1 STATE OF VERMONT

ENVIRONMENTAL COURT
} Town of Calais, } Plaintiff, } } v. } Docket No. 142-6-06 Vtec } Barbara Noordsij, }

Defendant. } }

Decision and Order on Cross-Motions for Partial Sum mary Judgment The Town of Calais brought an enforcement action ag ainst Defendant Barbara Noordsij, asserting violations of the conditions of her zoning permit for the construction of a barn. The Town is represented by Joseph McLea n, Esq.; Defendant is represented by David Blythe, Esq. Both parties have moved for par tial summary judgment. The following facts are undisputed unless otherwise noted.

Defendant owns property at 8598 County Road in the Town of Calais, which is improved with a single-family house and a detached garage with an attached shed. This location is south of the Maple Corner Village zonin g district. In August of 2005, Defendant applied for a zoning permit to construct a 20' x 30 ' barn on her property, oriented diagonally to the road. The permit application inc luded a sketch showing the nearest
corner of the barn to be 48 feet from the centerlin e of County Road. The Zoning Administrator issued the zoning permit authorizing the construction of the barn as shown on the application. The parties do not dispute that the setback actuall y required under the Calais Land1 Defendant asserts that she believed that the requ ired setback was 40 feet. While

in the enforcement action the parties may dispute w hether this belief was reasonable or should affect any penalties that may be sought in the enforcement action, her state of mind or belief is not material to the motions now before the Court.

2 This may have been intended to refer to 6 feet, 6 inches (6' 6") rather than 6.6 feet, as the DRB decision refers to the construction of the barn 41.5' (that is, 411⁄2 feet) from the centerline as opposed to the required 48 feet.

2 Use and Development Regulations (Regulations) for D efendant’s property is 65 feet. Regulations, Table 2.2(E). The Regulations state that the setback is 40 feet, 1 except along the right-of-way of three specific roadways, includi ng “State Aid Highway #1 [County Road] southerly of the Maple Corner Village Distri ct.” Regulations, Table 2.2(E). In mid-December of 2005 the Zoning Administrator n oticed construction equipment on Defendant’s property. When she checked her reco rds to determine whether a zoning permit had been issued for the property, she realize d that she had made a mistake in the permit regarding the required setback. When she me asured the setback to the barn, the
actual measurement was 411⁄2 feet from the corner of the barn to the centerline of County
Road. The Zoning Administrator advised Defendant of the p roblem on December 20, 2005; on December 21, 2005 the Zoning Administrator againchecked the site and found that construction had continued. She proceeded to issue a Notice of Violation on December 21, 2005, citing as the violation that the barn was con structed within the 65' setback as well as
that it was constructed 6.6 feet 2 closer to the centerline of County Road than the 4 8 feet specified on the permit application. Defendant filed a timely appeal of the Notice of Vi olation with the DRB, and also requested a variance for the as-built location of the barn. The DRB concluded that, under the doctrine of estoppel, “the town is barred from enforcing the 65' setback requirement”3

with respect to Defendant’s barn, and stated that, “ [f]or the purposes of this decision the DRB will consider that Ms. Noordsij’s barn is subje ct to a 40' setback requirement.” On the other hand, the DRB upheld the portion of the NOV a ddressing Defendant’s construction
of the barn in a location different from the locati on that she represented in her permit application. The DRB also ruled that the barn did not meet the criteria for a variance, and therefore denied the request for a variance. In its decision, the DRB also suggested that, giventhe circumstances of this matter, “the issuance of an ‘as built’ permit . . . would s eem to be in order.” Neither Defendant nor the Town appealed the DRB decision. Instead, on Mar ch 2, 2006, Defendant’s attorney wrote to the Zoning Administrator requesting that “ in your capacity as Zoning Administrator you issue an ‘as built’ approval of the barn structure.” On March 9, 2006, the Zoning Administrator sent Defe ndant’s attorney an email, stating that she had received his “letter of March 2, 2006 regarding Barbara Noordsij’s Zoning Permit” and informing him that she needed to do some research on the matter, that she would be out of town until “almost April” due t o the illness of a family member, and that she would “make every effort to come to a deci sion by the end of April.” On May 2, 2006, followed by a letter dated May 4, 2006, the Tow n’s attorney advised Defendant’s attorney that the Town intended to commence an enfo rcement action; the letter offered to discuss “any proposal that your client may have” to bring the property into compliance.

The parties do not dispute that Defendant held a va lid permit to construct the barn with a 48-foot setback; the Town does not claim tha t the setback should be 65 feet. That is, as of the issuance of the permit, Defendant was authorized to construct the barn with a 48- foot setback, due to the terms of the permit. It w ould have been a permitted but nonconforming structure, because it was “improperly authorized as a result of error by the administrative officer.” 24 V.S.A. §4303(14). Any future changes to it should have been4

treated under §3.8(B) of the Regulations pertaining to the expansion or alteration of noncomplying structures. In Calais, while the Zoni ng Administrator is not herself authorized to approve an enlargement of a noncomply ing structure, such as this one, that would increase the degree of noncompliance, §3.8(B) (3), such an application may be made to the DRB under §3.8(B)(4). Under that section, th e DRB may approve an expansion of a noncomplying structure, applying conditional use re view under §5.3 as well as finding that the expansion “will have no adverse effect on the p ublic health, safety or welfare.”

The Town first argues that, since Defendant did notappeal the DRB’s decision upholding the Notice of Violation and denying the v ariance, she can not now claim to have a valid permit as a defense. 24 V.S.A. §4472(d). On the one hand, the Town is correct that
Defendant cannot now claim that she did not violate the 48-foot setback approved in her original permit. The courts strictly construe the “broad and unmistakable language of [§4472(d)] to prevent anykind of collateral attack on a zoning decision tha t has not been properly appealed . . . .” In re Ashline , 175 Vt. 203, 207 (2003), 2003 VT 30 at ¶ 8, quotin g City of S. Burlington v. Dep't of Corr. , 171 Vt. 587, 588–89 (2000) (mem.) (brackets and emphasis in original). On the other hand, that failure to appeal does not prevent Defendant from seeking approval of the as-built location, that is, to brin g the property into compliance in the way suggested by the DRB in its decision, as opposed to through the injunctive relief sought by the Town in the present enforcement action. In re Newton Enterprises , 167 Vt. 459, 462–63 (1998). In any event, such a permit, whether it were deemed to be issued, as Defendant argues, or whether it were to be approved by the DR B under §3.8(B)(4), would preclude the injunctive relief (to move or take down the por tion of the barn closer than the 48-foot setback) sought in the Town’s enforcement action, bu t it would not be a defense to5

monetary penalties for that violation.

Defendant argues that, since the Zoning Administrat or did not respond to her attorney’s March 2, 2006 letter (requesting the Zon ing Administrator “in [her] capacity as Zoning Administrator” to issue as-built approval of the barn) by either approving or denying the request, Defendant is entitled to a “de emed issued” permit pursuant to 24 V.S.A. §4448(d). That section provides that if a z oning administrator fails to act “with regard to a complete application for a permit withi n 30 days, whether by issuing a decision or by making a referral to the DRB, the permit is “d eemed issued on the 31st day.”

However, as Defendant never submitted a “complete a pplication” for the amended permit in the as-built location, the deemed-issuanc e provisions of 24 V.S.A. §4448(d) were never triggered. In order for a zoning permit to b e deemed to be issued under 24 V.S.A. §4448(d), the applicant must first have filed a “co mplete application.” All that was filed in the present case was a letter requesting that the Z oning Administrator “in [her] capacity as Zoning Administrator,” issue an as-built approval of the barn structure. First and most importantly, the Zoning Administrato r did not have authority “in [her] capacity as Zoning Administrator,” to issue anas-built approval of the barn. Rather, that authority is with the DRB under the specific r equirements of §3.8(B)(4) of the Regulations. Moreover, the March 2, 2006 letter fail ed completely to meet the application requirements of §1.6(A) of the Regulations. Even i f treated as an application for a permitted use within the jurisdiction of the ZoningAdministrator, the letter was not submitted on the required forms, was not accompanie d by the application fee, and did not contain the required information. In particular, th e letter did not contain the required plan that “accurately depicts” the “location, footprint, and height of existing and proposed structures and additions.” Regulations, §1.6(A)(1). Further, as the proposed amendment6

required conditional use approval by the DRB under §3.8(B)(4), the letter also failed to include an application “prepared and submitted in a ccordance with Section 5.2” as required by §1.6(A)(2). While the March 2, 2006 letter did request the Zoni ng Administrator to let Defendant’s attorney know if she “need[ed] anything different or additional to act on this request,” her email in response just a week later, e xplaining that she would be out of town and that she would need to research the request, wa s sufficiently responsive to that offer; the subsequent delay did not constitute “deliberate or negligent inaction” on the part of the Zoning Administrator. See In re McEwing Services, LLC , 177 Vt. 38, 46 (2004), 2004 VT 53, ¶21, citing In re Fish, 150 Vt. 462, 464 (1988).

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that both Motions for Partial Summary Judgment are GRANT ED in part and DENIED in part,
as follows: As Defendant failed to appeal the DRB’s decision up holding the Notice of Violation, she cannot contest that her failure to co nstruct the barn in the location approved in her original permit was a violation. As the March 2, 2006 letter was not a complete appl ication for an amended as-built permit within the Zoning Administrator’s “ capacity as Zoning Administrator,” her delay in acting on the request i n that letter did not result in any deemed issuance of the requested approval. However, Defendant remains entitled to submit an ap plication to the DRB under §3.8(B)(4) of the Regulations for approval of the as-built location of the barn. If that application is approved, it will be a defen se to the injunctive relief sought by the Town in its complaint, but not as to monetary p enalties for the period of
violation.7

We have scheduled a telephone conference (see enclo sed notice) to discuss the appropriate next steps in this enforcement case, in cluding whether Defendant will be submitting a proper application for as-built approv al of the barn under §3.8(B)(4); if so, whether any aspect of this enforcement case should be held in abeyance until that application is ruled on; and whether mediation woul d be appropriate.

Done at Berlin, Vermont, this 4 thday of April, 2007.

_________________________________________________ Merideth Wright Environmental Judge