Town of Newbury v. Celeste

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 50-3-10 Vtec
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Town of Newbury, }
Plaintiff, }
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v. }
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Joseph Celeste, }
Defendant. }
Decision and Order on Defendant’s Motion for Summary Judgment
This case is an enforcement proceeding brought by the Town of Newbury
against Defendant Joseph Celeste, under the authority of 24 V.S.A. § 4451 and § 4452,
for violations of the Town of Newbury Zoning Regulations as stated in a 2006 Notice of
Violation. The Town is represented by Charles D. Hickey, Esq.; Defendant is
represented by Paul S. Gillies, Esq.
Defendant has moved for summary judgment, asking the Court to dismiss the
case with prejudice. Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
. . . show that there is no genuine issue as to any material fact and that any party is
entitled to judgment as a matter of law.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181
Vt. 154 (quoting V.R.C.P. 56(c)(3); State v. Therrien, 2003 VT 44, ¶ 8, 175 Vt. 342). In
determining whether there is a genuine issue of material fact, “the nonmoving party
receives the benefit of all reasonable doubts and inferences.’” Pontbriand v. Bascomb,
No. 2009-042, slip op. at 1 (Vt. July 20, 2009) (unpublished mem.) (quoting Samplid
Enters. v. First Vt. Bank, 165 Vt. 22, 25 (1996)).
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Factual & Procedural History
The following facts are undisputed unless otherwise noted.
Defendant owns the parcel of property located at 996 Leighton Hill Road in
Newbury, Vermont. The property contains a house that has been occupied by
Defendant’s sister, Michele Fortunati, since at least 2005.
In November of 2005, a deck was constructed on Defendant’s property without a
permit. Town’s Statement of Material Facts ¶ 1 (June 28, 2010).1 This deck subsequently
received a permit, id. ¶ 5, and is therefore not at issue in the present enforcement action.
In 2006, Defendant built a “mud room” and a second deck onto the residential
dwelling on the property. Id. ¶ 3. The Town’s Zoning Administrator issued a Notice of
Violation to Defendant for constructing the mud room and deck in violation of §§ 2.3
and 2.6 of the Zoning Regulations on February 1, 2006; Defendant received it on
February 6, 2006.2 Id. The Notice of Violation gave Defendant seven days to correct the
violation. Defendant did not appeal the 2006 Notice of Violation; therefore, it became
final and cannot be contested, either directly or indirectly. 24 V.S.A. § 4472(d).
From approximately July of 2006 until August of 2008, Defendant and the Town
attempted to resolve the alleged violations, but were unsuccessful in doing so. Smith-
Monteith Aff. ¶¶ 8, 10–12. Therefore, in December of 2008, the Town filed an
enforcement action in this Court regarding the violations stated in the February 2006
Notice of Violation, Town of Newbury v. Celeste, Docket No. 298-12-08 Vtec. After
1
The Town filed a Statement of Material Facts but did not file its own motion for
summary judgment.
2
No copy of the 2006 Notice of Violation has been provided to the Court in either
Docket No. 298-12-08 Vtec or the present case. However, it appears that 2006 Notice of
Violation alleged that the mud room and second deck violated the setback requirements
from the apparent boundary line of the property. See Smith-Monteith Aff. ¶¶ 7, 8, 10,
11 (June 28, 2010).
2
undergoing mediation, the parties entered into a settlement agreement of Docket No.
298-12-08 Vtec on November 9, 2009. See generally Alternative Dispute Resolution
Report, Docket No. 298-12-08 Vtec (Nov. 13, 2009). The parties did not file or intend to
file the Settlement Agreement with the Court and it did not become a judicial order.
See id. (stating that full settlement was reached, but that the “settlement [was] not
intended for filing”). Rather, by letter filed on November 12, 2009, the Town’s attorney
informed this Court that “the town is withdrawing its complaint in this matter” because
the parties had “successfully resolved this matter.” The Town’s withdrawal of the
complaint concluded Docket No. 298-12-08 Vtec.
The November 2009 Settlement Agreement, provided to the Court by both
parties, established several actions that Defendant was required to take, set out a
timeline for those actions, and provided that Defendant was to pay a $ 5,000 fine at the
time the agreement was signed. Settlement Agreement ¶¶ 1–5 (Nov. 9, 2009).
Specifically, Defendant was required to enter into a boundary line agreement with the
northerly adjoining property owners, establishing the location of their common
boundary line, within sixty days of the Settlement Agreement, that is, by January 8,
2010. Id. ¶ 1.3 In connection with the boundary line agreement, Defendant was
required to obtain a “mylar” showing the agreed boundary line for recording in the
land records. Id. ¶ 2. The boundary line agreement and the “mylar” were required to
be filed in the Town’s land records within seventy days of the Settlement Agreement,
that is, by January 18, 2010. Id. ¶ 3. Within 10 days of the recording of the boundary
line agreement and mylar, Defendant was required to file a zoning permit application
for the mud room and adjoining deck. Id. ¶ 4.
The Settlement Agreement provided that “[t]he Town will not pursue
enforcement for existing violations which will be cured by this Agreement so long as
3 The northerly adjoining property owners, the Coutures, were not a party to the 2008
enforcement action and were not signatories to the Settlement Agreement.
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[Defendant] complies with its terms.” Id. ¶ 7. It also provided that, “[i]n the event that
[Defendant] does not carry out the terms of this Agreement, the town will be entitled to
refile a notice of violation and recover all costs and attorney’s fees in any enforcement
action.” Id. ¶ 8.
Defendant proceeded to complete each of the actions required by the
settlement—entering into the boundary line agreement, filing the agreement and mylar
in the land records, and filing the required zoning application with the Town.
Defendant’s Statement of Material Facts ¶ 1 (May 28, 2010). However, Defendant
completed each of the actions some weeks later than the timeline established in the
Settlement Agreement. Town’s Statement of Material Facts ¶ 15. Specifically,
Defendant entered into the boundary line agreement with the adjoining property
owners on February 4, 2010, twenty-seven days after the January 8, 2010 date. Id. ¶ 16.
Defendant filed the boundary line agreement in the land records on February 18, 2010,
thirty-one days after the January 18, 2010 date, id. ¶ 17, and filed the mylar in the land
records on March 9, 2010, fifty days after the January 18, 2010 deadline. Id. ¶ 18.
Defendant filed a complete zoning permit application on March 26, 2010, seventeen
days after the recording of the boundary line agreement and mylar, that is, seven days
after the ten-day time period established in the Settlement Agreement. Id. ¶¶ 19–20.
On March 29, 2010, the Town filed the complaint in the present enforcement
action, seeking removal of the mud room and deck and seeking a fine of forty dollars
per day from February 13, 2006, with credit being given for the $5,000 fine already paid
under the Settlement Agreement.4 The complaint alleges both that Defendant “has not
done the things he was supposed to do pursuant to the terms of the settlement
4
Although the complaint was not filed with this Court until March 29, 2009, the
summons and complaint had been served on Defendant on March 6, 2010, prior to the
time at which Defendant completed some of the actions required under the Settlement
Agreement.
4
agreement” and that Defendant “has never corrected the zoning violations in the
original notice of violation.” Id. ¶¶ 10, 11.
Analysis
Defendant has now moved for summary judgment asking the Court to dismiss
the case for lack of jurisdiction, or in the alternative, for lack of any basis for
enforcement due to Defendant’s completion of all the actions required under the
Settlement Agreement. See generally Defendants’ Motion for Summary Judgment
(May 28, 2010) [hereinafter Motion for Summary Judgment]; Defendant’s Reply to
Town of Newbury’s Response to Motion for Summary Judgment (July 8, 2010)
[hereinafter Defendant’s Reply].
Under 24 V.S.A. § 4451, municipal administrative officers are authorized to issue
Notices of Violation to persons who violate any provision of a municipal bylaw. After a
Notice of Violation is issued, it can be appealed to an appropriate municipal panel
within fifteen days. Id. § 4465(a). If the notice is not appealed, it becomes final and no
party can later contest the existence of the violation, either directly or indirectly. See id.
§ 4472(d) (If an act or decision of the administrative officer is not appealed to the
municipal panel, “all interested persons affected shall be bound by that decision or act
of that officer . . . and shall not thereafter contest, either directly or indirectly, the
decision or act.”). After a Notice of Violation has been issued, and the seven days to
cure the violation has elapsed, a municipality is then authorized under 24 V.S.A. § 4451
and § 4452 to bring an enforcement action in this Court regarding that violation. See 24
V.S.A. § 4451(a) (stating that an enforcement action can be brought after “the alleged
offender has had at least seven days' warning notice by certified mail”).
In this case, the February 2006 Notice of Violation was not appealed by
Defendant under 24 V.S.A. § 4465. Defendant’s failure to appeal that Notice of
Violation made it final under 24 V.S.A. § 4472(d), so that Defendant cannot contest the
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fact of the violation in the present action or otherwise. Of course, the circumstances of
the violation, and any remedial work since that time, may be considered by the Court in
determining an appropriate penalty amount. See generally, e.g., Town of Northfield v.
Drown, No. 218-10-08 Vtec (Vt. Envtl. Ct. Apr. 6, 2010) (Durkin, J.) (When a defendant
fails to appeal a Notice of Violation, and therefore the existence of the violation is
established and cannot be challenged, this fact does not conclusively establish any
amount of penalty; the Court will conduct a separate analysis during the penalty phase
and fashion an appropriate remedy based on the circumstances of the case.); Town of
Greensboro v. Pellegrini, Nos. 87-5-05 Vtec & 157-8-05 Vtec (Vt. Envtl. Ct. Nov. 7, 2006)
(Wright, J.) (same).
The issues presented in the present motion are whether the Settlement
Agreement entered into by the parties, or the Town’s subsequent withdrawal of the
2008 Complaint, prohibit the Town from filing the 2010 Complaint, and whether any
justiciable issue remains in the present enforcement action. Defendant argues that the
Court lacks jurisdiction because the enforcement action “seeks to enforce the settlement
agreement,” which he asserts is not an agreement that the Court has authority to
enforce. Defendant’s Reply, at 3; Motion for Summary Judgment, at 1–2.
The parties mutually agreed not to file the Settlement Agreement with this Court
in Docket No. 298-12-08 Vtec. If the settlement had been signed by the Court or
otherwise been incorporated into a court order, then the Court would have authority
directly to enforce its terms, through a contempt proceeding or other post-judgment
proceeding. See generally, e.g., In re: Three Church Street, Nos. 22-2-06 Vtec & 174-7-06
Vtec (Vt. Envtl. Ct. Dec. 16, 2008) (Wright, J.) (exercising jurisdiction over a settlement
agreement that was issued as a “consent order” by the Court).5
5 The validity of a settlement agreement that is not incorporated into a court order—at
least in the context of divorce proceedings and when a final decree has been entered by
the court—may be interpreted by the court with jurisdiction of the original action. See
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However, the fact that Docket No. 298-12-08 Vtec was instead withdrawn by the
Town does not mean that the Court lacks jurisdiction to adjudicate the present
enforcement action. Defendant’s characterization of the action brought by the Town as
one to “enforce the Settlement Agreement” is inaccurate. Although the Town
references the Settlement Agreement in its Complaint, see 2010 Complaint ¶¶ 8–10, the
action that it has brought is one for enforcement of the original violations stated in the
2006 Notice of Violation, not to enforce the terms of the Settlement Agreement.
Regardless of whether Defendant has complied with the terms of the Settlement
Agreement, and regardless of whether the delay in the remedial actions should be
attributed to Defendant or should be considered to be noncompliance with the
Settlement Agreement, the Town has statutory authority to file this enforcement action
of the 2006 violations under 24 V.S.A. § 4451 and § 4452. Without “enforcing” the
Settlement Agreement, the Court may consider the text of the Settlement Agreement,
together with the other circumstances of Defendant’s compliance efforts, in determining
the appropriate relief, if any, in the present enforcement action.
Similarly, the fact that the Town previously filed an enforcement action
regarding the 2006 violations, and subsequently withdrew that action based on an
agreement of the parties, does not impair the Town’s ability to file the 2010 Complaint.
The withdrawal of the 2008 Complaint was not done with prejudice, and no order was
Quinn v. Schipper, 2006 VT 51, ¶ 7, 180 Vt. 572 (even when a document is found to be a
“separate enforceable contract[],” it may still be considered “part of the divorce
proceedings, and . . . within the family court's jurisdiction” (quoting Manosh v.
Manosh, 160 Vt. 634, 634 (1993) (mem.))); Manosh, 160 Vt. at 634 (stating that
“[a]lthough [it is] an independent contract, the settlement agreement was part of the
divorce proceedings, and is within the family court's jurisdiction”). On the other hand,
after the underlying action in a civil case has been dismissed—in a case in which no
judgment order or decree incorporated or approved the terms of the settlement
agreement—the “original action is thus no longer on the docket,” and the Supreme
Court has ruled that the settlement agreement is unenforceable in that original action.
Petition of Telesystems Corp., 148 Vt. 411, 413 (1987).
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entered by the Court limiting the Town’s authority to refile a complaint based on the
2006 violations. Defendant acknowledges in his motion that “[t]he Town’s only remedy
for injury under that contract is to file a new complaint against [Defendant].” See
Motion for Summary Judgment, at 2. Accordingly, this Court has jurisdiction of the
enforcement action under 24 V.S.A. § 4451 and § 4452.
Defendant also argues that this enforcement action should be dismissed because
the complaint does not present a sufficient “case or controversy”; that is, Defendant
argues that the Town has suffered no “injury” that can be “redressed” through this
enforcement action. Motion for Summary Judgment, at 3. Defendant argues that the
2006 violations that were the subject of the 2006 Notice of Violation have since been
cured under the Settlement Agreement, and therefore there is no injury to redress. Id.
at 3–4.
Defendant may be correct as to any remedial relief sought by the Town in the
2010 Complaint, but the fact that a violation has been remedied does not resolve the
issue of whether or how much of a penalty should be paid for the past violation. This
Court has made it clear that “remedial acts do not make their past zoning transgressions
evaporate” and “[z]oning violators who have cured may nonetheless be found to owe
civil fines for their past violations” under 24 V.S.A. § 4451 and § 4452. In re: Cote Notice
of Violation, Nos. 273-11-06 & 165-8-07 Vtec, slip op. at 3 (Vt. Envtl. Ct. Dec. 5, 2007)
(Durkin, J.). See also id. at 4 (“Because § 4451 provides statutory authority to impose
fines for violations of zoning bylaws, whether such violations remain pending at trial or
been previously corrected, a justiciable issue remains for this Court to adjudicate,
whether Appellant here has completed the necessary remedial work or not.”). Any
remedial acts performed by Defendant under the Settlement Agreement or otherwise
do not eliminate the issue of whether a penalty should be paid attributable to the period
of violation, if any, and therefore a justiciable issue remains for this Court to adjudicate
in the present enforcement action.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Defendants’ Motion for Summary Judgment is DENIED, as this enforcement action
is properly before the Court under 24 V.S.A. § 4451 and § 4452. A telephone conference
has been scheduled (see enclosed notice); please be prepared to discuss the scheduling
of any remaining proceedings in this matter.
Done at Berlin, Vermont, this 28th day of July, 2010.
_______________________________________________
Merideth Wright
Environmental Judge
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