State of Vermont Superior Court—Environmental Division

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In re Losier Variance Application Docket No. 79-4-08 Vtec (Appeal from ZBA decision)

Title: Motion to Enforce Judgment (Filing No. 9) Filed: April 6, 2011 Filed By: William P. Neylon, Attorney for Appellee Town of Maidstone Response in Opposition filed on 5/9/11 by Oliver L. Twombly, Attorney for Appellants/Applicants John and Paulette Losier Reply filed on 5/23/11, and Supplemental Reply file d on 6/8/11, by William P. Neylon, Attorney for Appellee Town of Maidstone
__ Granted _X_ Denied ___ Other

The Town of Maidstone (“Town”) has moved for enfor cement of our July 13, 2010 Decision and accompanying Judgment Order denying a variance requ est by John and Paulette Losier (“Applicants”) to exceed a height limitation established for the zoni ng district in which the Losiers’ property lies. W e must DENY this motion because the prior Judgment Order merel y denied Applicants’ requested variance and did not address the question of whether a zoning vi olation presently exists on their property. The Court’s July 13, 2010 Decision and Judgment Ord er concluded that Applicants were not entitled to a variance from the applicable zoning p rovisions. We were not asked and did not opine upo n the question of whether a violation existed. 1 Our prior Order does not require Applicants to ta ke any specific action. Rather, the proper vehicle for th e Town to seek enforcement in this Court of an alle ged ordinance violation is via an enforcement action, f ollowing the issuance of a notice of alleged zoning violation. 2 See 24 V.S.A. §§ 1974a(d), 4451(a), 4452. The parties may find Nordlund v. Van Nostrand instr uctive on this point, as it presents circumstances similar to those here. See No. 42-3- 10 Vtec (Vt. Super. Ct. Envtl. Div. July 7, 2010) (Durkin, J.), aff’d, 2011 VT 79. In Nordlund, Lind a Nordlund sought to enforce, among other decisions

, an Order of this Court that denied the Van Nostrand s a variance from a right-of-way requirement they needed to satisfy in order to obtain a zoning permi t for their to-be-developed parcel. Id., slip op. at 3. Ms. Nordlund argued that that the Court’s denial of the Van Nostrands’ variance application, in effect

, prohibited them from using the right-of-way. Id. We explained, in dismissing the claim, that this wa s not

1 The garage for which Applicants sought a variance from the 26 foot height limitation was constructed prior to their variance request. See In re Losier Variance Application, No. 79-4-08 Vtec, slip op. at 2−3, ¶¶ 7−10 (Vt. Super. Ct. Envtl. Div. July 13, 2010) (Durkin, J.).

2 The Town asserts that it served Applicants with a notice of violation on July 6, 2007. See Town’s M otion to Enforce Judgment, filed April 6, 2011. That may be the same notice of violation that this Court refer enced in its prior Decision on Cross-Motions for Summary Judgmen t. See In re Losier Variance Application, No. 79-4 -08 Vtec, slip op. at 3, ¶¶ 9−10 (Vt. Super. Ct. Envtl. Div. Jul. 13, 2010) (Durkin, J.). The Court noted that the Town had at that time not presented any evidence on “whether th e Town took any action on the notice of violation.” Id. at n.2. The Court has no knowledge of the Town filing an en forcement complaint based upon the July 6, 2007 not ice of violation.In re Losier Variance App., No. 79-4-08 Vtec (Entry Order on motion to enf. Judgment) (08-01-11) Page 2 of 2.

the case—the variance denial did not establish an e nforceable ordinance violation, nor did it make any enforceable prohibitions concerning use of the righ t-of-way. Id., slip op. at 3–4. We stated that “t here must be a decision, either from an appropriate muni cipal panel or this Court, specifically stating tha t [the Van Nostrands’] use is prohibited” in order for us to enforce any such a prohibition. Id., slip op. at 4. When Ms. Nordlund thereafter appealed, the Vermont Supreme Court affirmed our determination, stating that “[t]he Environmental Court lacks jurisdiction to consider the relief plaintiff pursues.” Nordlun d v. Van Nostrand, 2011 VT 79 ¶ 17. Here, similarly, our prior Judgment Order denied Ap plicants’ variance application, but does not establish an enforceable ordinance violation or pro vide an enforceable prohibition on Applicants’ use of their land. Because plaintiff here seeks enforceme nt of a term that does not exist in our prior Order , we must DENY the Town’s motion to enforce judgment.

_________________________________________ August 1, 2011 _____ Thomas S. Durkin, Judge Date

=================================================== ======================== Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: Oliver L. Twombly, Attorney for Appellants/Appl icants John and Paulette Losier William P. Neylon, Attorney for Appellee Town o f Maidstone
Interested Person Brenda J. Tilton
Interested Person Norman A. Vashaw