Sanfacon NOV

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 48-4-12 Vtec
Docket No. 183-12-12 Vtec
In re Sanfacon NOV & Sanfacon CU Permit
ENTRY REGARDING MOTION
Title: Motion to Enforce Stipulation (Motion 2)
Filer: William D. Pollock
Attorney: Paul S. Gillies
Filed Date: April 13, 2015
Response filed on 04/13/2015 by Attorney Stephen L. Cusick for Appellee Phyllis Sanfacon
Title: Motion to Dismiss Motion to Enforce (Motion 3)
Filer: John M. Sanfacon
Attorney: Stephen L. Cusick
Filed Date: April 13, 2015
Response filed in Opposition on 04/22/2015 with corrected version on 05/04/2015 by Attorney
Paul S. Gillies for Interested Person William D. Pollock
The motion to dismiss is DENIED.
The Clerk shall schedule a MOTION HEARING on the motion to enforce.
The parties, John and Phyllis Sanfacon (the Sanfacons) and Appellant William Pollock,
are neighboring landowners who had a dispute concerning the Sanfacons’ use of their property
for storage. On October 11, 2013, the parties resolved the matters in Docket Numbers 48-4-12
Vtec and 183-12-12 Vtec by stipulation that became a Judgment Order in this case and served
as a conditional use permit for the Sanfacons’ property (the Agreement). Now pending before
the Court are motions filed by Mr. Pollack and the Sanfacons. Mr. Pollock moves to enforce the
Agreement, while the Sanfacons move to dismiss Mr. Pollock’s motion to enforce the
Agreement.
The Sanfacons argue that this Court is without jurisdiction over Mr. Pollock’s motion
because he failed to exhaust his administrative remedies. Mr. Pollock’s motion to enforce
follows a letter to the Town of East Montpelier Zoning Administrator (ZA) dated September 9,
2014, requesting that the Town enforce the Agreement based upon allegations that the
Sanfacons had failed to comply with the terms of the Agreement. In response, the Town
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Selectboard declined to initiate enforcement proceedings because the Selectboard determined
that the Sanfacons had substantially complied with the terms of the Agreement. Mr. Pollock
did not appeal that decision. The Sanfacons now argue that Mr. Pollock failed to exhaust his
administrative remedies under § 7.5(A) of the East Montpelier Land Use and Development
Regulations (Regulations), 10 V.S.A. § 8504(b)(1), and 24 V.S.A. § 4465(a) by failing to appeal
the Selectboard’s decision. In response, Mr. Pollock argues that the pending motion is not an
appeal of the Selectboard’s decision, but rather an independent request to enforce the
Stipulated Agreement pursuant to 24 V.S.A. § 4470(b).
The Court agrees with Mr. Pollock that the Sanfacons’ reliance on these administrative
provisions is misplaced. Mr. Pollock’s motion is not an action to contest a local zoning decision
made by either the municipality’s administrative officer or development review board, and is
therefore, not bound by the time limits relevant to such matters. See 10 V.S.A. § 8504(b)(1)
(establishing the time limit for an interested person to appeal an act or decision of a board of
adjustment, planning commission, or a development review board to this Court); 24 V.S.A.
§ 4465 (establishing the procedure for appealing decisions of administrative officers to
municipal panels); Regulations § 7.5 (establishing the procedure for appealing an act of decision
by the Zoning Administrator to the DRB); 24 V.S.A. § 4471 (setting forth procedure for
appealing decisions of municipal panels to the Environmental Court); id. § 4472 (providing that
§§ 4465 and 4471 contain the exclusive remedies for interested persons seeking to contest
administrative-officer, municipal-panel or Environmental–Court decisions). The decision the
Sanfacons suggest that Mr. Pollock should have appealed was a decision of the Selectboard. As
noted above, the time limits in the provisions relied on by the Sanfacons explicitly apply to acts
or decisions of administrative bodies and not to acts or decisions of selectboards.
The relief Mr. Pollock seeks—the enforcement of a municipal-panel decision adopted as
judicial order by this Court—is governed by 24 V.S.A. § 4470(b), which authorizes this motion in
the absence of a direct appeal. See Sunset Cliff Homeowners Ass’n v. City of Burlington, 184 Vt.
533, 536 (2008) (homeowners association was not required to exhaust its administrative
remedies before seeking enforcement of the city's denial of a permit application because the
association was not contesting a local zoning decision, but rather seeking enforcement of a
municipal panel decision.). For this reason, his motion is within this Court’s jurisdiction. We
therefore DENY the Sanfacons’ motion to dismiss Mr. Pollock’s motion to enforce.
As to Mr. Pollock’s motion to enforce the Agreement, we consider it as a motion for
contempt under 12 V.S.A. § 122. See Sunset Cliff Homeowners Ass’n v. City of Burlington, 2008
VT 56, ¶¶ 10–11, 184 Vt. 533 (mem.) (citing 24 V.S.A. § 4470(b)) (requiring the environmental
division to enforce the decisions of municipal panels “upon petition, complaint or appeal or
other means . . . by such municipality or any interested person by means of mandamus,
injunction, process of contempt, or otherwise.”); see also Norlund v. Van Nostrand, 2011 VT 79,
¶ 13, 190 Vt. 188 (“An action for judicial enforcement under § 4470 is a specialized procedural
device to enforce court decisions . . . .”). Section 122 provides for the initiation of contempt
proceedings against any party that violates a court order.
This Court’s October 11, 2013 Stipulation of Settlement obligated the Sanfacons to
satisfy certain conditions. In the pending motion, Mr. Pollock alleges that the Sanfacons have
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failed to satisfy those conditions. He therefore asks the Court to find the Sanfacons in
contempt of the Agreement. Mr. Pollock, however, fails to make any factual representations or
provide any basis on which this Court could determine that the Sanfacons have failed to comply
with the terms of the Agreement. A hearing is therefore necessary in the matter in order to
provide the parties with the opportunity to present evidence supporting or refuting the factual
bases of Mr. Pollock’s motion. See the enclosed notice of hearing.
Electronically signed on June 23, 2015 at 11:10 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
Notifications:
Stephen L. Cusick (ERN 3093), Attorney for Appellant John M. Sanfacon
Stephen L. Cusick (ERN 3093), Attorney for Appellant Phyllis Sanfacon
Paul S. Gillies (ERN 3786), Attorney for Interested Person William D. Pollock
Bruce Bjornlund (ERN 3923), Attorney for Interested Person Town of East Montpelier
cstanton
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