STATE OF VERMONT

ENVIRONMENTAL COURT

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Appeal of V.G. General Store, Inc.    }    Docket No. 84‐5‐04 Vtec

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Decision on Appellee’s Motion for Summary Judgment

V.G. General Store, Inc. appealed from a decision of the Town of Waitsfield

Zoning Board of Adjustment (ZBA) dated April 20, 2004, upholding a notice of

violation issued by the Town Zoning Administrator on January 6, 2004.  Appellant is

represented by Richard Johnston King, Esq.; the Town of Waitsfield (Town) is

represented by Amanda S. E. Lafferty, Esq.    The Town has moved for summary

judgment, seeking dismissal of the appeal.  Appellant opposed the Town’s motion by

way of an “Affidavit in Opposition.”  The Town has also moved to strike the reference

in Appellant’s Affidavit to pictures in the Court’s file showing the site.   

   

Factual Background

Whenever a court considers a motion for summary judgment, it must view all

material facts in a light most favorable to the non‐moving party.    Carr v. Peerless

Insurance Co., 168 Vt. 454, 476 (1998).  Most of the facts that are material to the pending

appeal are not in dispute.  The material facts, including those that we must view in a

light most favorable to Appellant, are as follows:

1. Appellant V.G. General Store, Inc. (“V.G.”) is a Vermont corporation,

wholly owned by David Frank.  V.G. owns a parcel of land located at 4348 Main Street

(Vermont Route 100) in the Village Business District in Waitsfield, Vermont (the

“Property”).   

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2. The Property consists of .46± acres of land improved with gasoline pumps

and a grocery store and deli, collectively known as “The Village Grocery.”

3. Appellant acquired the Property from Robert F. Quinn on July 11, 2001.

4. On August 11, 1993, the Town Planning Commission granted site plan

approval to Appellant’s predecessor‐in‐interest for proposed modifications to the

Property with five conditions, two of which (conditions 2 and 3) are relevant here:

2. The paved area in front of the porch nearest Route 100 will be

removed for the width of the porch and be restored as green

area by June 14, 1994.

3. A revised site plan will be submitted to the Planning

Commission for approval, showing the green area and

proposed signage.

5. The Planning Commission’s August 11, 1993 decision was not appealed

by any interested person.

6. On August 31, 1993, the Town Zoning Administrator issued a zoning

permit (#1794) to Appellant’s predecessor‐in‐interest, authorizing construction of the

proposed modifications that were the subject of the Planning Commission’s prior site

plan approval, subject to the conditions of that site plan approval, including Conditions

2 and 3.   

7. The Zoning Administrator’s grant of a zoning permit was not appealed by

any interested person.  

8. Appellant’s predecessor‐in‐interest did not comply with Condition 2 of

the 1993 site plan approval and zoning permit.

9.   Appellant’s predecessor‐in‐interest did not comply with Condition 3 of

the 1993 site plan approval and zoning permit until June 7, 2000, when in connection

with Application #2410 (relating to lighting and signage over the gasoline pumps), Mr.

Quinn submitted a one‐page landscaping plan showing a proposed planter box/grass

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area located between the porch and Route 100.   The proposed planter box was to be

filled with topsoil and planted with grass, closing the northerly curb cut on the site.   

10. On June 14, 2000, the Planning Commission issued its decision, granting

final site plan approval for Application #2410, and approving the landscaping plan for

the proposed planter box, with modifications to the length of the planter box sides.  The

decision required Appellant’s predecessor‐in‐interest1 to remove the asphalt

underneath the proposed planter box, and complete all work on the planter box “by

July 1, 2000 or directly following the [ZBA] approval.”  

11. The Planning Commission’s June 14, 2000 decision was not appealed by

any interested person.   

12. Appellant’s predecessor‐in‐interest never complied with the 1993 zoning

permit and 2000 site plan approval.  He never removed the asphalt between the porch

and Route 100, nor did he replace it with a planter box containing topsoil and grass.

13. Since acquiring the Property in 2001, Appellant has complied with neither

the 1993 zoning permit nor the 2000 site plan approval by removing the asphalt

between the porch and Route 100 and replacing it with a planter box containing topsoil

and grass.

14. On January 6, 2004, the Zoning Administrator issued to Appellant a notice

of violation for the “long‐standing violation regarding grassing over the area in front of

the porch.”   

15. On January 26, 2004, twenty days after its issuance, Appellant appealed

the notice of violation to the ZBA.

                                                

1  The Decision also notes, at ¶10, that “[b]y acceptance of the conditions of this decision without appeal,

the Applicant confirms and agrees that the conditions of this decision shall run with the land and the land

uses herein permitted, and will be binding upon and enforceable against the Permittee and all assigns

and successors in interest.”

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16.   On April 20, 2004, the ZBA denied the appeal and upheld the notice of

violation.  Appellant appealed the ZBA’s April 20, 2004 decision to this Court on May

20, 2004.

Discussion

As a preliminary matter, we note that the Planning Commission’s decisions of

1993 and 2000 and the Zoning Administrator’s 1993 grant of a zoning permit were not

appealed, and are therefore final judgments which cannot be contested directly or

indirectly in this proceeding, pursuant to 24 V.S.A. § 4472(d).  Appellant appealed the

January 6, 2004 notice of violation to the ZBA on January 26, 2004, twenty days after the

notice was issued by the Zoning Administrator.   Appellant’s appeal is subject to the

time limits imposed by the former 24 V.S.A. § 4464(a), as the appeal to the ZBA was

filed prior to the June 30, 2004, effective date of the new statute.    Both the former

§ 4664(a) and the current § 4465(a) provide that the notice of appeal from an act or

decision of an administrative officer must be filed within 15 days of that decision or act.  

The Zoning Bylaw (Bylaw) in effect at the time of the appeal to the ZBA also provides a

15‐day time limit for the filing of such appeals, Bylaw § 6.4.   

Appellant’s appeal would therefore ordinarily be time‐barred by both statute

and the Bylaw.  However, as the ZBA accepted the appeal,2 and given “the desirability

of resolving litigation on the merits,” Desjarlais v. Gilman, 143 Vt. 154, 159 (1983), we

proceed to address the merits of this appeal in the context in the Town’s motion for

summary judgment.  

Before we address the merits of the pending appeal, we note that Appellant’s

response to the Town’s summary judgment motion, supporting legal memoranda, and

                                                

2  We do not hold here that the acceptance of the appeal by the ZBA constituted a waiver of the 15‐day

limit.  We also recognize that Appellant infers that it relied upon an extension of time requested by its

attorney and granted by the Zoning Administrator.  Because we believe it appropriate to proceed to a

review of the substantive legal issues in this appeal, we make no determination as to whether a zoning

administrator has the authority to extend the time within which an appeal must be filed.

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statement of undisputed facts was in the form of a single filing, entitled “Affidavit in

Opposition to Motion for Summary Judgment.”  This single filing does not satisfy the

minimum requirements for a party who wishes to oppose a motion for summary

judgment.  See V.R.C.P. 56(c)(1) and (2).  We recognize that time and cost constraints

often limit the filings that a party makes.  However, when the filings made do not meet

the minimum requirements of Rule 56, the party opposing the motion places the court

in the awkward position of having to decipher whether a material dispute as to the facts

or the law truly exists.  Because we intend to consider the substance of the issues in this

appeal, we choose not to strike Appellant’s Affidavit or photographs referenced therein.

Question 1:  Challenge to 1993 & 2000 Decisions and Permit.

Question 1 of Appellant’s Statement of Questions asks: “Were the permits at

issue properly authorized and issued under the applicable laws and regulations in

effect at the time they were issued and on the record before the Town?”  The “permits at

issue,” presumably the Planning Commission’s 1993 and 2000 decisions and the Zoning

Administrator’s 1993 grant of a zoning permit, are unappealed final judgments not

subject to reconsideration here, 24 V.S.A. § 4472(d).    The validity of the unappealed

permit and decisions may not be attacked at this late date, even if they are alleged to be

void ab intio.  See In re Ashline, 2003 VT 30, ¶ 10 (“We strictly enforce the exclusivity of

remedy provisions contained within § 4472  . . . . [W]e have consistently held that § 4472

bars attack on a zoning decision even when the decision is alleged to have been void ab

initio.”) (internal quotation and citations omitted).    Question 1 must therefore be

dismissed.

Question 2:  Authority to issue NOV.

Question 2 of Appellant’s Statement of Questions asks: “Were the notices of

violation properly authorized and issued under the applicable laws and regulations

currently in effect and on the record before the Town?”  It appears that there is only one

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notice of violation at issue in this case, issued on January 6, 2004.  Appellant makes no

argument as to why that notice might not be properly authorized and issued.  In fact, it

is worth noting that Appellant makes no argument whatsoever.    As there is no

statement of the material facts as to which it is contended that there exists a genuine

issue to be tried, the material facts in the Town’s statement are deemed admitted.  In the

absence of any argument as to why the notice of violation might be improper, and

because we can discern no such impropriety ourselves, Question 2 must be dismissed.

Question 3:  Enforceability against successor in interest.

Question 3 of Appellant’s Statement of Questions asks: “Were the permits, as

issued, enforceable against the Owner?”    By “the permits,” Appellant presumably

means the 1993 site plan approval, the 1993 zoning permit, and the 2000 approval of the

landscaping plan for the proposed planter box.    As mentioned above, these final,

unappealed decisions are not subject to attack here, either directly or indirectly, due to

the finality rule of 24 V.S.A. § 4472(d).  Appellant took the property with notice of the

site plan approved by the Planning Commission in 2000, because that site plan was

recorded in the Town Land Records, as shown in Town’s Exhibit J.  Those recordings

provide clear notice that there were conditions attached to the site plan approval.  The

first condition attached to the 2000 site plan approval required that the “project shall be

completed, operated and maintained in accordance with the plans and information on

file with the Town,” including the prior conditions from the original 1993 approval that

the asphalt under the proposed planter box be removed.    Further, the Planning

Commission Decision expressly stated that the conditions of approval “shall run with

the land.”  See footnote 1, supra.   

In the absence of any argument as to why the 1993 site plan approval, the 1993

zoning permit, and the 2000 site plan approval should not be enforceable against

Appellant, Question 3 of Appellant’s Statement of Questions must be dismissed.

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Question 4:  Town’s authority to act.

Question 4 of Appellant’s Statement of Questions asks: “Did the Town

commissions, boards and officers exceed their legal authority in this matter?”  There is

no factual representation offered here to indicate that any official or board exceeded

their authority here.  Appellant states in its affidavit that “the Town’s actions, and more

particularly the Town’s failure to act, for a period of more than ten years should

constitute conduct which bars the Town from enforcing a 1993 condition.”   

Under both the former 24 V.S.A. § 4496(a) and the current 24 V.S.A. § 4454(a), the

statutory limitation period for bringing an enforcement action is fifteen years.    The

Town therefore had until 2008 to initiate an enforcement action regarding Appellant’s

failure to comply with the 1993 condition, and until 2015 to bring an enforcement action

regarding Appellant’s failure to comply with the conditions of the 2000 site plan

approval.   Therefore, the Zoning Administrator acted within her authority in issuing

the notice of violation.  As there is no factual representation that any official or board

exceeded their authority, Question 4 of Appellant’s Statement of Questions must be

dismissed.

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

that the Town’s Motion for Summary Judgment is GRANTED as to all issues raised by

Appellant’s Statement of Questions, thereby warranting dismissal of this appeal.  The

Zoning Administrator’s January 6, 2004 Notice of Violation is upheld.    This decision

concludes the pending appeal.

Done at Berlin, Vermont, this 26th day of May, 2006.  

__________________________________________

     Thomas S. Durkin, Environmental Judge

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