1 STATE OF VERMONT

ENVIRONMENTAL COURT

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Nowicki Building Permit } Docket No. 77

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‐ 05 Vtec;

(Appeal of Nowicki); }

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Richards v. Dechert, et al.; and } Docket No. 156

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‐ 05 Vtec; and

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Nowicki NOV Appeal } Docket No. 220

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‐ 05 Vtec

(Appeal by Richards) }

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Decisions on Pending Motions

There are three actions now pending in this Court involving one common

question concerning the residential development of a parcel of land in the Town of

Norwich (Town). These appeals represent the Court’s third opportunity to resolve

litigation between the developer and his neighbor, Appellee Stuart L. Richards. This

Decision is intended to address all motions pending in all three cases, as well as legal

issues that are ripe for resolution at this stage of each proceeding.

In all three pending dockets, Appellant Paul Nowicki (hereinafter Developer) is

represented by Gerald R. Tarrant, Esq.; Appellee Stuart Richards, joined by his wife

Miriam in Docket No. 156

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‐ 05 Vtec (hereinafter referred to individually and

collectively as Neighbor), are represented by John D. Hansen, Esq. In Docket No. 156

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‐

05 Vtec, the Town and Zoning Administrator Philip Dechert are represented jointly by

Frank H. Olmstead, Esq. and James F. Carroll, Esq.

Docket No. 77

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‐ 05 Vtec concerns an appeal filed by Developer from a decision

of the Town of Norwich Development Review Board (DRB), denying his application for2 an after

‐ the

‐ fact zoning permit to construct a single

‐ family dwelling at 84 Elm Street.

The second matter, Docket No. 156

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‐ 05 Vtec, is best described as a private enforcement

action initiated by Neighbor against Developer, the Town and the Town Zoning

Administrator. The third and last pending docket is an appeal by Neighbor from the

Zoning Administrator’s decision not to initiate an enforcement action against

Developer, which was upheld by the DRB in its Decision of October 17, 2005.

We first focus our analysis on the first appeal (Docket No. 77

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‐ 05 Vtec) because

the outcome of that appeal is determinative of the issues raised in the other two

pending dockets.

In the first appeal, Neighbor and Developer have filed cross

‐ motions for

summary judgment and replies to those motions. Each party seeks a resolution, in their

respective favor, on all issues raised by Developer’s Statement of Questions, which may

be summarized as follows:

1. Do recent changes in 24 V.S.A. Ch. 117 allow this Court to issue an after

‐ the

‐

fact zoning permit for the construction of a single

‐ family dwelling on 84 Elm

Street?

2. Which law controls when a developer applies for a permit for an already

‐

built structure: the law in effect at the time of construction or the law in effect

when a completed zoning application is filed?

3. Does 24 V.S.A. § 4412(2) (2005) remove restrictive language in the former 24

V.S.A. § 4406(1) (2003), requiring the merger of contiguous existing small lots

in unified ownership? Further, does 24 V.S.A. § 4412(2) now allow

municipalities to adopt or maintain bylaws that are more permissive of the

development of existing small lots?

4. Are the Town of Norwich Zoning Regulations (Regulations) now in effect

consistent with 24 V.S.A. § 4412(2)? and

5. Does Developer’s previously completed construction conform to all currently

applicable zoning requirements, so as to render issuance of a zoning permit

proper?3 Factual Background

For purposes of our analysis of each party’s motions, we note that any facts in

dispute are viewed in a light most favorable to the non

‐ moving party. Toys, Inc. v. F.M.

Burlington Co.

, 155 Vt. 44, 48 (1990). Most of the facts that are material to the pending

appeals are not in dispute. The parties’ disputes center for the most part on the

interpretation of the applicable legal standards. The material facts, including those that

we must view in a light most favorable to the non

‐ moving party, are as follows:

1. In 1996, Developer purchased two adjoining lots at 76 and 84 Elm Street

from an individual who had held joint title to both parcels since 1967. The two lots are

separately described in a single deed by which Developer acquired title in his 1996

purchase.

2. The lot at 76 Elm Street is approximately 14,950 square feet and is known

as parcel 1. The lot at 84 Elm Street is approximately 24,000 square feet and is known as

parcel 2.

3. Both lots are in the Town’s Village Residential zoning district (VR

District). Prior to 1981, the VR District had a minimum lot size requirement of 8,000

square feet. However, when the Town adopted amendments to its Regulations in 1981,

the VR District minimum lot size requirement was increased to 20,000 square feet.

Thus, as of the 1981 zoning amendment, parcel 1 became an undersized lot that did not

then conform to the Regulations.

4. Neighbor owns and resides at the adjoining property at 82 Elm Street,

which is behind parcels 1 and 2. Neighbor accesses his lot by a twenty

‐ foot

‐ wide

private right

‐ of

‐ way that runs from Elm Street along the common border between

parcels 1 and 2. Neighbor’s home generally sits behind parcel 1.

5. Both Neighbor’s property and Developer’s parcel 2 are bounded on the

southwest by Blood Brook.4 6. In 1997, Developer applied for and received a zoning permit to renovate

the house on parcel 1 within its existing footprint. That zoning permit was never

appealed and is now final, pursuant to 24 V.S.A. § 4472(d). Developer subsequently

sold the house on parcel 1 to a third party, who has since resold the property.

7. In September 1999, Developer first applied for a zoning permit to

construct another house on parcel 2. Neighbor appealed the Town’s issuance of that

zoning permit to this Court and then to the Vermont Supreme Court, which eventually

remanded the case to this Court. See In re Appeal of Richards

, 174 Vt. 416 (2002)

(hereinafter Richards I ). After the decision on remand here, Neighbor again appealed to

the Vermont Supreme Court, which issued a decision in In re Appeal of Richards

, 2005

VT 23 (hereinafter Richards II ), on February 5, 2005. We provide a further procedural

history of the parties’ subsequent litigation below.

8. During the pendency of litigation between Neighbor and Developer,

Developer constructed a single

‐ family dwelling on parcel 2 in 1999

‐ 2000 without first

obtaining a final determination as to the validity of the zoning permit for that house.

9. While the appeal of Developer’s first permit application for parcel 2 was

still pending, the Vermont zoning enabling statute relating to existing small lots was

revised and recodified at 24 V.S.A. § 4412(2), effective July 1, 2004.

10. Conscious of the amendments to the applicable provisions of the zoning

enabling statute, Developer filed a second permit application for a house on parcel 2 on

January 5, 2005.

11. In his 2005 application, Developer seeks permit approval for the

previously constructed “L

‐ shaped” single

‐ family residence on parcel 2. This two

‐ story,

56 ′ x 40 ′ house has a front setback of seventy feet, a rear setback of twenty

‐ six feet, a

right side setback of forty

‐ eight feet, a left side setback of sixty feet, and is twenty

‐ three

feet high. Attached to the northeasterly end of the house on parcel 2 is a garage that is

accessed from the twenty

‐ foot

‐ wide right

‐ of

‐ way also serving Neighbor’s house.5 12. Developer’s second zoning permit application was approved by the Town

Zoning Administrator on January 18, 2005. Neighbor appealed that approval to the

DRB, which granted his appeal and overturned the permit approval by its Decision on

April 1, 2005. Developer filed his notice of appeal of the DRB’s denial with this Court

on April 15, 2005.

13. Subsequent to both the DRB’s denial of Developer’s second permit

application and Developer’s appeal of that decision, Neighbor filed a complaint in this

Court on August 1, 2005, against Developer, the Town and the Town’s Zoning

Administrator, Philip Dechert. 1 This complaint is the subject of Docket No. 156

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‐ 05

Vtec. By this action, Neighbor seeks enforcement of Developer’s alleged violation of the

Zoning Regulations for constructing a house on parcel 2 without a valid zoning permit.

14. All defendants named in the complaint in Docket No. 156

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‐ 05 Vtec have

moved for dismissal of that action. We address these motions below.

15. It appears that, since the conclusion of the proceedings before the Supreme

Court in Richards I and Richards II

, Neighbor has been attempting to convince the

Zoning Administrator to initiate an enforcement action against Developer. By letter

dated June 16, 2005, the Zoning Administrator advised that he did not agree “that

[Developer] is [now] in violation of the zoning regulations” in light of his approval of

Developer’s 2005 permit and the appeal pending in regards to that permit application in

Docket No. 77

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‐ 05 Vtec. A copy of the Zoning Administrator’s June 16, 2005 letter was

attached to Developer’s Motion to Dismiss in Docket No. 156

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‐ 05 Vtec as Attachment 8.

16. Because Neighbor regarded the Zoning Administrator’s June 16, 2005

letter as a final determination, he appealed the decision not to pursue an enforcement

action to the DRB. By Decision dated October 17, 2005, the DRB denied Neighbor’s

1 An interested person, as defined in 24 V.S.A. § 4465(b), may bring an action in this Court to enforce a

decision from an appropriate municipal panel, such as the DRB in this case. See 24 V.S.A. § 4470(b).

Section 4470(b) authorizes the action to be in the form of a “mandamus, injunction, process of contempt,

or otherwise.” Id

.6 appeal, effectively affirming the Zoning Administrator’s determination that an

enforcement action by the Town was not warranted at that time. Neighbor thereafter

appealed the DRB’s decision to this Court. That appeal is the subject of Docket No. 220

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10

‐ 05 Vtec.

Procedural Background

Whenever parties in a specific dispute appear on multiple occasions before the

trial court and our Supreme Court, the procedural history of the cases requires careful

recitation. Such is the case here. We find that the following procedural history is

relevant to our consideration of the pending dockets:

1. In Richards I

, the Supreme Court determined that because Developer’s

parcel 1 did not meet the 20,000 square

‐ foot minimum lot size for the Village

Residential zoning district, Developer could not develop parcel 2 independent of the

already developed parcel 1. Richards I

, 174 Vt. at 420–21. The Court found that

Regulations § 8, allowing the development of certain lots not meeting the applicable

minimum lot size, conflicted with and was therefore superseded by the provision in the

Vermont zoning enabling statute relating to existing small lots, which at that time was

codified in the former 24 V.S.A. § 4406(1) (2003). Richards I

, 174 Vt. at 421–23.

2. The Court also found in Richards I that Developer had a valid septic

permit for parcel 2, which was issued under the Town’s septic ordinances and was the

subject of an earlier Supreme Court decision in Richards v. Nowicki

, 172 Vt. 142, 151

(2001). Richards I

, 174 Vt. at 425. The Court concluded in Richards I that, as of 1996

when Developer purchased his property, parcels 1 and 2 had already merged by

operation of law under the language of 24 V.S.A. § 4406(1) when the Town adopted the

20,000

‐ square

‐ foot minimum lot size in 1981. The Court determined that there was a

remaining question of whether the right

‐ of

‐ way separating parcel 1 and parcel 2

prevented the merger that otherwise took place in 1981, and therefore remanded the

appeal of Developer’s first zoning permit application to the Environmental Court for7 the specific purpose of determining whether the right

‐ of

‐ way “because of location and

function” separated parcels 1 and 2 so that they may not be used as one lot. Richards I

,

174 Vt. at 426.

3. This Court rendered its decision on that remand on November 7, 2003,

finding that the present and possible future use and function of the right

‐ of

‐ way

prevented the parcels from merging. Neighbor again appealed to the Supreme Court.

4. In its February 9, 2005 Entry Order in Richards II

, the Supreme Court

reversed this Court’s 2003 decision and concluded that the evidence presented lacked a

foundation for the conclusion that, as of 1981 when the Town’s 20,000 square

‐ foot

minimum lot size requirement was enacted, the use of the right

‐ of

‐ way effectively

separated parcel 1 and parcel 2 so as to prevent the merger of the previously separate

lots by operation of law. Thus, the Supreme Court concluded that under the provisions

of 24 V.S.A. § 4406(1) (2003) and the precedent of Wilcox v. Vill. of Manchester Zoning

Bd. of Adjustment

, 159 Vt. 193 (1992), parcels 1 and 2 merged in 1981 by operation of

law to form a single conforming lot, thereby preventing the development of a second

single

‐ family residence on parcel 2—the lot at 84 Elm Street. Richards II

, 2005 VT 23,

¶ 12.

5. Prior to the Supreme Court’s Decision in Richards II

, Developer filed his

second application for a zoning permit on January 5, 2005, now the subject of pending

Docket No. 77

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‐ 05 Vtec.

Discussion

I. Res judicata

At the outset, we address Neighbor’s argument that this Court does not have

jurisdiction over the first appeal, based on the principals of res judicata, in light of the

Supreme Court’s decision to deny Developer’s zoning permit in Richards II

. While

Neighbor is correct that the parties and property in Docket No. 77

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‐ 05 Vtec are

identical to those in Richards I and Richards II

, we note that the statute central to the8 Supreme Court’s holdings in Richards I and Richards II

, the former 24 V.S.A. § 4406(1)

(2003), is no longer in effect. Thus, the pending appeal is not barred by the doctrine of

res judicata.

The doctrine of res judicata “bars the litigation of a claim or defense if there

exists a final judgment in former litigation in which the ‘parties, subject matter and

causes of action are identical or substantially identical.’” Berlin Convalescent Ctr. v.

Stoneman

, 159 Vt. 53, 56 (1992) (quoting Berisha v. Hardy

, 144 Vt. 136, 138 (1984)). In

this instance, Developer’s action is not barred by the doctrine of res judicata because the

cause of action in this appeal involves the interpretation of Vermont’s new existing

small lot statute, 24 V.S.A. § 4412(2) (2005), as opposed to the former existing small lot

statute upon which the Supreme Court based its decision in Richards I and Richards II

.

We are directed to apply the law in effect when a complete application is filed.

In re Champlain Oil Company

, 2004 VT 44, ¶ 8 (citing Smith v. Winhall Planning

Commission

, 140 Vt. 178, 181

‐ 82 (1981)). 2 Developer filed his present application for a

zoning permit on January 5, 2005, after the effective date of the statutory changes to the

Vermont Planning and Development Act. See 2003, No. 115 (Adj. Sess.), § 119(a), as

corrected by 2003, No. 122 (Adj. Sess.), § 296(1)(a)(2) (stating that the changes pertaining

to local planning and bylaws, including 24 V.S.A. § 4412(2) shall take effect July 1, 2004).

Thus, following the Supreme Court’s line of analysis in Richards I

, 174 Vt. at 418–19, we

must determine whether 24 V.S.A. § 4412(2), the new statutory provision regulating the

development of existing small lots, authorizes this Court to treat parcel 1 as an existing

small lot, which would then allow Developer to develop parcel 2 as a separate,

conforming lot.

2 The facts in Champlain Oil and Smith are slightly different than the application here, in that they

involved an amendment to the zoning regulations initiated while a permit application was pending.

Neighbor here has not cited us to precedent with a fact pattern identical to the pending appeal (i.e.:

change in zoning law occurred after construction was completed, but before a permit application was

submitted). We believe the Champlain Oil and Smith precedents are most applicable and therefore

employ them here.9 II. Definitions of existing small lots

It is undisputed that the Zoning Regulation amendments in 1981 increased the

minimum lot size to 20,000 square feet for the VR District. At that time, parcel 1

consisted of 14,950 square feet and thus did not conform to the Regulations. As our

Supreme Court held in Richards I

, because Developer owned both nonconforming

parcel 1 and the adjoining undeveloped parcel 2, the two lots merged by operation of

law for the purposes of zoning, pursuant to the language of 24 V.S.A. § 4406(1).

Richards I

, 174 Vt. at 421.

The Supreme Court’s ruling that parcels 1 and 2 had merged as of the zoning

amendment in 1981, preventing the independent development of parcel 2, was based on

the Court’s conclusion that the Town’s provision allowing for development of existing

small lots, Zoning Regulations § 8, was “more permissive than the state statute,”

Richards I

, 174 Vt. at 422. The Court found that § 8 failed to conform to the state statute,

and interpreted that statute as limiting a municipality’s control over the development of

undersized lots. Richards I

, 174 Vt. at 424.

In ruling that § 8 was invalid, the Court specifically found that 24 V.S.A.

§ 4406(1) embodied one of the central purposes of the state zoning statute—the

elimination of nonforming uses. Richards I

, 174 Vt. at 424. The Court specifically noted

that:

Where our Legislature has spoken clearly about the circumstances under

which existing small lots may be developed, we will not give effect to a

municipal ordinance that would allow development under more

expansive circumstances. The municipality has no authority to overrule

the clear intent of the Legislature.

Id

. at 424–425 (citation omitted). See also In re McCormick Mgmt. Co.

, 149 Vt. 585, 589–

90 (1988) (a goal of zoning is to eliminate nonconforming uses).10 We are now faced with the task of interpreting the new enabling statute relating

to undersized lots, 24 V.S.A. § 4412(2). 3 When construing statutes, our primary goal is

to give effect to the Legislature ʹ s intent. Herrick v. Town of Marlboro

, 173 Vt. 170, 173

(2001). The definitive source of legislative intent is the statutory language, by which we

are bound unless it is uncertain or unclear. Id

.

At first glance, the task of comparing the former statute, 24 V.S.A. § 4406(1), with

the now applicable statute, 24 V.S.A. § 4412(2), appears straightforward. Subsection (C)

was added to the new statute, which states in its entirety that “Nothing in this

subdivision (2) shall be construed to prohibit a bylaw that is less restrictive of

development of existing small lots.” The directness of this language suggests that a

3 The applicable provisions of 24 V.S.A. § 4412 are as follows:

Notwithstanding any existing bylaw, the following land development provisions shall apply in

every municipality:

. . . . . (2) Existing small lots. Any lot that is legally subdivided, is in individual and

separate and nonaffiliated ownership from surrounding properties, and is in existence on

the date of enactment of any bylaw, including an interim bylaw, may be developed for

the purposes permitted in the district in which it is located, even though the small lot no

longer conforms to minimum lot size requirements of the new bylaw or interim bylaw.

(A) A municipality may prohibit development of a lot if either of the following

applies:

(i) the lot is less than one

‐ eighth acre in area; or

(ii) the lot has a width or depth dimension of less than 40 feet.

(B) The bylaw may provide that if an existing small lot subsequently comes

under common ownership with one or more contiguous lots, the nonconforming lot

shall be deemed merged with the contiguous lot. However, a nonconforming lot

shall not be deemed merged and may be separately conveyed if all the following

apply:

(i) The lots are conveyed in their preexisting, nonconforming configuration.

(ii) On the effective date of any bylaw, each lot was developed with a water

supply and wastewater disposal system.

(iii) At the time of transfer, each water supply and wastewater system is

functioning in an acceptable manner.

(iv) The deeds of conveyance create appropriate easements on both lots for

replacement of one or more wastewater systems, potable water systems, or both,

in case there is a failed system or failed supply as defined in 10 V.S.A. chapter 64.

(C) Nothing in this subdivision (2) shall be construed to prohibit a bylaw that is

less restrictive of development of existing small lots.11 Vermont municipality, such as the town here, could maintain an ordinance more

permissive than the state statute. However, one must read the statute in its entirety

before arriving at a conclusion. Davis v. Hunt

, 167 Vt. 263, 267 (1997) (in construing a

statute we look to its entirety and attempt to harmonize its constituent parts).

The meaning of the phrase “existing small lots” in subsection (C) can be found in

the prior language of that very statutory section. The first provision of 24 V.S.A.

§ 4412(2) is titled “ Existing small lots ” and is followed by definitional language. See

supra note 3. Thus, subsection (C) authorizes a municipality to maintain regulations

less restrictive of development of parcels that qualify as “existing small lots,” as that

term is defined by 24 V.S.A. § 4412(2). In light of the Legislature’s decision to employ

the phrase “existing small lots” in subsection (C), we conclude the facts here do not

allow for the independent development of lots, such as parcel 2, that do not qualify

under this defined term.

This case causes some to recall the familiar maxim that hard cases make bad law.

Such may true here. First, our analysis does not focus upon the conformity of parcel 2

with the applicable lot size requirements. It is undisputed that parcel 2, if it were

regarded as a separate lot, conforms to the applicable minimum lot size. But the parcel

with which it was once held in common, parcel 1, did not conform to the 20,000 square

‐

foot minimum lot size requirement when enacted in 1981, and did not conform to those

requirements when parcel 1 was separately sold to a third party. Further, the concept of

merger by operation of law, also known as “silent merger” or “secret merger”—terms

that were used more frequently after the Richards I decision—is sometimes viewed

with contempt because it occurs without any action by or to the property owner, and

some would say without any direct notice to the property owner. Nonetheless, we are

required to apply the applicable law as written, and will now attempt to fulfill that

responsibility.12 Subsection (C) allows municipalities to be more permissive of development of

“existing small lots.” To qualify as such, 24 V.S.A. § 4412(2) places two requirements on

a parcel: it must be (1) “legally subdivided

. . . [(2)] in individual and separate and

nonaffiliated ownership from surrounding properties, and [(3)] is in existence on the

date of enactment of any bylaw

. . . .” It is undisputed that just before the Town

increased the minimum lot size in the VR District to 20,000 square feet, parcels 1 and 2

existed as separate lots and conformed to the prior 8,000 square

‐ foot minimum lot size

requirement. 4

But it is also undisputed that as of the 1981 zoning revisions, parcel 1, which had

then become nonconforming, was held in common with parcel 2. The consequence of

this joint ownership is that the two lots merged, thereby negating the nonconformity of

lot 1. Richards I at 420–21. Unfortunately, the two merged lots could not be

reconfigured so as to eliminate the nonconformity because their total size, 38,950 square

feet, was less than required to establish two conforming lots under the amended

Regulation (40,000 square feet).

We recognize the general consensus, emphasized by Developer, that § 4412(2) is

more permissive than the former § 4406(1). Developer supplied the Court with some

rather extensive materials on the legislative history of Act 115, of which the revisions to

the existing small lot exemptions were a part. But before we can look to legislative

history, we must first determine that the specific language of a statute is unclear. “If the

statute [to be interpreted] is unambiguous and its words have plain meaning, we accept

the statute’s plain meaning as the intent of the Legislature and our inquiry proceeds no

further.” Wesco, Inc. v. Sorrell

, 2004 VT 102, ¶ 14 (citing Town of Killington v. State

,

172 Vt. 182, 188 (2001)).

4 Because o ur analysis here does not reach the merits of the pending enforcement action, we need not

address Neighbors’ suggestion that because the Supreme Court previously ruled that parcels 1 and 2 had

merged as of 1981, Developer’s subsequent conveyance of parcel 1 should be viewed as an illegal

subdivision.13 The very language of § 4412(2) that is at issue here is identical to the language in

the former § 4406(1): both provisions define an “existing small lot” as one that existed

in a conforming manner, prior to the applicable bylaw or its revision, “in individual and

separate and nonaffiliated ownership from surrounding properties

. . . .” Thus, we have

little trouble interpreting the plain language of this section of the new statute in light of

the Supreme Court’s tremendous focus on that language in their Richards I decision.

We find it impossible to conclude that our Legislature intended to effect a change in the

definition of “existing small lots” when both the new and old statutes employ identical

language to define that phrase.

Developer asserts that the Legislature intended to allow municipalities to be the

entity charged with determining whether parcels that do not conform to the statutory

definition of “existing small lots” should be developed in their communities. As

admirable and advisable as this proposition is, we cannot see how subsection (C), as

currently worded, can be interpreted as allowing any parcels other than those that

qualify as existing small lots to be developed more permissively. Our conclusion here is

reinforced by our understanding that the Legislature could have chosen to omit or use a

phrase other than “existing small lots” in subsection (C), or could have specifically

excluded the phrase “in individual and separate and nonaffiliated ownership” from the

first sentence of § 4412(2). We may find it confusing as to why the Legislature would

not engage in such alternate draftsmanship, particularly in light of the outcry

surrounding the Richards I decision, but we find no confusion in the language chosen

by the Legislature.

Where statutory language that has been construed by the courts is then used

again by the Legislature, “the Legislature is presumed to have been familiar with their

construction, and to have adopted it as a part of the law, unless it expressly provided

for a different construction.” Russell v. Lund

, 114 Vt. 16, 22 (1944) (citing In re Estate of

Woolley

, 96 Vt. 60, 64 (1922); Brace v. Hulett

, 109 Vt. 360, 366 (1938)). See also14 Ratepayers Coalition of Rochester v. Rochester Elec. and Power Co.

, 153 Vt. 327, 330

(1989).

To qualify as an existing small lot, parcel 1 would have had to have been “in

individual and separate and nonaffiliated ownership from surrounding properties” at

the time it became nonconforming by operation of the 1981 zoning amendment, in

order to conform to 24 V.S.A. § 4412(2). Because parcel 1 does not meet the definition of

“existing small lot,” it cannot qualify for the small lot exception, even under the new

statute. Its failure to qualify ultimately brings about the same result as in the Richards I

case: parcels 1 and 2 are deemed to have merged by operation of § 4412(2) for purposes

of development.

Developer also urges this Court to focus on the new language and changes in

language to the provisions now found in § 4412(2)(B), including that the reference to

“merger” has been dropped from the language found in the former § 4406(1)(A). We do

not find these changes applicable here, because those provisions pertain to lots that

were held separately, were or became nonconforming as to the applicable minimum lot

size requirements, and then “subsequently c[ame] under common ownership

. . . .” 5

There is no suggestion in the record that parcel 1 or 2 were ever held independent of

each other since 1967, including when the lot size amendment went into effect in 1981,

when Developer purchased the properties jointly in a single deed 6 in 1996, and until

Developer conveyed the undersized parcel 1 to a third party.

Moreover, no suggestion has been made that Act 115 changed or nullified the

well

‐ established principle of zoning law that nonconformities are “allowed only

because the use preexists the applicable zoning requirement. A goal of zoning is to

phase out such uses.” Drumheller v. Shelburne Zoning Board of Adjustment, 155 Vt.

524, 529 (1990). The Act provided, in part, that all municipal zoning provisions contain

5 Language used in both § 4412(2)(B) and the former § 4406(1)(A).

6 There is no suggestion that lots merge by the mere fact that they are conveyed in a single deed.15 the language of 24 V.S.A. § 4412(2), which allows for the development of undersized

lots, provided that they were held “in individual and separate and nonaffiliated

ownership from surrounding properties” when they no longer satisfied the applicable

minimum lot size.

Parcel 1 did not qualify as an existing small lot when held by Developer; its

failure to qualify as an existing small lot under § 4412(2) results in its merger by

operation of law with parcel 2 for development purposes. The consequence of this

merger is that the separate development of parcel 2 is prohibited by § 10.1.3 of the

Zoning Regulations, which forbids more than one residential use per lot. Thus, we

must grant Neighbor summary judgment in the first appeal, as the applicable law does

not allow for the independent development of parcel 2, even when all facts are viewed

in a light most favorable to Developer.

III. Enforcement Action

Our analysis now moves on to the pending enforcement action in Docket No.

156

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‐ 05 Vtec. Neighbor filed his complaint on August 1, 2005, against Developer, the

Town and its Zoning Administrator seeking enforcement of a zoning violation and

requesting an injunction, compensatory and punitive damages, penalties, attorneys’

fees and an order regarding Developer’s alleged violation of the Regulations by

constructing a single

‐ family dwelling on parcel 2 without a zoning permit. Neighbor

filed his complaint because the Zoning Administrator refused to commence an

enforcement action against Developer, based on the Supreme Court’s previous

decisions in Richards I and Richards II in which the Court decided that Developer could

not construct a house on parcel 2 because parcel 1 and parcel 2 had merged by

operation of law under the former provisions of 24 V.S.A. § 4406(1).

On April 29, 2005, Neighbor wrote a letter to the Zoning Administrator

requesting that the Town commence an enforcement action against Developer. The

Zoning Administrator responded to Neighbor’s request on June 16, 2005, at which time16 he refused to commence an enforcement action because Developer was in the process of

obtaining zoning approval of the house—the subject of Docket No. 77

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‐ 05 Vtec.

Neighbor then appealed the Zoning Administrator’s determination that no enforcement

action was warranted on June 29, 2005, but received no response from the DRB within a

month. Neighbor then filed his complaint here on August 1, 2005, with the intention of

preserving his rights to argue that an enforcement action was warranted.

Defendants have moved to dismiss Neighbor’s complaint for failure to state a

claim upon which relief can be granted. See V.R.C.P. 12(b)(6). “When reviewing the

disposition of a Rule 12(b)(6) motion to dismiss, this Court assumes that all factual

allegations pleaded in the complaint are true. We accept as true all reasonable

inferences that may be derived from plaintiff ʹ s pleadings and assume that all

contravening assertions in defendant ʹ s pleadings are false.” Richards v. Town of

Norwich

, 169 Vt. 44, 48–49 (1999) (internal citations omitted).

Developer Nowicki requested in his dismissal motion that the Court award

reimbursement of his attorneys’ fees incurred while defending this enforcement action.

Vermont adheres to the American Rule with respect to the award of attorneys’ fees.

Robes v. Town of Hartford

, 161 Vt. 187, 198 (1993). “The American Rule ordinarily

prohibits an award of attorney’s fees absent a specific statutory provision or an

agreement of the parties.” Galkin v. Town of Chester

, 168 Vt. 82, 91 (1998). In this

instance, no such agreement exists. We are also not aware of any statutory provision

which would permit an award of attorney’s fees to a defendant in a zoning enforcement

action, absent a showing of bad faith. We are not aware of any factual foundation of

such bad faith on the part of Neighbor that might lead us to award Developer a

reimbursement of his attorneys’ fees. See Agency of Nat’l Res. v. Lyndonville Sav. Bank

& Trust Co.

, 174 Vt. 498, 501 (2002) (describing the exception to the American Rule for

bad faith conduct of litigants). Accordingly, we decline to award attorneys’ fees to

Developer.17 In light of our decision above that Developer is not entitled to an after

‐ the

‐ fact

permit for parcel 2, we are not inclined to dismiss Neighbor’s enforcement action.

Furthermore, we note that in light of Developer’s decision to build a single

‐ family

dwelling on parcel 2 during the pendency of the previous litigation, and in light of

Developer’s sale of parcel 1, issues remain in this enforcement action, including possible

liability, that are not solely dependent upon the outcome of the permit appeal just

decided in Docket No. 77

‐ 4

‐ 05 Vtec. We will therefore allow the enforcement action to

proceed to a hearing on the merits.

IV. Neighbor’s appeal of the Zoning Administrator’s decision not to issue a Notice

of Violation (Docket No. 220

‐ 10

‐ 05 Vtec)

Lastly, we turn our analysis to Neighbor’s appeal of the DRB’s decision to

uphold the Zoning Administrator’s determination that an enforcement action should

not be initiated. Our analysis here is made more straightforward by our determination

above that Neighbor’s enforcement action in the prior docket should not be dismissed.

We agree with the suggestion made in Neighbor’s memorandum in response to the

Town’s motion to dismiss that this appeal and the pending enforcement action “could

conceivably be consolidated.” However, in light of our determination that the

enforcement action should survive, we believe that the issues raised in this appeal are

subsumed into the enforcement action. Stated differently, we envision no rights,

liabilities or defenses in this appeal that cannot be maintained in the pending

enforcement action. In the interests of judicial economy and to limit overlapping

litigation, we shall dismiss Docket No. 220

‐ 10

‐ 05 Vtec.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Neighbor’s cross

‐ motion for summary judgment in Docket No. 77

‐ 4

‐ 05 Vtec is

GRANTED

, as Developer’s zoning permit application cannot be granted under any

factual scenario, in light of the determination that 24 V.S.A. § 4412(2) does not afford a18 small lot exemption to the nonconforming parcel 1, thereby effecting a merger of parcel

1 and 2 by operation of law. Developer’s cross

‐ motion for summary judgment in

Docket No. 77

‐ 4

‐ 05 Vtec is DENIED for the same reasons.

In Docket No. 156

‐ 8

‐ 05 Vtec, the motions to dismiss filed by Developer, the

Town, and Zoning Administrator Dechert are hereby DENIED

. Neighbor Richards is

entitled to maintain the pending enforcement action as to Developer’s past and present

violations of the Norwich Regulations, as modified by the past and present small lot

exemption statutes. Developer’s request for reimbursement of his attorneys’ fees in

Docket No. 156

‐ 8

‐ 05 Vtec is also DENIED because the American Rule does not provide

for reimbursement of attorneys’ fees, absent bad faith, statutory authority, or an

agreement of the parties regarding payment of attorneys’ fees.

Lastly, the appeal in Docket No. 220

‐ 10

‐ 05 Vtec is hereby DISMISSED for

reasons of judicial economy. Any rights, liabilities or defenses which could have been

asserted in that appeal may be asserted in the enforcement action that remains pending

in Docket No. 156

‐ 8

‐ 05 Vtec.

The parties are directed to prepare for a hearing on the merits in the pending

enforcement action. The Court recognizes that this action raises some unique issues,

not the least of which is the fact that the prosecuting entity is a private party and not the

municipality. Nonetheless, such private enforcement actions are permitted under 24

V.S.A. § 4470(b). The parties are directed to file any remaining pre

‐ trial motions,

including those relating to discovery, standard of review or burden of proof, on or

before Friday, July 7, 2006

. The Court will thereafter schedule this matter for a merits

hearing.

Done at Berlin, Vermont, this 8 th day of June, 2006.

Thomas S. Durkin, Environmental Judge