STATE OF VERMON T

ENVIRONMENTAL COURT

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Appeal of V.G. Gene ral Store, Inc

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‐ 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 To wn of Wai tsfield

Zoni ng Board of Ad justment (ZBA ) dated April 20, 2004, upholdi n g a notice of

violation is sued by the Town Zo ning Administrator on January 6, 2004. Appellant is

represented by Richard Johnst o n Ki ng, Esq.; the Town of Waitsfield (Town) is

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

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

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

in Appella nt’s Affida vit to pictu r es in the Court’s file showing th e site.

Factual Background

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

material facts in a light most f a vorable to the non

‐ moving pa rty. 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 f a vorable to Appellant, are as follows:

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

wholly owned by Da vid Frank. V.G. owns a parcel of land located at 4348 Main Stree t

(Vermont Route 100) in the Village Business District in Wa itsfield, Vermont (the

“Property”).

12. The Property consists of .46± acres of land imp r oved with g a solin e pumps

and a groce r y store and deli, colle ctively kno w n as “The Village Grocery.”

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

4. On August 11, 1993, the Town Planning Commissio n granted site pla n

approval to Appella nt’s predecessor

‐ in

‐ inte r e s t for proposed modifications to th e

Property with five conditions, tw o 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 Jun e 14, 1994.

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

Commissio n for approval, showing th e green area and

proposed signage.

5. The Planni ng Commission’s Au gust 11, 1993 decision was not a ppealed

by any inte rested person.

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

permit (#1794) to Ap pellant’s predecessor

‐ in

‐ interest, authorizing construction of the

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

plan approval, subje c t to the conditions of th at site pla n approval, including Conditio ns

2 and 3.

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

any interes t ed person.

8. Appellant’s predecessor

‐ in

‐ interest did not comply with Condition 2 of

the 1993 site plan appr oval and z o ning permit.

9. Appellant’s predecessor

‐ in

‐ interest did not comply wi t h Condition 3 of

the 1993 site plan app r o v al and zoning pe rmit until Jun e 7, 2000, when in connection

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

Quinn submitted a one

‐ page landscaping plan showing a propo s ed planter box/grass

2area 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 pl an approva l for Appli c ation #2410, and approving th e landscaping plan for

the propos ed planter box, with modifications to th e length of the planter box sides. The

decision required Appellant’s predecessor

‐ in

‐ interest 1 to remove the asphalt

underneath the proposed planter box, and complete all work on th e pla n ter box “by

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

11. The Planni ng Commission’s Jun e 14, 2000 decision was not appealed by

any interes t ed person.

12. Appellant’s predecessor

‐ in

‐ interest never complied with the 1993 zoning

permit and 2000 site pl a n approv al. He never removed the asphalt between the porch

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

13. Since acqui r ing the Property in 2001, Appellant has complied with neither

the 1993 z o ning per m it nor the 2000 site plan approval by remo vi n g th e asphalt

between the porch and Route 100 and replacing it with a planter bo x contai ni ng topso i l

and grass.

14. On January 6, 2004, the Zoni ng A d ministrator 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 Decisio n also notes, at ¶10, tha t “[ b] y acceptan ce of the condit ions of this decision wit h out a ppeal,

the Applic ant confirm s and agr ees tha t the condit ion s of this dec i sion shall run with the la nd and the la nd

uses herein p e rmi tted, and will be binding upon an d enforce a ble aga i nst the Permi ttee an d al l as sign s

and succe ssor s in int e re st .”

316. On April 20, 2004, the ZBA denied the a ppeal and upheld the notice of

violation. Appellant appealed the ZBA’s April 20, 2004 decision to this Co ur t on May

20, 2004.

Discussion

As a preli m inary matter, we note that the Planning Commission’s decision s of

1993 and 2000 and the Zoning Administrator’s 1993 grant of a zoning per m it were no t

appealed, and are therefore fin a l judgme nts which cannot be contested directly or

indirectly in this proceeding, pu rsuant to 24 V.S.A. § 4472(d). Appellant a ppealed the

January 6, 2004 notice of violation to the ZB A on January 26, 2004, twenty da ys 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 th e new stat ute. Both the forme r

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

decision of an adminis t rative officer must be filed within 15 days of that decis i on or act.

The Zoning Bylaw (Bylaw) in effect at the ti me 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. How e ver, as the ZBA accepted the appeal, 2 and given “the d e sirability

of resolving litigatio n on the me rits,” 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 ju dgm e nt.

Before we address the merits of the pending appeal, we note tha t Appellant’s

response to the Tow n ’s su mma ry judgme nt motion, supporting legal memoranda, and

2 We do not hold here that the acceptance of the ap p e al by the ZB A consti tuted a waiver of the 15

‐ day

limit

. We al s o recognize th a t Appella n t infers tha t it relied upon an extension of ti me re quested by it s

a ttorney and granted by the Zoning Administr a tor. Because we believe it ap p r op riat e to proceed to a

review of the substantive legal iss u es in thi s a ppea l

, we ma ke no det e rminat io n as to whether a zonin g

adm i n i st r a t o r has the aut h orit y to exten d the ti me with i n which an a ppeal mu s t be fi led

.

4statement of undisputed facts was in the form of a si ngle filing, entitled “Affidavit in

Oppositio n 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 ti me and cost constraints

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

the minimum req u irements of Rule 56, the party oppo sing the motion place s 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 photogra phs 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 issue d and on the record before the Town?” The “permits at

issue,” presumably th e Planning Commissio n ’s 1993 an d 2000 deci sions and the Zoning

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

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

permit and decisions may not be attacked at this late dat e

, even if they are alleg e d to be

void ab in t i o

. See In re Ashline

, 2003 VT 30, ¶ 10 (“We strictly e n force the exclusivity of

remedy provisions contained within § 4472

. . . . [W]e have consistently held th at § 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 mu st therefore be

dismissed.

Question 2: Authority to issue NOV.

Question 2 of Appell ant’s State m ent of Quest i on s asks: “Were the no tices of

violation properly authorized an d issued under the applicable laws and regulations

currently in effect and on th e re cord before the Town?” It appears that th ere is only one

5notice 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 aut h o r i z ed an d issued. In fact, it

is worth noting th at Appellant makes no argument whatsoever. As there is no

statement of the mat e rial 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 th e notice of v i olation might be im proper, and

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

Question 3: Enforceability against successor in intere st.

Question 3 of Appell ant’s State m ent of Quest i on s asks: “Were the permits, as

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

means the 1993 site pl an approva l

, the 1993 zoning per m it, and the 2000 appr oval of the

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

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

the finality rule of 24 V.S.A. § 4472(d). Ap pellant too k the property with notice of the

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

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

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

first condition attache d to the 2000 site plan approval req u i r ed that the “project shall be

completed, operated and maintained in accordance with the pla n s and infor m ation on

file with the Town,” inc l u d ing th e prior conditio ns from the original 1993 approval th at

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

Commissio n Decision expressly stated that the con d it ion s of approval “shall run with

the land.” See footnote 1, supra

.

In the abse nce of any argument as to why th e 1993 site plan approval, the 1993

zoning per m it, and the 2000 site plan approval should not be enforceable against

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

6Question 4: Town’s authority to act.

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

commissio n s, boards and officers exceed their legal au thority in th is 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, fo r a period of more tha n ten ye ars should

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

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

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

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

failure to com p ly with the 1993 conditio n, and until 2015 to bring an enforcement action

regarding Appellant’s failure to comply with the conditi o ns of the 2000 site plan

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

the notice of violation. As there is no fact ual representatio n tha t any official or board

exceeded their autho r ity, Question 4 of A ppellant’s Statement of Questions must be

dismissed.

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED

that th e Town’s Motion for Summary Judg m ent is GR ANTED as to all issues raised by

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

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

concludes the pending appeal.

Done at Berlin, Vermo n t, this 26 th day of May, 2006.

__________________________________________ Thomas S. Durkin, Environme n tal Judge

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