STATE OF VERMONT

ENVIRONMENTAL COURT

Town of Elmore, Plaintiff,

v

Harland and Lynette Manning, 

Defendants.

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Docket No. 100-5-00 Vtec

Decision and Order

The Town of Elmore brought this zoning enforcement action against Harland and Lynette 

Manning, seeking to have them remove a mobile home placed on their property, and seeking a 

fine of $100 per day for each day of violation. By letter accompanying the returns of service on 

July 13, 2000, the Town= s attorney informed the Court that Defendants had applied for and 

would receive a permit for the structure, and that A the only outstanding matter would be the 

question of whether or not and to what extent the Court would assess a fine and costs.@

The Town of Elmore is represented by Richard L. Brock, Esq; Defendants are represented by 

Paul S. Gillies, Esq. An evidentiary hearing was held in this matter before Merideth Wright, 

Environmental Judge, at the close of which the parties made oral arguments on the record. Upon 

consideration of the evidence and the oral arguments on the record, the Court finds and 

concludes as follows.

Defendants= daughter had purchased an 8' x 42' mobile home (also referred to as a > trailer= ) 

and had it delivered to Defendants= property on Route 12 near the south end of Lake Elmore in 

the fall of 1999. She intended to install it on land in Wolcott. The mobile home was parked close 

to the road. When the zoning administrator inquired, Defendants informed him that the mobile 

home belonged to their daughter and that it would be there only a few weeks while they were 

fixing it up.

However, Defendants= daughter= s plans fell through and the mobile home remained in that 

location on Defendants= property until the spring of 2000. Defendants agreed with their daughter 

to take ownership of the mobile home and intended to use it for hay storage when it could be 

moved to the back of their property once the ground had firmed up after mud season. The mobile 

home was never connected to any utilities nor was it used as a residence. While it was in the 

location close to the road, it was used only intermittently for temporary storage of pickup loads of 

hay, until the hay could be dragged down to the barn. While the mobile home was in the location 

close to the road, it had curtains or shutters across the lower portions of the windows, so that an 

observer from the outside could only see the upper part of the interior space and could not see 

whether the interior furnishings had been stripped or whether it was in use for any purpose. 

In the spring of 2000, Defendants= grieved the reappraisal of their property which had taken into 

account the mobile home, stating that the mobile home was overvalued, and that they intended to 

gut the mobile home, move it to the rear of the property, and use it for hay storage. It was in fact 

moved to the rear of Defendants= property in early June of 2000 and used for hay storage.

On March 14, 2000, the Zoning Administrator issued a Notice of Violation, stating as the violation 

A the placement of a mobile home without obtaining a zoning permit.@ The Notice of Violation 

directed them either to move the mobile home to an A allowable lot and obtain a zoning permit,@

or to remove the mobile home and A associated land development@ and return the property to 
its A pre-development condition.@ The Notice of Violation gave Defendants seven days to 

correct the violation, or be subject to injunctive relief and fines of up to $501per day. They did not 

appeal the Notice of Violation, and it became final.

Since Defendants did not appeal the Notice of Violation to the ZBA or to this Court, they cannot 

now contest whether the placement of the mobile home on their property without a zoning permit 

was in fact a violation. 24 V.S.A. ' 4472(d). In re Appeal of Newton Enterprises, 167 Vt. 459 

(1998); Town of Charlotte v. Richmond, 158 Vt. 354 (1992); Town of Sandgate v. Colehamer, 156 

Vt. 77 (1990).

However, because the Court will consider the circumstances of the violation in determining an 

appropriate remedy in this matter, we will go on to examine whether the placement of the mobile 

home on the property without a permit was a violation, and whether its use for hay storage 

required a permit.

The mobile home is a A structure@ under the Zoning Regulations (' II(30)) and may also fall 

within the definition of A building.@ (' II(4)). Even under the Agriculture Department= s 

regulations for structures used for agricultural uses, ' 4.07(b), a town= s setback regulations must 

be complied with. Therefore, regardless of the use of the mobile home for hay storage, the 

placement of the mobile home may have been in violation for its location within the front setback, 

from the fall of 1999 to the date when it was moved, even if its location was not within the road 

right-of-way2. However, the Notice of Violation did not allege a violation of Defendants=

placement of the mobile home within the front setback. Rather, the Notice of Violation alleged as 

the violation the placement of the mobile home on their property without a zoning permit, and 

required it to be moved to an A allowed lot@ with a zoning permit.

Within a few days of the issuance of the Notice of Violation, Defendants stated their intent to use 

it for agricultural storage use and to place it to the rear of their own lot as soon as it could be 

moved. Under the particular language of the 1988 Zoning Regulations (in effect at the time of 

these events), an agricultural use does not even require a zoning permit. (' IV(A)(1)). The Zoning 

Regulations= definition of A agriculture,@ ' II(2), is broader than that in the state regulations, and 

covers Defendants= hobby farming or keeping horses for their household, regardless of the 

number of horses. Therefore, the placement of the mobile home on Defendants= lot for the 

purpose of hay storage did not require a zoning permit at the time of its placement. Defendants 

acquired a vested right to the application of those regulations from the time the mobile home was 

placed on their property and used for hay storage. Accordingly, by moving it to the rear of their 

property and using it for hay storage, Defendants had complied with the Notice of Violation. That 

is, they placed it on an approved lot, for which no zoning permit was required (although they also 

did apply for a permit for its new location as of June 13, 2000, and did receive that permit on or 

about July 10, 2000).

Because the mobile home was used for the agricultural use of hay storage at least from seven 

days after the Notice of Violation, because the Notice of Violation did not allege the location of the 

mobile home in the front setback as a violation, and because it was moved to an allowed location 

as soon as the ground conditions would allow it to be moved, no penalty is warranted under 24 

V.S.A. ' 4444. Based on the foregoing, it is hereby ORDERED and ADJUDGED that Defendants 

shall pay a penalty of zero dollars per day for the violation as stated in the Notice of Violation 

which Defendants failed to appeal.

Dated at Barre, Vermont, this 16th day of July, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1. 

 Although the complaint requests fines of $100 per day, this language in the Notice of 

Violation would limit the fines to $50 per day.

2.

 No party established the width of the road right-of-way; the mobile home was located 33 feet 

from the centerline of the road.