”)3
noticed a hearing for March 20th, concerning Defendant’s application for a permit to
1 The parties’ pleadings alternatively list the owners and operators of the Carry Bay Campground as
Larry Harrington, Chad Harrington, and/or Toadcha, Inc. We ask the parties to clarify the current
ownership interests in the subject property.
2 Defendant submitted Exhibits 1 through 24 on January 31, 2013 with his initial motion for summary
judgment. The Town submitted Exhibits 1 through 18 on January 31, 2013 with its initial motion for
summary judgment. All other references to Exhibits in this Entry Order are to these respective Exhibits.
3 The land use municipal panel in the Town of North Hero was formerly called the Board of Adjustment;
today it is called the Development Review Board. For simplicity, we use the term “Board” throughout
this Decision.
In re Town of North Hero v. Herrington, No. 125-9-12 Vtec (EO on Cross Mot. for Summ. J.) (5-10-13) Pg. 2 of 6.
construct a storage building and a variance for a deck on the main house. The notice did
not mention Defendant’s request for a setback variance in relation to the garage.
5. In a letter dated March 13, 2003, the Chair of the Board wrote to Defendant to confirm
the date and time of the hearing, but also notified him of a number of other concerns
regarding other alleged zoning violations on Defendant’s property, including “recent
conversion of one of the cabins from a 18 x 16 foot seasonal cabin with an attached 18 x 8
foot enclosed porch to a 18 x 24 foot house, without the required conditional use permit
to allow this change of use.” (Defendant’s Exhibit 10 at 2, filed Jan. 31, 2013.) The letter
additionally stated:
[I]f you wish to extend or change the above permitted uses, as with the
request for a garage, the Board must review all uses to determine that the
total uses do not exceed the capacity of use on the property. Although
this does not mean that any one particular use must be discontinued, it
does mean that some uses may have to be changed, modified, or
discontinued to allow for new or different uses. One such change which
we discussed at our last meeting was to replace and reposition the bath
house with the proposed garage. Furthermore, it may be determined that
the changes made to one of the cottages constitutes a change of use, and
thus will require some additional modifications to the total use of this
property.
Id at 2. (Copy supplied as Defendant’s Exhibit 10.)
6. Defendant attended the March 20, 2003 hearing but left before the Board went into
deliberative session and ultimately reached a conclusion.
7. The Board issued a written decision on March 25, 2003. In re Appl. of Toadcha, Inc,
#8779-C (property tax map parcel #07-02-81), Findings of Fact and Conclusions of Law
(Town of North Hero Bd. of Adjustment, March 25, 2003) (“the March 2003 decision”).
See Town Exhibit 9. The March decision begins by stating that the Board considered
“Application 8779-C in the hearing [on the application] of Carry Bay Camp Ground, as
per T 24 4402 (c) [sic4] for replacement of a trailer with a garage.” Id. at 1. The
introductory portion of the decision does not reference any of the zoning violations
asserted in the March 13th letter from the Board’s Chair.
8. The March 2003 decision does not reference, act upon, or even mention the variance
application submitted on behalf of the Campground (#8851-V), even though the
variance application is referenced in the minutes of the Board’s March 20, 2003 meeting
(Town’s Exhibit 8).
9. The March 2003 decision does not reference, act upon, or even mention the deck on the
main house that was referenced in the February 28, 2003 notice of the March 20, 2003
hearing (Defendant’s Exhibit 9), nor does any mention of the deck appear in the minutes
of the Board’s March 20, 2003 meeting.
4 This reference appears to be to the statutory authorization for conditional use approvals, albeit with a
typographical error. That authorization was previously codified in 24 V.S.A. § 4407, but was later
transferred to 24 V.S.A. § 4414(3) in connection with the re-write of title 24 as part of the Permit Reform
Act of 2004.
In re Town of North Hero v. Herrington, No. 125-9-12 Vtec (EO on Cross Mot. for Summ. J.) (5-10-13) Pg. 3 of 6.
10. The March 2003 decision does discuss one existing cabin that Defendant had already
modified by transforming an enclosed porch into permanent living space, characterizing
this modification as an unpermitted change in use. The decision also discusses similar
porch-to-living-space conversions proposed for three other seasonal camp cabins on the
Property. The decision ultimately permits the as-built change in use for the first cabin as
well as the similar proposed renovations for the other three cabins.
11. The March 2003 decision also approves the proposed garage to replace the trailer and a
bathhouse. The new garage was to be located in a different place than the trailer.
12. The March 2003 decision states, “The request for the garage was reviewed with respect
for the other uses and the other structures, including RV use.” Id. at 3.
13. The March 2003 decision also includes a list of six conditions, four of which directly
relate to the garage and the bathhouse and trailer it was to replace. The other conditions
are:
- A site plan is required. The site plan must include the areas in which the six
permitted RVs will be used and must show the right of way deeded to Bob
and Beverly Camp in addition to other structures and traffic access.
- The use of RVs will be limited to only those with self contained sewage
systems.
Id at 3. (copy supplied as Town’s Exhibit 9.)
14. On April 4, 2003, Defendant notified the Board that he did not agree with the conditions
imposed and was therefore “withdrawing” his application. (Defendant’s Exhibit 13.)
15. The Town responded to Defendant with a letter dated April 14, 2003, informing
Defendant that the Town was “not certain of what issues are of concern to you,” because
it was “unaware of any request you made which we did not grant.” (Defendant’s
Exhibit 14.) The letter speculates that Defendant’s concern might relate to the condition
requiring the removal of a septic tank and invites further communication. Defendant
did not respond to the Town’s letter. Id.
16. Defendant never appealed the March decision, nor did he ever build the proposed
garage. It is unclear from the record whether Defendant effectuated the proposed
conversion of the porches on the three cabins to living space as mentioned in the March
2003 decision or whether Defendant removed or modified the front porch on the main
house.
17. On June 30 of 2012, the current Zoning Administrator sent Defendant a letter alleging
several zoning violations, specifically alleging that (1) a lean-to on the property lacked a
building permit and (2) violations of the conditions referenced in the March 2003
decision have continued, specifically, allowing more than six RVs on the property and
failing to submit a plan showing six permitted RV sites for RVs with self-contained
sewage systems. A copy of this June 30, 2012 NOV was presented as Town Exhibit 12
and formed the basis for the zoning enforcement complaint that the Town filed to
initiate this action.
18. Defendant did not file an appeal for the June 30, 2012 NOV. That NOV therefore
became final on July 16, 2012.
In re Town of North Hero v. Herrington, No. 125-9-12 Vtec (EO on Cross Mot. for Summ. J.) (5-10-13) Pg. 4 of 6.
19. During Memorial Day weekend 2012, there were at least fourteen RVs/campers on the
Property, and during most of the summer of 2012 there were consistently nine or more
RVs/campers on the Property. Four RVs were stored on the Property during the winter
of 2012–2013.
20. Defendant has not filed a site plan with the Town or sought a building permit for the
lean-to structure.
Discussion
We begin our analysis with a basic premise: that summary judgment may only be
granted to a moving party upon a showing that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P.
5(a)(2). We must “accept as true the [factual] allegations made in opposition to the motion for
summary judgment” and give the non-moving party the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citation
omitted); see V.R.C.P. 56(c) (laying out summary judgment procedures). When considering
cross-motions for summary judgment, we look at each motion individually and give the party
opposing a motion the same benefit as a non-moving party. City of Burlington v. Fairpoint
Communications, 2009 VT 59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt.
44, 48 (1990)).
In considering a motion for summary judgment, our function is “not to make findings
on disputed factual issues.” Blake v. Nationwide Ins. Co., 2006 VT 48, ¶21, 180 Vt. 14; Gettis v.
Green Mtn. Econ. Dev. Corp., 2005 VT 117, ¶ 19, 179 Vt. 117. In addition, the Court does not
judge the credibility of the parties or their witnesses or the weight of the facts offered through
the affidavits submitted on summary judgment. Provost v. Fletcher Allen Health Care, Inc.,
2005 VT 115, ¶ 15, 179 Vt. 545 (stating that summary judgment is not warranted simply because
a movant offers facts that appear more plausible than those tendered in opposition, or if one
party appears unlikely to prevail at trial). With these procedural doctrines in mind, we consider
the parties’ respective summary judgment motions.
I. Violations of the April 2003 permit
The parties disagree over whether and to what extent the March 2003 decision may bind
Defendant to the conditions it sets out. Defendant argues that the March decision, including the
conditions imposed, is not binding on him because he withdrew his application and the Town
accepted his withdrawal request by responding to his letter. Alternatively, he argues that the
permit, including the conditions imposed, expired automatically in 2005, because he did not
build the garage. See Town of North Hero Zoning Regulations § 325(I) (providing that a permit
automatically expires after two years unless substantial work has been completed).
The Town agrees that an applicant cannot be forced to proceed with a development
permit and emphasizes that it does not seek to enforce those conditions from the 2003 decision
specifically relating to the construction of the garage. Instead, it argues that the Board’s
decision encompassed both the proposed garage application and violations related to
unpermitted construction on the Property. The Town argues that, in light of the zoning
violations mentioned in the Board Chair’s letter of March 13, 2003 (Defendant Exhibit 10), the
Board could and did impose other conditions that Defendant was required to carry out,
“regardless of whether [Defendant] constructed the garage that was the impetus for the
application.” (Town’s Mot. for Summ. J. at 6, filed Jan 31, 2013.)
In re Town of North Hero v. Herrington, No. 125-9-12 Vtec (EO on Cross Mot. for Summ. J.) (5-10-13) Pg. 5 of 6.
The Town argues that the conditions it now seeks to enforce are tied to the portions of
the March 2003 decision addressing violations on the Property. The Town further argues that
the March 2003 decision was never appealed, amended, or revoked, and that Defendant’s letter
rejecting his permit did not constitute an appeal; accordingly, the conditions addressing
violations on the Property became final and binding under 24 V.S.A. § 4472(d) when the appeals
period expired.
We conclude as a matter of law that the portions of the 2003 decision pertaining to the
proposed garage expired in 2005 when Defendant did not substantially complete his proposed
project. Thus, the Board’s conditions related to the garage are unenforceable. Likewise, any
conditions the Board may have imposed5 to cure the zoning violations are unenforceable,
because the record shows that none of the violations addressed in the March 2003 decision were
properly noticed.
The Vermont Supreme Court has held that a notice of violation must inform the parties
receiving it of (1) the factual basis for the allegation of a zoning violation; (2) the action to be
taken against the targeted person or property; and (3) the procedures available to cure or
challenge the threatened action. Town of Randolph v. Estate of White, 166 Vt. 280, 284–5 (1997).
The only violations mentioned in the March 2003 decision were not properly noticed, either in a
formal NOV or in the Board Chair’s March 13, 2003 letter to Defendant confirming the date of
the hearing. That letter outlines the factual basis for certain violation allegations, including the
conversions of porches to living space on several cabins, but does not explain what action
would be taken against Defendant for non-compliance, nor does it explain the procedures
available to cure or challenge the allegations of zoning violations.6 The Board action in 2003
was further deficient when it did not give notice that it intended to address those zoning
violation allegations at its March 20, 2003 hearing and took no arguments or evidence regarding
the violations before it began its deliberations.
Thus, the Town does not have the authority, based on the Board’s March 2003 decision
alone, to require Applicant to submit a site plan limiting the number of campsites to six. Our
conclusion does not preclude the Town from otherwise seeking to enforce any existing zoning
violations on the Property. We specifically decline in this proceeding to address the scope of
any grandfathered right that Defendant may have to continue unpermitted uses on the property
or any claim that some grandfathered uses may have been diminished or abandoned, due to
non-use. We note that the record does not show that Defendant ever applied for any permit for
authority to complete corrective measure concerning the porch-to-living-space conversions of
the cabins or that the public ever received notice that the DRB would discuss the issue at its
hearing. Thus, to the extent that the March 2003 decision appears to grant approval for such
conversions, that approval also cannot stand.
5
Unfortunately, it is not clear from the record presently before us whether the conditions that the Town
now seeks to enforce (those requiring the submission of a site plan showing a maximum of six RV sites
and limiting the use of the Property to RVs with self contained sewage systems) were imposed in relation
to the garage, to the violations, to both, or to neither. The March 2003 decision takes a holistic approach
that makes discerning such distinctions difficult. As noted above, we do not reach this question.
6 Although the January 29, 2003 NOV properly noticed a violation stemming from the “[c]onstruction of
the new deck on the main house,” the Board’s March 2003 decision does not mention this violation. The
2003 NOV made no reference to any other alleged zoning violations. See Town’s Exhibit 7.
In re Town of North Hero v. Herrington, No. 125-9-12 Vtec (EO on Cross Mot. for Summ. J.) (5-10-13) Pg. 6 of 6.
II. The lean-to structure
The portion of the June 30, 2012 NOV addressing the lean-to structure does not concern
Defendant’s 2003 permit. Defendant asserts that the lean-to was constructed before 1996, while
the Town maintains that the structure was built in 2007. The Town further contends that
Defendant is referencing a different lean-to structure on his property. Both sides support their
contentions with evidence conforming to the requirements of V.R.C.P. 56(c). The identity of the
offending lean-to and the date of its construction are disputed material facts. Only a trial will
allow this Court to determine whether the structure was a pre-existing nonconformity and
therefore whether this Court should grant the Town’s request for injunctive relief. Because a
dispute of material fact exists, we cannot decide this issue on summary judgment. See V.R.C.P.
56(a); Blake v. Nationwide Ins. Co., 2006 VT 48, ¶21, 180 Vt. 14 (a court deciding a summary
judgment motion is not to make findings on disputed factual issues).
Conclusion
For the reasons detailed above, we GRANT summary judgment to Defendant,
concluding that the Town may not, on the basis of the Board’s 2003 decision alone, require a site
plan limiting the Property to six campsites. Our ruling here does not preclude the Town from
noticing and prosecuting alleged zoning violations that continue to exist on Defendant’s
property. We DENY both parties’ motions for summary judgment regarding the lean-to
structure, however, as disputes of material facts prevent us from ruling on that issue on
summary judgment. We will therefore schedule a trial to resolve the remaining factual and
legal issues concerning the legality of the already-constructed lean-to structure.
_________________________________________ May 10, 2013
Thomas S. Durkin, Judge Date
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
Paul Gillies, Esq., attorney for the Town of North Hero
Defendant Larry Herrington