### 1 STATE OF VERMONT ENVIRONMENTAL COURT
Town of Georgia, { Plaintiff { { v. { Docket No. 105-6-10 Vtec { Ronald King and Laurie King, { Defendants {

Decision and Order on Motion for Partial Summary Ju dgment The Town of Georgia (“Town”) has brought an enforce ment action against Ronald King and Laurie King (“Defendants”) for alle gedly violating the Town of Georgia Zoning Regulations (“Regulations”) by developing a second dwelling on their property without a zoning permit. The Town has moved for pa rtial summary judgment, asking
the Court to find that the terms of the violation d iscussed in the September 23, 2009 Notice of Violation (“NOV”) that the Town of Georgi a Zoning Administrator (“ZA”)
issued to Defendants are final and cannot be challe nged in this proceeding. Defendant Ronald King has submitted a memorandum in opposition to the Town’s motion, and the Town has replied, but Defendant Lau rie King has not filed a response. In this proceeding, the Town is represented by Aman da S. Lafferty, Esq. with John H. Klesch and David W. Rugh serving as co-coun sel. Defendant Ronald King is represented by Daniel P. O’Rourke, Esq., and Defend ant Laurie King is selfrepresented.
Factual Background For the sole purpose of putting the pending motion in context, we recite the following facts which we understand to be undispute d unless otherwise noted:
1. Defendants own a 10.03 acre lot located at 857 Sodo m Road in the Agricultural/Rural Residential Zoning District (or, AR-1 District) of the Town of Georgia, Vermont.
2. In August 2007, Defendants sought approval from the ZA to place a mobile trailer on their property. At that time, Defendant s’ property was already developed with one single-family dwelling.

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3. The ZA informed Defendants that, in order to add th e new dwelling to their property, they would need to obtain a subdivision p ermit from the Town to create a separate lot for their trailer.
4. At some point following this conversation, Defendan ts placed a mobile trailer on their property and Defendant Ronald King’s mother b egan living in it. 1 At that time, Defendants had not completed the process of receivi ng a zoning permit for the development.
5. On September 23, 2009, the ZA issued a Notice of Vi olation (“NOV”) to
Defendants based on the existence of the trailer on their property. Included in the NOV is a statement that Defendants violated the Reg ulations by commencing land development without a subdivision permit or a build ing permit. The NOV also
indicates that the “cure for this violation is to r emove the second residential dwelling unit,” and provides an explanation of Defendants’ a ppeal rights. (See Mot. for Partial Summ. J., Exhibit A, filed Mar. 25, 2011.)
6. The parties dispute when Defendant Ronald King beca me aware that a NOV had been issued to him. The Town alleges that it maile d the NOV to Defendants by both certified mail and first class mail, and that Defen dants received the certified mailing on October 9, 2009. 2 Defendant Ronald King claims to have had no notic e of the NOV until sometime in October, 2009. 3
7. Defendants did not appeal the issuance of the NOV.
8. On June 20, 2010, the Town instituted the present e nforcement action against Defendants based on the violation alleged in the NO V.
9. Subsequent to the Town’s issuance of the NOV, Defen dants applied for permission to use the mobile trailer now on their p roperty as an accessory dwelling.
Defendants thereafter received a certificate of occ upancy for the trailer.

Discussion Pending before the Court is a motion for partial s ummary judgment filed by the Town requesting that the Court determine that Defen dants cannot now challenge the

1 While Defendant Ronald King admits that his mother moved into the trailer after he received a state wastewater permit for a septic system for the trail er, he does not indicate the date of this event.

2 The Town has submitted a return receipt which incl udes Defendant Laurie King’s signature and a delive ry date of October 9, 2009.

3 While Defendant Ronald King makes this assertion i n his general narrative of the actions he has taken in regards to the development on his property, he does not incorporate this assertion into any of the arg uments he makes in opposition to the Town’s motion for par tial summary judgment.

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zoning violation discussed in the September 23, 200 9 NOV that the ZA issued to them. The asserted zoning violation consists of the devel opment by Defendants, without a zoning permit, of a second dwelling on their proper ty. The Town argues that Defendants did not appeal the NOV and that, therefore, it is final and binding. Defendant Laurie King does n ot oppose the Town’s motion. Defendant Ronald King does not refute that he faile d to appeal the NOV. However, he argues that he is not bound by it for three princip al reasons: 1) the Town’s NOV did not comply with the requirements for a notice of vi olation found in 24 V.S.A. § 4451(a); 2) it is a disputed fact whether he violated the Re gulations; and 3) the Town incorrectly advised him that he should seek a subdi vision permit and not an accessory dwelling permit and should be estopped from enforci ng its Regulations.

I. Summary judgment standard As we address the pending motion, we note that sum mary judgment is only appropriate where “the pleadings, depositions, answ ers to interrogatories, and admissions on file, together with the affidavits, i f any, . . . show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3); see V.R.E.C.P. 3. In our examination of the facts, we give the non-moving party (here, Defendants) the be nefit of all reasonable doubts and inferences, and accept as true all assertions made in opposition “so long as they are supported by affidavits or other evidentiary materi al.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citations omitted).

II. Statutory requirements for a notice of violation Section 4451(a) of Chapter 117 of the Vermont Statu tes Annotated requires that a municipality give an individual or entity that th e municipality believes is in violation of its zoning ordinance, a notice of the violation and time to “cure” it before the municipality institutes an enforcement action. 24 V.S.A. § 4451(a). The notice should be sent by certified mail and must indicate both th at there is a violation and that the “alleged offender” has the opportunity to cure the violation. Id. The Town has submitted a copy of its September 23, 2009 NOV with its motion for summary judgment and asserts that this NOV is s ufficient to trigger the finality provisions discussed in more detail below. The Tow n’s NOV includes a recitation of the sections of the Regulations that the Town alleg es Defendants violated, a description of Defendants’ actions that violated th ese Regulations, a statement that

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Defendants have time to cure the violation, a state ment that such a cure would be “to remove the second residential dwelling unit,” and a description of Defendants’ right to appeal in regard to the NOV. (See Mot. for Partial Summ. J., Exhibit A, filed Mar. 25, 2011.) Defendant Ronald King argues that the Town’s NOV is deficient because the
cure the Town describes is removal of the trailer. He asserts that the Town should
have indicated that he could also cure the violatio n by pursuing a subdivision or accessory dwelling permit, and that this deficiency raises a genuine issue of material fact that prevents summary judgment in the Town’s f avor. Mr. King is misinformed about what constitutes the “cure” of a violation. A party who submits a permit application for a develo pment that was originally completed without a permit, but for which a permit was required, does not retroactively “cure” the violation through that app lication. Even if the party were to eventually gain approval for the necessary zoning p ermit or permits, he or she would still have violated the applicable zoning ordinance from the time the non-permitted development began to the time he or she received th e necessary permits. Consequently, we cannot agree with Defendant Ronald King that he has raised a
triable issue of fact.

III. Finality of the NOV Individuals or entities who qualify as interested p ersons with regard to the decisions of municipal administrative officers, suc h as the recipients of a notice of violation, have a statutorily provided right to app eal that decision. See 24 V.S.A. § 4465(a). Such an appeal must be initiated by fil ing a notice of appeal with the appropriate municipal panel within 15 days of the d ecision to be appealed. Id. If persons with the right to appeal an officer’s decis ion fail to do so, they and all other “interested persons affected shall be bound by that decision.” Id. § 4472(d). In other words, an appeal of an officer’s decision to the ap propriate municipal panel within 15 days of that decision is the “exclusive statutory r emedy for persons aggrieved by local zoning decisions.” Town of Charlotte v. Richmond, 158 Vt. 354, 356 (1992); see 24 V.S.A. § 4472(a). Here, the Town argues that the terms of the NOV, in cluding the violation described therein, are binding on Defendants becaus e they did not appeal that
decision. Defendants do not contest the Town’s ass ertion that they failed to appeal

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the September 23, 2009 NOV the Town issued to them. Instead, Defendant Ronald King argues that there is a “genuine question” as t o whether he violated the Regulations which creates a disputed fact barring s ummary judgment on the question of whether the violation exists. (See Def. Ronald King’s Opp’n to Pl.’s Mot. for Partial Summ. J. 6, filed June 6, 2011.) We do not accept Mr. King’s interpretation of the a pplicable law. An argument going to whether there was a violation could have b een raised in an appeal of the NOV itself, but cannot now be raised in this enforcemen t action brought by the Town. Because Defendants did not appeal the Town’s Septem ber 23, 2009 NOV issued to them, under the provisions of § 4472, that decision is now final and cannot be contested. Thus, we do not have jurisdiction to co nsider the challenge Mr. King
raises. We conclude that Defendant Ronald King has failed t o raise a disputed material fact regarding the finality of the NOV, and its ter ms are binding on Defendants.

IV. Equitable estoppel Defendant Ronald King’s final argument is that part ial summary judgment for
the Town is not warranted because the doctrine of e quitable estoppel should bar the Town from pursuing this enforcement action against Defendants. Specifically, Mr. King argues that the Town incorrectly advised him t hat he should seek a subdivision permit rather than an accessory dwelling permit, an d that he relied on that advice to his financial determent during his pursuit of a sub division permit. We would normally begin our analysis of Mr. King’s equitable estoppel claim by reviewing the legal standard for that doctrine. Ho wever, we need not do so here because Mr. King’s argument does not, in fact, supp ort his legal challenge based upon equitable estoppel. The operative action here is n ot the advice the ZA gave to Mr. King, nor its decision to prosecute Defendants, but rather their decision to place a trailer on their property without first obtaining s ome sort of zoning approval. Even if
the Town’s advice to Defendants can be classified a s incomplete or misleading, it falls far short of the transgressions that would give ris e to an equitable estoppel claim. Mr. King does not allege that the ZA advised Defendants to place a trailer on their property without first obtaining some sort of zoning approva l; Mr. King chose to not follow through on what the ZA advised him to do. Rather, he chose to improve his property

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without any zoning approval. Thus, his argument do es not support the application of equitable estoppel to this enforcement action. We conclude that Defendant Ronald King’s argument c oncerning the application of equitable estoppel neither prevents us from granting partial summary judgment in favor of the Town here (on the question of whether the terms of the NOV are binding on Defendants) nor bars this enforcemen t action in its entirety.

Conclusion For the reasons detailed above, we GRANT the Town’s motion for partial summary judgment. That is, we find that the terms of the zoning violation presented in the September 23, 2009 NOV the ZA issued to Defe ndants are final and binding on
Defendants. The issues that remain in this action— the appropriate remedies and fines, if any—will be determined at the upcoming me rits hearing which is scheduled for August 30, 2011 at the Franklin County Courthou se in St. Albans, VT. Parties are directed to prepare for that hearing.

Done at Rutland, Vermont this 25th day of August, 2011.

Thomas S. Durkin Environmental Judge