### STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 117

- 8

- 13 Vtec

City of Burlington, Plaintiff

v.
Timothy A. Muir, Frances D. Muir, Defendants 

### DECISION ON THE MERITS

This matter relates to the City of Burlington’s Aug ust 23, 2013 Enforcement Complaint and request for Injunctive Relief (Compla int), alleging that Timothy A. Muir and Frances D. Muir (Defendants) have multiple zoni ng violations on their properties at
52 North Cove Road and 68 North Cove Road in the Ci ty of Burlington, Vermont (the City). The City notified Defendants of the alleged violations in an August 24, 2012
Notice of Violation related to 52 North Cove Road a nd a September 14, 2012 Notice of Violation related to 68 North Cove Road. The Compl aint alleges that Defendants have neither remedied any of the multiple violations not iced by the City nor appealed the
Notices of Violation. On November 22, 2013, after Defendants failed to t imely answer the Complaint, this Court granted the City’s Motion for Default Ju dgment and sent notice to all parties for a December 23, 2013 hearing to determine the ap propriate remedies and penalties for the violations (remedies hearing). Due to incl ement weather on December 23, the Court held a telephonic status conference, in which Defendants participated, and rescheduled the remedies hearing for January 10, 20 14. On January 6, 2014, Defendants filed a motion seeking to respond to the Complaint and during the January 10 hearing, Defendants further argued for setting aside the def ault judgment. The Court gave the City time to respond to Defendants’ motion to respo nd to the complaint and advised2

the parties that the remedies determination would b e set for a hearing following the decision on the motion. On May 1, 2014, we denied Defendants’ motion to set aside the default judgment and shortly thereafter rescheduled the remedies hearing for May 30,
2014. Defendant Timothy A. Muir appeared late at the May 30 remedies hearing. Shortly after his arrival, Mr. Muir requested a con tinuance to allow Defendants time to retain an attorney. On the record of the May 30 he aring, this Court advised Defendants that if they wished to be represented in this matte r, they were to retain counsel and advise counsel to file an appearance with this Cour t by June 13, 2014 as well as to participate in a June 16, 2014 status conference to discuss rescheduling the remedies hearing. Defendants did not retain counsel and rep resented themselves at the June 16,
2014 status conference. On July 1, 2014, the Court set the remedies hearin g for August 29, 2014. On July 7, 2014, Defendants filed a Motion for Continuance. In a July 23, 2014 Entry Order we denied Defendants’ motion to continue the August 29 hearing. A remedies hearing was held on August 29, 2014 at the Costello Courthouse to determine the appropriate remedies and penalties fo r the violations. Kimberlee J. Sturtevant, Attorney for Plaintiff City of Burlingt on, and Defendant Frances D. Muir appeared at the remedies hearing. Defendant Timoth y A. Muir did not attend the remedies hearing. Findings of Fact
1. Defendants own 52 North Cove Road and 68 North Cove Road in Burlington,
Vermont.
2. The City has enacted zoning regulations set forth i n the City of Burlington, Vermont Comprehensive Development Ordinance (CDO).
3. On August 24, 2012, the City served Defendants with a written Notice of
Violation for 52 North Cove Road for the failure to obtain requisite City approval for: 1) a change in use from a vacant parcel to a c ontractor’s yard, 2) storing construction material on the property, 3) construct ing a barrier/retaining wall3

along the northern boundary of the property, 4) gra ding the land, 5) adding fill to wetlands, 6) encroaching into setback areas and increasing lot coverage, 7), storing vehicles and materials on private parking l ot, and 8) being noncompliant with the City’s Special Flood Hazard Area Regulatio ns.
4. On September 14, 2012, the City served Defendants w ith a written Notice of
Violation for 68 North Cove Road for:

a. Failing to comply with conditions of Zoning Permit 08-246CA, including the failure to construct/implement all planters as approved by the site plan, the failure to plant approved landscaping, co nstructing a driveway exceeding approved dimensions, the failure to remov e a shed roof, parking vehicles in an manner that is inconsistent with the permit, and undertaking unapproved exterior storage of material s; b. Failing to obtain a certificate of occupancy for Zo ning Permit 08-246CA;

c. Failing to comply with conditions of approval 1-4 i n Zoning Permit 08- 246CA;
d. Changing the use of the property from residential t o residential with a contractor’s yard without the necessary zoning appr ovals;

e. Exceeding CDO coverage limitations due to exterior storage and unpermitted parking;
f. Violating setback requirements by constructing a ro oftop within the setback, storing materials, and parking vehicles wi thin the setbacks; and

g. Violating the conditions of agreement established b etween the City and Defendants on July 20, 2007.
5. Neither of the Notices of Violation were appealed o r otherwise challenged.
6. On August 23, 2013, the City filed a Complaint and Motion for Injunctive Relief with this Court alleging that Defendants have neith er remedied any of the multiple violations noticed by the City nor appeale d the Notices of Violation.
7. On August 29, 2013, the City served the Complaint a nd Motion for Preliminary and Permanent Injunctive Relief upon Defendants.4

8. On November 22, 2013, after Defendants failed to ti mely answer the Complaint, this Court granted the City’s Motion for Default Ju dgment.
9. Defendants have failed to remedy the violations for 52 and 68 North Cove Road.
10. The City’s legal fees and expenses incurred in this matter total $4,104.50.
11. The City’s Code enforcement staff incurred total co sts of $6,069.00 investigating and seeking correction of the violations in this ma tter.
Discussion Due to Defendants’ failure to appeal or otherwise t imely challenge the August 24 and September 14, 2012 Notices of Violation, the al leged violations are final and binding. 24 V.S.A. §§ 4472(a), (d). 1 Furthermore, as a consequence of Defendants failure to timely answer the Town’s complaint, the Court previously awarded a default judgment in the City’s favor. During our August 29, 2014 hearing, the Court consi dered appropriate remedies for the violations. Ms. Muir admitted to the place ment of fill on Defendants’ properties but asserted that this was done to prevent erosion, to repair erosion, and to repair sinkholes. Ms. Muir also admitted that they constr ucted a rock wall using rocks placed along the cove, but she offered that this activity was for erosion control rather than as a retaining wall. Ms. Muir further admitted to parki ng a camper, allowing storage
trailers and several vehicles to be stored on their property, and to storing firewood and other lumber and materials on their property. Ms. Muir asserted that all of these activities were necessitated by Hurricane Irene. Ms. Muir additionally admitted that Defendants hav e not complied with permit
conditions for 68 North Cove Road and that there ar e multiple vehicles and storage trailers on the property. Again, Ms. Muir argued t hat this was a consequence of difficulties caused by flooding from Hurricane Iren e.

1 “[T]he exclusive remedy of an interested person wi th respect to any decision or act taken, or any fai lure to act, under this chapter or with respect to any o ne or more of the provisions of any plan or bylaw s hall be the appeal to the appropriate panel under sectio n 4465 of this title . . . .” 24 V.S.A. § 4472(a). “Upon the failure of any interested person to appeal to a n appropriate municipal panel under section 4465 of this title, all interested persons affected shall be bou nd by that decision . . . and shall not thereafter contest, either directly or indirectly, the decision . . . . ”5

As discussed above, the determination that violati ons have occurred on Defendants’ properties is final and binding. The T own’s Complaint for enforcement seeks an injunction requiring Defendants to cease a ll continuing violations, including but not limited to, removal of all vehicles, materi als, and fill from 52 N. Cove Road, thereby restoring it to its recognized use as a vac ant lot, and complying with ZP#08- 246CA for 68 N. Cove Road, including, but not limit ed to, obtaining a Certificate of Occupancy. When a municipality seeks an injunction, the Court first asks whether the violation is substantial, and second, whether the l andowner’s violation is innocent or involves conscious wrongdoing. See Town of Shelbur ne v. Carpenter, 155 Vt. 126, 131– 32 (1990). The municipality does not have to show irreparable harm or the lack of an adequate alternative remedy to obtain an injunction ; the showing of a violation is
sufficient. Id. at 129.
The issue of whether the violation is substantial entails the difficult weighing of the public injury against the private loss. The Ve rmont Supreme Court has noted that there comes a point where the violation is so insub stantial that it would be unjust and inequitable to require action through a mandatory i njunction. See Id. at 131. Based upon the evidence in this matter, and a set forth i n the above findings of fact, the several
violations are substantial. In reviewing whether the violations are innocent o r conscious wrongdoing, we note that courts have generally found that a consci ous decision to go forward, in the face of a direction not to from the regulatory body , is not innocent. Id. at 132. Defendants have long been made aware by the City th at their many activities at the two properties are violations, and therefore, they cann ot be considered innocent. 24 V.S.A. § 4452 provides that if any construction or alteration of a structure or any change of use of land violates a bylaw, the “ad ministrative officer shall institute . . . any appropriate action, injunction, or other procee ding to prevent, restrain, correct, or abate that use, or to prevent, in or about those pr emises, any act, conduct, business, or use constituting a violation.” (emphasis added). We therefore **GRANT** the City an6

injunction and **ORDER** that Defendants immediately take action to cease t he continuing
violations at 52 and 68 North Cove Road. In addition to the above injunctive relief, this Co urt has “the discretion to determine the amount of a fine, and, in doing so, t o balance any continuing violation against the cost of compliance and to consider othe r relevant factors, including those specified in the Uniform Environmental Law Enforcem ent Act.” City of St. Albans v. Hayford, 183 VT 596, 600 (2008) (citing In re Jewel l, 169 Vt. 604, 606–07 (1999)). In this analysis, we accept Ms. Muir’s evidence explaining Defendants’ circumstances and difficulties, offered through testimony and exhibit s, as mitigating factors for the Court to consider when determining appropriate penalties and injunctive relief. We note that the City’s CDO, at Section 2.7.7(b) pr ovides that pursuant to an enforcement action, any person who violates the ord inance shall be fined not more than the maximum amount authorized by statute for each o ffense. The enabling statute, 24 V.S.A. § 4451(a), formerly authorized assessment of $100 per day per offense. Effective July 1, 2012, this statute was amended to authorize assessment of up to $200 per day offense. Both the August 24 and September 14 Notic es of Violation expressly state that a person who violates the CDO may be subject to fin es up to $100 for each day the violation continues. Thus, we conclude that the ma ximum fine that we could impose in this matter is limited by the terms of the two Noti ces of Violation, this being a maximum of $100 for each day a violation continues. With respect to 52 North Cove Road, Defendants had seven days from the August 24, 2012 Notice of Violation, or until Augus t 31, 2012, to cure the violations without being subject to fines and penalties. As o f August 29, 2014, the violations were not cured. Thus, there are in excess of 720 days t hat the violations existed at this property. Considering the eight individual offense s and that each day the violation continues is a separate offense, the potential pena lty range for this property is $5,760 2 to $576,000.

2 The minimum fine we consider is $1 for each day fo r each offense.7

With respect to 68 North Cove Road, Defendants had seven days from the September 14, 2012 Notice of Violation, or until Se ptember 21, 2012, to cure the violations without being subject to fines and penal ties. As of August 29, 2014, the violations were not cured. Thus, there are in exce ss of 700 days that the violations existed at this property. Considering the seven in dividual offenses and that each day the violation continues is a separate offense, the potential penalty range for this property is $4,900 to $490,000. The total penalty range for the two properties is t herefore between $10,660 and $1,066,000. The City seeks a minimum fine of $10,1 73.50 which is the equivalent of its attorney fees and other costs of enforcement. In our considering enforcement matters, we consiste ntly conclude that Section 4451(a) implies that “we reserve a fine of $100.00 per day for the most egregious of zoning infractions.” In re Huntington NOV Appea l and Town of Bradford v. Huntington, Nos. 204-8-06 Vtec and 209-9-06 Vtec, s lip op. at 8 (Vt. Envtl. Ct. Mar. 18, 2008) (Durkin, J.); see also Town of Hinesburg v. D unkling, 167 Vt. 514 (1998). Fines authorized by 24 V.S.A § 4451(a) are civil in natur e; they must not be punitive and they must be “rationally related to the damages suffered from landowner’s violation of [the] Town’s bylaw.” Id. at 528. It is clear that the C ity has incurred considerable expense, including expenditures for both legal services and staff time and resources, to compel Defendants’ compliance, and that Defendants’ contin ued non-compliance puts neighboring properties and people at some safety ri sks.
We also note that the Uniform Environmental Law Enf orcement Act, 10 V.S.A.§ 8010(b), sets forth seven factors for consi deration in determining the appropriate penalty for violating environmental law s and regulations. 3 These factors include the degree of actual or potential impact on public health, safety, welfare, and the environment resulting from the violation; the p resence of mitigating circumstances, including unreasonable delay in seeking enforcement ; whether the respondents knew

3 Section 8010(b) expressly applies to violations of state environmental law, however, we have used the se factors for considering municipal violations. See City of St. Albans v. Hayford, 183 VT 596 (2008).8

or had reason to know the violation existed; Respon dents’ record of compliance; the deterrent effect of the penalty; the City’s cost of enforcement; and the length of time the violations existed. Therefore, in light of the inj unctive relief requiring Defendants to cease all continuing violations, and based on mitig ating factors set forth in 10 V.S.A. § 8010(b, we conclude that in this instance a fine of $1.00 per day is appropriate. We therefore impose a fine of $10,660.00.
Conclusion Within 60 days of this Order, Defendants shall ceas e the violations at 52 and 68 North Cove Road by, including but not limited to, r emoving all vehicles and fill material from 52 North Cove Road to restore the pro perty to its use as a vacant lot and by complying with Zoning Permit 08-246CA at 68 Nort h Cove Road by, including but not limited to, obtaining a Certificate of Occupanc y. Within 30 days of this Order, pursuant to 24 V.S.A. § 4451 and CDO § 2.7.7(b), Defendants shall pay to the City a fine of $ 10,660 .00.

Electronically signed on January 23, 2015 at 11:04 AM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division