Langlois/Novicki Appeals and Enforcement 

ENTRY REGARDING MOTION

Count 1, Municipal DRB Multiple Types (48-5-15 Vtec) 

Title: Motion for Summary Judgment (Motion 2) 

Filer: Town of Swanton 

Attorney: Edward G. Adrian 

Filed Date: March 16, 2016 

Response in Opposition filed on 04/14/2016 by Attorney Katelyn E. Ellermann for Appellant 

Edward Novicki. 

Reply filed on 04/22/2016 by Attorney Edward G. Adrian for the Town of Swanton. 

The motion is DENIED. 

In its pending motion, the Town of Swanton (“Town”) asserts that all facts material to 

Appellants’ application for a variance (Docket No. 48-5-15 Vtec), their appeal of the notice of 

alleged zoning violation served upon them by the Town (Docket No. 142-12-15 Vtec), and the 

Town’s zoning enforcement action (Docket No. 8-1-16 Vtec), are undisputed and that the 

applicable law requires that the Court enter summary judgment in each docket in the Town’s 

favor and remove the opportunity for all parties to present evidence at a coordinated trial, 

currently scheduled to begin on Monday, July 11, 2016. 

The three pending coordinated actions present somewhat novel legal issues concerning: 

(1) whether the applicable zoning regulations require a permit be received for the already built 

pergola; (2) whether the pre-existing cement seawall patio has legal relevance to the pergola 

permit question; (3) whether Appellants provided sufficient detail for their pergola plans to the 

Town of Swanton Zoning Administrator (“ZA”), not for a permit application, but rather for a 

determination of whether a permit was needed; (4) whether such a determination needs to be 

noticed and in writing to be relied upon; (5) whether Appellants may reasonable rely upon a 

verbal determination; and (6) how familiar Mr. Langlois was with the applicable zoning 

regulations and whether his knowledge has a legal impact upon Appellants’ equitable estoppel 

claim against the Town. 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Unit Docket No. 48-5-15 Vtec

142-12-15 Vtec, and 8-1-16 Vtec
In re: Langlois/Novicki Appeals and Enforcement, Nos. 48-5-15 Vtec, 142-12-15 Vtec, and 8-1-16 Vtec 

(Entry Order on sj motion)(06-10-2016) Page 2 of 2. 

It appears to the Court that many of the facts material to these legal questions are 

disputed. We therefore decline to grant the pending motion and direct that the parties prepare 

for trial. 

As the parties prepare for trial, the Court offers the following questions and comments. 

First, the Court is familiar with the unenviable challenges that zoning administrators must 

address as property owners seek advice on what they may do on their property. Thankfully, 

our laws do not hold administrators to a perfection standard; we recognize that sometimes 

administrators make mistakes when called upon for regulatory interpretations. The disputed 

facts here may help render a legal determination on whether the ZA correctly interpreted the 

applicable regulations and, if not, whether Applicants’ reliance upon that interpretation may be 

upheld. We will look to the applicable legal standards in determining what facts are relevant to 

these determinations. Compare In re Burns Two-Unit Residential Building, 2016 VT 63, ¶¶ 13–

14 (only zoning administrator determinations that are properly noticed enjoy the benefit of 

finality of 24 V.S.A. § 4472(a)) with Town of Bennington v. Hanson-Walbridge Funeral Home, 

Inc., 139 Vt. 288, 292–93 (1981)(suggesting that an administrator’s determination that no 

permit is required for a specified project is a binding determination).

Further, we question the relevancy of the ZA’s acquaintance with Mr. Langlois and its 

bearing upon the legal issues at hand. If the trial evidence reveals that a permit is required 

under the applicable regulatory provisions for the now-constructed pergola, then it appears 

that the only legal issue remaining in the variance and NOV appeals is whether Applicants are 

legally entitled to rely upon what would have then been determined to be an incorrect 

determination. Facts that will govern that second legal issue are also disputed. 

Lastly, we note that the legal standards for applying equitable estoppel are heightened 

when it is a governmental entity that is sought to be estopped. See, Lakeside Equip. Corp. v. 

Town of Chester, 2004 VT 84, ¶ 8, 177 Vt. 619. We look forward to all parties’ presentations of 

evidence relevant to the application of equitable estoppel against the Town. 

So ordered. 

Electronically signed on June 10, 2016 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Judge 

Environmental Division 

Notifications: 

Katelyn E. Ellermann (ERN 6654), Attorney for Appellants Gary Langlois & Edward Novicki 

Edward G. Adrian (ERN 4428), Attorney for the Town of Swanton 

Interested Person Michael Heller 

Interested Person Shawn Robtoy 

dchamber