VERMONT SUPERIOR COURT 

Environmental Division Docket No. 42-5-20 Vtec

32 Cherry St, 2nd Floor, Suite 303, 

Burlington, VT 05401

802-951-1740 

www.vermontjudiciary.org 

R.L. Vallee, Inc. v. Town of Colchester 

ENTRY REGARDING MOTION 

Count 1: Writ of Mandamus Petition 

Title: Motion to Dismiss Petition for Writ of Mandamus (Motion 4) 

Filer: Town of Colchester 

Attorney: Claudine C. Safar 

Filed Date: July 29, 2020 

Response in Opposition filed on 08/27/2020 by Attorney Alexander J. LaRosa for R.L. Vallee, Inc. 

Reply filed on 09/10/2020 by Attorney Claudine C. Safar for the Town of Colchester. 

The Motion is GRANTED 

By its Petition for a Writ of Mandamus that requests the Court direct the Town of Colchester 

(“Town”) to provide notice and institute a municipal enforcement action against the Costco Wholesale 

Corporation (“Costco”), R.L. Vallee, Inc. (“Vallee”) asserts that Costco has violated the terms of its 

final plat and site plan approval that authorized certain improvements to its pre-existing facility, and 

the Town of Colchester Zoning Regulations (“Regulations”), when Costco opened its new retail 

gasoline sales facility for limited, off-peak traffic hours, prior to the completion of certain traffic 

mitigation improvements on Town and state highways. 

In 2012, Vallee appealed to this Court the Town of Colchester Development Review Board 

(“DRB”) approval of Costco’s application to amend its pre-existing final plat and site plan permit. 

That permit amendment application had been filed in 2008. On August 27, 2015, this Court issued 

its merits decision concerning those appeals, together with several other permit appeals filed by Vallee 

and other entities. See In re Costco Final Plat and Site Plan Application Appeals, Nos. 104-8-12 Vtec, 

et. al. (Vt. Super Ct. Envtl. Div. Aug. 27, 2015) (Durkin, J.), aff’d 2016 VT 86. Those other appeals 

filed by Vallee also concerned an Act 250 permit amendment approval, a wetlands reclassification, a 

wetlands permit, and a state stormwater discharge permit. Id. This Court’s determinations were 

affirmed by the Vermont Supreme Court. Id. 

Vallee has also filed a post-judgment motion for a temporary restraining order and preliminary 

injunction in their 2012 appeal of the permit amendment applications. This Court denied Vallee’s 

TRO request and is in the process of scheduling a hearing on Vallee’s post-judgment preliminary 
Entry Regarding Motion Page 2 of 4 

R.L. Vallee, Inc. v Town of Colchester, No. 42-5-20 Vtec (EO on Town’s Motion to Dismiss) (09-18-2020) 

injunction request (the parties are to advise the Court by September 30, 2020 of their unavailable dates 

for trial in January and February, 2021. See In re Costco Final Plat and Site Plan Application Appeals, 

Nos. 104-8-12 Vtec, et. al. (Vt. Super Ct. Envtl. Div. May 27, 2020). 

Vallee has also appealed the District 5 Environmental Commission’s (“District Commission”) 

most recent approval of an Act 250 permit amendment that authorizes Costco’s limited, off-peak 

hours operation of its retail gasoline sales facility prior to the completion of the traffic mitigation 

measures. After Vallee had appealed that determination, this Court denied Vallee’s request for a stay 

of that approval and Costco’s off-peak limited hours operation. See Costco Act 250 Land Use Permit 

Amendment, No. 20-3-20 Vtec (Vt Super. Ct. Envtl. Div. May 27, 2020) (Durkin, J.) 

Most recently, Vallee appealed the DRB’s approval of Costco’s application for an amendment 

to its final plat and site plan approval that also authorized Costco to operate its retail gasoline sales 

facilities during off-peak hours, prior to the completion of the traffic mitigation measures. See In re 

Costco Wholesale Corp. Final Plat and SP Amendment, No. 48-6-20 Vtec (Vt. Super. Ct. Env. Div.). 

Vallee also appealed separate Act 250 and state stormwater permits issued to the Vermont 

Agency of Transportation, authorizing certain highway improvements to state highways at an I-89 

Interstate highway exit near the Costco facility that were proposed as the very traffic mitigation 

measures to address Vallee’s concerns about increased traffic caused by the Costco improvements, 

thereby delaying the completion of those traffic mitigation measures. This Court affirmed the Act 

250 and state stormwater permits that authorized those highway improvements. After Vallee appealed 

those determinations, the Vermont Supreme Court affirmed all but one ruling from this Court, 

concluding that the trial court must afford Vallee an opportunity to present evidence under Act 250 

Criterion 1 concerning the possible impacts caused by any increase in chloride and phosphorus 

discharges that may be caused by the proposed highway improvements. See In re Diverging Diamond 

Interchange Act 250 and SW Permit, Nos. 50-6-16 Vtec and 169-12-16 Vtec (Vt. Super. Ct. Envtl. 

Div. June 1, 2018) (Walsh, J.), aff’d in part and rev. and remanded in part 2019 VT 57. On remand, this 

Court took additional evidence during a three-day trial on the possible increases in chloride and 

phosphorus discharges. After trial, this Court issued its Amended Merits Decision After Remand, 

concluding that the proposed highway improvements conformed to Act 250 Criterion 1. See In re 

Diverging Diamond Interchange Act 250 and SW Permit, Nos. 50-6-16 Vtec and 169-12-16 Vtec (Vt. 

Super. Ct. Envtl. Div. Apr. 16, 2020) (Walsh, J.). Vallee’s appeal of that Decision is now pending 

before the Vermont Supreme Court. 

These appeals present a unique and possibly frustrating litigation history, since Costco has 

been frustrated in its efforts to complete the improvements to its pre-existing facility, principally by 

operating its recently constructed retail gasoline sales facility, that were first applied for in 2008 and 

ultimately approved by the Vermont Supreme Court in 2016, particularly because the traffic mitigation 

measures that Costco and the state proposed have also been delayed and frustrated by further 

litigation. 

Nonetheless, by its Petition for Writ of Mandamus, Vallee requests that this Court direct the 

Town to enforce its zoning regulations by instituting an enforcement action against Costco, asserting 

that its off-peak traffic hour operation of its retail gasoline sales facility is a violation of its municipal 

permit. Vallee Petition for Writ of Mandamus at 14–15, filed May 26, 2020.. In a later filing, Vallee 

asserts that the Town should be compelled “to initiate an enforcement action against Costco” for 

fines and penalties, due to its opening of its gasoline sales facility. Vallee Response in Opposition to 

Town’s Motion to Dismiss at 3–4, filed Aug. 27, 2020. 
Entry Regarding Motion Page 3 of 4 

R.L. Vallee, Inc. v Town of Colchester, No. 42-5-20 Vtec (EO on Town’s Motion to Dismiss) (09-18-2020) 

Both Costco and the Town initially asserted that the approvals issued by this Court in 2015 

and affirmed by the Supreme Court in 2016, did not need to be amended in light of Costco’s plan to 

operate the retail gasoline facility for limited, off-peak traffic hours. Nonetheless, Costco on March 

19, 2020, filed another application to amend its site plan approval, requesting specific authority for its 

limited hours gasoline sales operation. The DRB granted that permit amendment application on June 

22, 2020. As stated above, that municipal permit amendment approval was appealed by Vallee and is 

the subject of Docket No. 48-6-20 Vtec. 

By its motion to dismiss, the Town asserts that the DRB’s most recent permit amendment 

approval moots any possible zoning violations by Costco and requests that the Court now dismiss 

Vallee’s Petition. Vallee responds by asserting that since Costco opened its gasoline sales facility 

before the DRB issued its most recent approval, it was in violation of its permit and the underlying 

zoning regulations, and should therefore be the subject of a municipal enforcement action. Vallee’s 

legal arguments are premised upon a mistaken interpretation of the applicable statutes and case law 

precedent concerning zoning enforcement actions. For the reasons summarized below, we conclude 

that Vallee’s Petition is moot and must be dismissed. 

For the sake of our legal analysis here, let us assume that by opening its gasoline sales facility 

prior to the DRB approval, Costco was in violation of its prior municipal permit approvals.1 But once 

the DRB issued its latest approval, specifically authorizing the limited hours operation of the facility, 

any possible basis for an alleged violation no longer existed. Vallee’s Petition is now moot, because 

Costco has completed the actions that Vallee first asserted that the Town must compel Costco to 

complete. 

Any Vermont municipality intending to institute a zoning enforcement action against a 

property owner or occupant must first provide notice to that targeted entity, specifying the alleged 

zoning violations, and providing at least seven days for the target to cure the violations. 24 V.S.A. 

§ 4451(a). “No action may be brought . . . unless the alleged offender has had at least seven days’ 

warning notice by certified mail.” Id. This statutory language appears to be a most significant 

impediment to Vallee’s Writ of Mandamus request, since to grant Vallee’s request, the Town would 

need to unlawfully give notice to Costco of a zoning violation that no longer exists. 

Vallee cites to several decisions from this Court that conclude that a Town’s ongoing 

municipal enforcement action may continue, even if the defendant has cured all zoning violations. 

But those decisions were all referencing zoning enforcement actions that had already been noticed 

and instituted while the zoning violations remained outstanding. We have long concluded that when 

a target of a municipal zoning enforcement action voluntarily acts to cure the violation while the 

enforcement action is pending, they should be commended and thanked for their efforts. But their 

cure actions while the enforcement is pending does not cause the municipality’s action to become 

moot, because we must still adjudicate any request for fines and penalties that accrued for violations 

that remained after the seven day notice period. See, e.g., In re Cote NOV, Nos. 273-11-06 Vtec and 

165-8-07 Vtec (Vt. Envtl. Ct. Dec. 5, 2007) (Durkin, J.); Town of Newbury v. Celeste, No. 50-3-10 

1

 Our hypothetical here should not be interpreted as a conclusion that Costco’s actions constituted a violation 

of its prior permit. The Town makes a compelling argument, seemingly unchallenged by Vallee, that there can be no 

municipal permit violation because Costco had previously obtained an amendment to its Act 250 permit, and that the Act 

250 permit amendment specifically governed the terms of the Town’s Memorandum of Understanding with Costco as to 

the timing of its operations and traffic mitigation efforts. See Town of Colchester Reply in Support of Motion to Dismiss 

at 3–7, filed September 10, 2020. 
Entry Regarding Motion Page 4 of 4 

R.L. Vallee, Inc. v Town of Colchester, No. 42-5-20 Vtec (EO on Town’s Motion to Dismiss) (09-18-2020) 

Vtec (Vt. Envtl. Ct. July 28, 2010) (Wright, J.); City of Burlington v. Khamnei, No. 74-7-18 Vtec (Vt. 

Super. Ct, Envtl. Div. Oct. 30, 2018) (Walsh, J.). 

In short, were we to grant Vallee’s request for a Writ of Mandamus, this Court would be in 

the awkward, and unlawful, position of directing the Town to issue a notice of alleged zoning violation 

for a violation that no longer existed, and which did not survive beyond any seven day period in which 

Costco would have been authorized to cure. Given that no violation remains, the Town cannot now 

be directed to institute an enforcement action. 

Our Supreme Court has noted that “[a]lthough the formal writ of mandamus was abolished 

by V.R.C.P. 81(b), relief in the form of mandamus is available under V.R.C.P. 75.” Petition of 

Fairchild, 159 Vt. 125, 130 (1992) (citing Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 299–300 

(1984)). The Court continued by noting that: 

A court can issue a writ of mandamus, however, only under certain circumstances: (1) 

the petitioner must have a clear and certain right to the action sought by the request 

for a writ; (2) the writ must be for the enforcement of ministerial duties, but not for 

review of the performance of official acts that involve the exercise of the official's 

judgment or discretion; and (3) there must be no other adequate remedy at law. 

Id. (citing Bargman v. Brewer, 142 Vt. 367, 369–70 (1983)). 

Generally, it appears undisputed that Vallee (1) is within its rights to request that the Town 

pursue enforcement of an alleged zoning violation and (2) that the action requested is ministerial and 

not discretionary. See Fairchild, 159 Vt. at 130 (quoting what is now codified in 24 V.S.A. § 4448(a)) 

(concluding that a zoning administrator does not have discretion to allow “any land development 

which is not in conformance with [the zoning] bylaws”). 

However, when applying these standards to the undisputed facts now before us, we must 

conclude that the action requested by Vallee cannot be compelled by a writ, since the alleged zoning 

violation no longer exists. It is for all these reasons that we must DISMISS AS MOOT Vallee’s 

Petition for a Writ of Mandamus against the Town. 

This completes the current proceedings before this Court. A Judgment Order accompanies 

this Entry Order. 

So Ordered. 

September 18, 2020 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division