STATE OF VERMONT 

ENVIRONMENTAL COURT

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Huntington NOV Appeal } Docket No. 204-8-06 Vtec 

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Town of Bradford, } 

 Plaintiff, } 

 v. } Docket No. 209-9-06 Vtec 

George Huntington, } 

 Defendant. } 

 } 

Decision on the Merits

These consolidated cases address the legality of past and proposed uses of a small parcel 

of land at the intersection of Vermont Routes 25 and 25B in the Town of Bradford. A permit 

authorizing the sale of used autos on this property was issued in 2002, but such use became nonconforming when the Town of Bradford (Town) amended its zoning regulations in 2003. A 

dispute arose when the present owner of the property leased it in 2006 for commercial use, 

relying on the previously-approved permit. 

Docket No. 204-8-06 Vtec concerns Appellant George Huntington’s timely appeal from a 

decision by the Town of Bradford Zoning Board of Adjustment (ZBA) to uphold a notice of 

violation for operating a commercial enterprise without a permit. The second pending case, 

Docket No. 209-9-06 Vtec, concerns the Town’s efforts to enforce that same violation notice and 

obtain injunctive relief and monetary damages from Mr. Huntington. 

On April 25, 2007, this Court issued its Decision on the parties’ cross-motions for 

summary judgment. While the Court determined that neither party was entitled as a matter of 

law to pre-trial judgment, the Court did announce its determination of several legal issues that 

remain pertinent to the issues presented at trial, including the following: 

1. The 2002 zoning permit authorizing used auto sales that was issued to a prior 

owner and lessee of Appellant’s property (Town Exhibit A; hereinafter referred to 

as the “2002 Permit”) may be the basis for authorizing similar use of the property, 

under the doctrine of lawful, pre-existing, non-conforming uses, provided such 

use was neither abandoned nor expanded beyond that authorized by the prior 
2

permit. See Huntington NOV Appeal, Docket No. 204-8-06 Vtec, slip op. at Pp. 

3–5 (Vt. Envtl. Ct. April 25, 2007) (J. Durkin) (hereinafter referred to as the 

“2007 Decision”). 

2. The zoning amendments enacted by the Town in 2003 changed the applicable 

zoning district from the Neighborhood Commercial District to the Residential 

District. This zoning district change transformed the use authorized by the 2002 

Permit into a use that no longer conformed with the Town of Bradford Zoning 

Bylaws (“Bylaws”). Id. at 2. Those Bylaws, as amended in 2003, are the 

municipal zoning regulations that control these violation and enforcement actions. 

3. Any use conducted on Appellant’s property beyond that authorized by the 

2002 Permit would not be regarded as a lawful, pre-existing, non-conforming use. 

Id. at 4–5 and 8–9. 

4. Appellant assumes the burden of proving that the lawful, pre-existing, nonconforming use of his property has been uninterrupted for no more than two years, 

so as to avoid a claim of abandonment of the authority that the pre-existing nonconformity confers, as directed by Bylaws § 6-7(C). Id. at 7–8. 

The Court conducted a hearing on the merits of both proceedings on October 19, 2007. 

The parties requested the opportunity to file post-trial memoranda and replies thereto, the final 

filing of which was received by the Court on December 17, 2007. The Court thereafter began its 

research and deliberation on the merits. 

The Town continues to be represented in both proceedings by Paul Gillies, Esq.; Mr. 

Huntington continues to be represented by Marc Nemeth, Esq. 

Based upon the evidence admitted at trial, including that put into context by the site visit 

the Court conducted with the parties on the morning of the trial, we make the following factual 

findings: 

Factual Findings

1. George Huntington (“Appellant”) owns the 0.33± acre property at 1660 Waits River 

Road in the Town of Bradford, located at the junction of Vermont Routes 25 and 25B (the 

“Property”). Appellant purchased the Property in August, 2005. 

2. In 2006 and until sometime last year, Appellant leased the Property to First Trust 

Vermont Corporation (“First Trust Vt.”). The lessee intended to use the property for the storage, 

sale, and repair of used motor vehicles. 
3

3. Neither Appellant1 nor his lessee, First Trust Vt., received a municipal permit to change 

or expand the uses conducted on the Property. Their separate or joint representations were to 

rely upon the 2002 Permit as the authority for First Trust Vt.’s planned use of the Property. 

4. It was unclear from the evidence admitted at trial whether First Trust Vt. ever actually 

conducted commercial activities on the Property subsequent to its lease with Appellant. First 

Trust Vt. was unable to receive the required authorization from the Vermont Department of 

Motor Vehicles (“DMV”) to sell used autos—and obtain the requisite “dealer plates”—due to a 

variety of issues, including its inability to obtain verification from the Town of what zoning 

authority, if any, it had to operate a used auto sales facility on the Property. 

5. Appellant allowed or authorized the following commercial activities to occur on the 

Property: the display and sale of used motor vehicles; the storage or sale of large excavation 

equipment; the storage of trailers and other items; yard sales; and the repair of vehicles and 

motorcycles. These commercial activities frequently occurred within the highway rights-of-way 

and setbacks. 

6. Prior to Appellant’s purchase of the Property from Mr. Bill Lowery, the Property had 

been leased to Jim Moorcroft, d/b/a Pride Auto East. 

7. On August 27, 2002, the Town issued a zoning permit to Jim Moorcroft, d/b/a Pride Auto 

East, authorizing the operation of a used auto sales business. At the time this permit was issued, 

the Town of Bradford Zoning Regulations (Regulations) identified the property as being located 

in the Neighborhood Commercial District. Auto sales were then regarded as a permitted use for 

properties in this district. 

8. The evidence offered at trial was not clear on the activities of Mr. Moorcroft, lawful or 

otherwise, on the subject property. The credible evidence did not convince the Court that Mr. 

Moorcroft, during his tenure on the Property, engaged in the sale of large excavation equipment, 

motorcycles or other items such as those commonly sold in yard sales. 

9. To the extent that Mr. Moorcroft sold used autos within the highway right-of-way or 

setback from the highway right-of-way, such activities were deemed unlawful by the unappealed 

 

1

 Appellant actually applied for a new zoning permit on September 6, 2006, but by letter dated September 13, 2006, 

withdrew his application and noted that “[f]or the time being we will conduct business with the existing permit and 

do not intend to modify its use.” Town Exhibit S-1. We understand the “existing permit” to which Appellant 

referred to be the 2002 Permit, referenced above. 
4

zoning violation the Town issued to him and the then property owner, Mr. Lowery. See Town 

Exhibit E. 

10. Mr. Moorcroft terminated the sale of used autos on the Property on August 31, 2004, 

when the dealer license he received from the Vermont DMV expired and was not timely 

renewed. To lawfully sell used autos in Vermont, one must hold a valid dealer license issued by 

the DMV. 23 V.S.A. § 473(a). 

11. Although not specifically clear from the evidence Appellant offered, it appears Mr. 

Moorcroft may have stored used autos on the Property until late March, 2005. 

12. In 2003, the Town revised its Regulations, thereby changing the zoning district 

boundaries. The subject property was thereafter located in the Residential District, which did not 

allow commercial uses of property. 

13. On June 20, 2006, the Town of Bradford Zoning Administrator (“ZA”) issued a zoning 

violation notice2

 to Appellant. The 2006 notice alleged that Appellant was allowing “a 

commercial enterprise [to be operated on the Property] without benefit of permit, including, but 

not limited to, parking vehicles offered for sale within the Vermont highway right-of way [sic] of 

Route 25B.” We hereinafter refer to this violation notice as the “2006 NOV.” 

14. A Vermont highway right-of-way is generally assumed to be three rods3 wide. 19 V.S.A. 

§ 32; see also Town of South Hero v. Wood, 2006 VT 28, 179 Vt. 417 (2006). The credible 

evidence at trial supported an application of this assumed width of the specific right-of-way for 

Route 25B as it abuts the Property. Using this measurement, the neighbors who testified at trial 

estimated where the Route 25B highway right-of-way extended onto Appellant’s Property and 

convinced the Court that during the term of Appellant’s ownership, including after he received 

the 2006 NOV, yard sales were conducted and motorcycles, excavation equipment and other 

miscellaneous sale items were stored and displayed for sale on the Property and within the Route 

25B highway right-of-way. 

15. Mr. Huntington timely appealed the 2006 NOV to the Town of Bradford Development 

Review Board (“DRB”). The DRB upheld the 2006 NOV. Mr. Huntington thereafter appealed 

 

2

 As noted in our prior Decision, the ZA had issued several prior notices of violation concerning the Property to the 

prior owner. Such prior notices of violation are not material to these proceedings, other than for the legal precedent 

articulated in our prior Decision. See 2007 Decision at 5–6. 

3

 A “rod” was once a measurement commonly used when describing real estate or roads. A rod is defined as 

measuring 51⁄2 yards or 161⁄2 feet. Black’s Law Dictionary, Eighth Ed. (2005). 
5

to this Court, which appeal is the subject of Docket No. 204-8-06 Vtec. In Docket No. 209-9-06 

Vtec, the Town seeks enforcement, injunctive relief and the imposition of penalties as a 

consequence of the zoning violations Appellant has allowed to occur on the Property. 

16. The commercial activities referenced in ¶ 5, above, continued on the Property for several 

months after Appellant received the 2006 NOV. Specifically, the yard sales continued to occur 

on weekends for several months; trailers continued to be parked on the Property; and excavation 

and other pieces of motorized equipment continued to be parked and offered for sale on the 

property, including within the highway rights-of-way and setbacks during the summer and into 

the fall of 2006. 

Discussion

As we begin to announce our legal conclusions pertinent to the two pending cases, we do 

not believe it necessary to delve in great detail into the legal analysis contained in our 2007 

Decision that remains relevant to the merits of these cases. Rather, we refer the reader to that 

2007 Decision for an explanation of our legal conclusions as to (1) the limitations of nonconforming uses (Id. at 3–5); (2) whether the prior non-conformity has been abandoned pursuant 

to Bylaws § 6-7(C) (Id. at 7–8); and (3) whether the 2006 NOV-- while not a “model of clarity”-

- gave adequate notice that the commercial activities Appellant allowed to occur on the Property 

were prohibited by Bylaws § 3-8, not otherwise authorized and constituted one or more zoning 

violations (Id. at 8–9). 

The pending appeal hinges on what authority remains from the 2002 Permit for 

commercial use of the Property, since Appellant did not seek or obtain a new permit. Rather, he 

has consistently argued that the uses he has allowed on the Property are authorized by the 2002 

Permit. As a point of reference, we note that the amended Bylaws do not provide for 

commercial uses as either a permitted and conditional use in the Residential District. Bylaws 

§§ 3-8(C)–(D). 

I. Rights-of-Way and Setbacks:

Bylaws § 3-8(E) establishes “setbacks” for “Land, Area, and Structural Requirements” in 

the Residential District as being “30 feet from edge of [the public highway] right-of-way.” 
6

While contested,4 the credible evidence at trial established that the right-of-way for Vermont 

Route 25B measured about twenty-four and three quarters feet from the highway center line and 

that Appellant allowed yard sales to occur and equipment items to be stored and displayed for 

sale within this right-of-way and setbacks on his Property. Such use of his Property was not 

authorized by the 2002 Permit and was specifically deemed illegal by the 2004 NOV. While the 

Town does not seek relief against Appellant based upon the 2004 NOV (nor could it, since he 

did not then own the Property and did not receive notice), the 2004 NOV provides a conclusive 

reference as to what cannot now be claimed to be a lawful, pre-existing, non-conforming use. 

2007 Decision at 5–6. 

Some argument was made at trial that setback limits relate solely to buildings and not 

uses on land. The Bylaws are less than clear in this regard. See Bylaws § 3-8 (which establishes 

a thirty-foot setback “from edge of right-of-way” as the “Land, Area, and Structural 

Requirement” for the Residential Zoning District.5

) But the more appropriate legal analysis is 

what authority, if any, Appellant has for such setback use, not whether the Bylaws would allow 

for such use. 

II. Applicability of 2002 Permit and 2004 NOV:

Bylaws § 2-1 requires a party to apply for and receive a zoning permit for all “land 

development,” the definition for which includes “any change in use . . . or extension in use of 

land.” Id. The question of whether the commercial uses Appellant allowed to occur on his 

Property constituted a zoning violation, particularly the specific violation for which the Town 

gave notice, is simplified by the fact that Appellant chose not to obtain a zoning permit. The 

only authority Appellant asserts for the commercial use of his property is the use authorized by 

the 2002 Permit, later made non-conforming by the 2003 Bylaw amendments. But the 2002 

Permit nowhere specifically authorizes any commercial uses of the areas on Appellant’s 

Property located within the highway right-of-way or setback areas, and such uses of the right-ofway and setback areas were specifically determined to be unlawful, by virtue of the unappealed 

 

4

 Appellant primarily based his contest on the location of the right-of-way limits on the fact that he didn’t know 

where they were. He did not present evidence at trial that he put sufficient effort into learning where the right-ofway limits were located on his property. 

5

 The language of the title to Bylaws § 3-8(E) suggests that the setback and other listed “Requirements” relate to 

more than just structures. But we need not definitively resolve this legal issue, since Appellant cannot claim that he 

has a permit authorizing commercial uses inside the setback area. 
7

2004 NOV. Appellant is correct that the 2004 NOV cannot be the basis for determining what 

may now be permitted under the amended Bylaws; but the 2004 NOV does provide limits upon 

a continuation of the use authorized by the 2002 Permit, later made non-conforming by the 2003 

Bylaw amendment. 

To be regarded as the authority to continue using property in a way that no longer 

conforms with the current zoning bylaws, such prior use must have been lawful; that is, not in 

violation with the then-existing zoning bylaws. 24 V.S.A. § 4408(1); 2007 Decision at 5–6. 

The 2004 NOV specifically asserted, and ultimately formed the basis for the legal conclusion 

that commercial activity within the highway right-of-way and setback areas was not then lawful, 

thus evaporating whatever basis the 2002 Permit may contain for the then-lawful use of these 

areas on Appellant’s Property. Appellant is therefore barred in this proceeding from asserting 

that he, his business invitees or other possessors of his Property have authority to conduct 

commercial activity within these highway right-of-way and setback areas. 

III. 2006 NOV:

We therefore arrive at the legal conclusion that Appellant allowed unpermitted uses of 

his Property to occur after receiving the 2006 NOV. Specifically, we conclude that Appellant 

allowed commercial activities, including yard sales and the storing, offering for sale and 

repairing of motorcycles, trailers and large excavation equipment for a period from late spring 

through the fall of 2006. To determine the specific period of violation, we count from the 

expiration of the time the Town afforded in its 2006 NOV for Appellant to cure until the last day 

that such equipment occupied these areas on the Property (i.e., June 27, 2006 to December 1, 

2006). Thus, we calculate this period of violation to include a total of 156 days. We now must 

determine the appropriate response to these violations, given that each day that a violation 

occurred constitutes a separate offense. 24 V.S.A. § 4451(a). 

IV. Civil Fines and Other Relief:

This Court has “broad discretion” in determining what remedy should be afforded when a 

zoning violation, after due notice, persist. City of St. Albans v. Hayford, 2008 VT 36, ¶ 18. In 

making our determination here, we note several aggravating factors, including Appellant’s 

persistence in claiming he needed no further permit, in allowing the use of his property to extend 

beyond the uses that could legitimately be claimed as continuations of lawful, pre-existing, nonconforming uses, and in causing the Town to vigorously prosecute these violations. In 
8

determining this last aggravating factor, we do not intend to dampen the sincere exercise of the 

rights of property owners to defend against illegitimate claims of zoning infractions. However, 

we cannot ignore the expense to municipalities in fulfilling their police-power responsibilities of 

enforcing zoning regulations. When a municipality prevails in a contested zoning enforcement 

proceeding, a civil fine premised upon the costs a municipality incurs has been viewed as proper. 

Hinesburg v. Dunkling, 167 Vt. 514, 527–8 (1998) (“the use of the fine provision in § 4444(a)6

to reimburse towns for the cost of enforcement is contemplated by the statute and is rationally 

related to the damages suffered from landowner's violation of Town's bylaw.”) (citing United 

States v. Halper, 490 U.S. 435, 453 (1989). 

In the cases at bar, the Appellant has not contested the legitimacy of the Town’s assertion 

that it has incurred legal fees, service fees and court filing expenses in the amount of $6,904.42 

and that such fees are reasonable, given the extent of this contested litigation. We therefore 

conclude that this total is a legitimate basis for determining what an appropriate civil fine should 

be for each day that we have concluded a violation occurred. 

We also note that there are several mitigating factors in Appellant’s favor. Most 

important, we note that Appellant has caused the zoning violations on his property to cease, and 

did so prior to the site visit and court trial. While we regard these violations as serious, they are

by no means the most egregious violations this Court has been required to assess. In this regard, 

we note that we are authorized to impose a civil fine of “not more than $100.00 for each 

offense.” 24 V.S.A. § 4451(a). We interpret this authorization as suggesting that we reserve a 

fine of $100.00 per day for the most egregious of zoning infractions. Lastly, while we reject 

Appellant’s assertion that he should not be held responsible for the zoning transgressions of 

others visiting his property,7

 we note that the undisputed testimony, which we found credible, 

was that Appellant was unable to reap any financial remuneration from the tenants or occupants 

that committed these zoning offenses. We balance the conflicting evidence into a conclusion 

that while Appellant may have been directly responsible for some of the zoning infractions that 

occurred on his property that were noticed by the 2006 NOV, he clearly was not a direct 

 

6

 Section 4444(a) was where the zoning enforcement fine provisions were once codified. In the Permit Reform Act 

of 2004, the fine provisions were transferred to 24 V.S.A. § 4451(a), much in the exact same form. 

7

 See City of St. Albans v. Hayford, 2008 VT 36, ¶ 14, in which our Supreme Court noted that civil fines and 

injunctions are an appropriate response to zoning violations, even where it has not been determined that the property 

owner engaged in “conscious wrongdoing.” 
9

contributor to all of them. Thus, we conclude that $38.00 per day is an appropriate civil fine for 

the zoning violations that occurred on Appellant’s property that were sufficiently noticed in the 

2006 NOV and occurred for the 156 days after Appellant received that notice. Our conclusion 

here results in a civil fine being assessed against Appellant and in favor of the Town in the total 

sum of $5,928.00. 

We also conclude that Appellant’s assertion that he was the victim of unlawful selective 

prosecution is without merit. His evidence on this point failed to meet the burdens of proof 

articulated in In re: Appeal of Letourneau, 168 Vt. 539, 549 (1998), which, citing to Yick Wo v. 

Hopkins, 118 U.S. 356, 373–74 (1886), noted that a complaining landowner must “show more 

than that the municipality has failed to enforce the zoning ordinance in similar circumstances. . . . 

[T]he landowner must meet a two-part test: (1) the person, compared with others similarly 

situated, was selectively treated; and (2) such selective treatment was based on impermissible 

considerations such as race, religion, intent to inhibit or punish the exercise of constitutional 

rights, or malicious or bad faith intent to injure a person." Letourneau, 168 Vt. at 549 (citations 

omitted). 

At the time of the filing of its Complaint, the Town sought injunctive relief against 

Appellant and has not withdrawn that relief prayer, even though Appellant, his tenants or other 

occupiers apparently removed the offending items for the rights-of-way and setback areas on the 

Property well in advance of the site visit and trial. Nonetheless, we conclude that an injunction 

barring the specific use noticed as a zoning violation, both in 2004 and 2006, is appropriate here, 

so as to safeguard against a reoccurrence of the violations and tensions between the parties that 

have been the subject of this extended litigation. Thus, the Judgment Order that accompanies 

this Decision bars Appellant, his successors, assigns, invitees and other occupiers from 

conducting commercial activities within the highway rights-of-way and setback areas on the 

Property without first obtaining a zoning permit. 

V. Abandonment:

Lastly, we are aware that the parties briefed and have encouraged this Court to determine 

what now remains of the authority, if any, that originated when the 2002 Permit was issued to 

Appellant’s predecessor in title. We trust that we have already provided the parties with some 

guidance in our discussion here. However, we specifically refrain from addressing what use 

remains authorized on the Property, and whether such use was abandoned when the prior tenant 
10

lost his right to lawfully sell used autos on the Property on August 31, 2004, since these legal 

issues are beyond the scope of the 2006 NOV. To address these issues would require this Court 

to go beyond the scope of the specific case and controversy that has been presented to us in this 

NOV appeal and original enforcement action; we would be guilty of rendering an advisory 

opinion. In re Appeal of 232511 Investments, Ltd. d/b/a Stowe Highlands, 2006 VT 27, ¶ 19, 

179 Vt. 409, 417. To make such a ruling would require us to assume (or ignore) facts not in 

evidence and not yet specifically presented to the appropriate municipal panel; this is the 

practical foundation of the prohibition against advisory opinions. We do not intend to violate 

that prohibition in this proceeding. 

Conclusion

For all the reasons stated above, we hereby AFFIRM the June 20, 2006 notice of 

violation issued by the ZA and impose a civil fine of $38.00 per day, totaling $5,928.00, in 

favor of the Town and against Appellant for a total of 156 days after he received notice and an 

opportunity to cure the noticed zoning violations, specifically for allowing commercial activities 

to occur within the highway right-of-way areas of his Property and do hereby ENJOIN 

Appellant, his successors, assigns, business invitees and other occupants of his Property from 

allowing commercial activities to occur within such right-of-way and setback areas without first 

obtaining a zoning permit from the Town, authorizing such commercial use. 

A Judgment Order accompanies this Decision. This completes the proceedings before 

this Court in both of the above-referenced Dockets.

Done at Berlin, Vermont this 18th day March, 2008. 

 

 ____________________________________ 

 Thomas Durkin, Environmental Judge