STATE OF VERMONT ENVIRONMENTAL COURT
} Smith NOV Appeal } Docket No. 117-5-06 Vtec }

Decision on Motion for Injuncti ve Relief and Monetary Penalties
Appellant Dennis Smith has filed appeals from the dismissal of his challenge to a Notice of Violation (Docket No. 117-5-06 Vtec) and denial of his application for site plan approval (Docket No. 74-4-06 Vtec). This Court has jurisdiction over thes e municipal appeals pursuant to
Rule 5 of the Vermont Rules of Environmental Court Proceedings (V.R.E .C.P.). Now pending before the Court is the Town of Wallingford (“To wn”) motion for injunctive relief and monetary penalties, including at torney fees, in Docket No. 117-5-06 Vtec. 1 Appellant opposes that
motion. 2 Appellant is represented by John H. Bloomer, Jr., Esq.; the Town is represented by John S. Liccardi, Esq.; interested persons George a nd Jill Burkett are represented by Stephanie A. Lorentz, Esq.; and interested person Karen Lamay represents herself.
Procedural History Appellant first applied, on December 8, 2005, for site plan approval to move a construction business to his prop erty at 2243 U.S. R oute 7 (Application No. 05-69). The Town of Wallingford Planning Commi ssion (“Planning Commission”) held a hearing, determined that the application was incomplete and notified Appe llant that he would need to submit a more thorough application. On February 7, 2006, Appe llant submitted Application No. 06-10 to the Zoning Administrator, again seekin g site plan approval to move the construction business. The Planning Commission held a hearing on Applicati on No. 06-10 and issued a written decision on March 17, 2006, finding that the app lication was again incomplete. As a consequence of this determination, the Planning Com mission denied Appellant’s se cond application. Appellant

1 The Town has only filed its pending motions in the notice of violation appeal (Docket no. 117-5-06 Vtec). Appellant makes reference in the captio n of his memoranda in opposition to both the notice of violation appeal and the site plan appeal (Docket No. 74-4-06 Vtec). We regard the motion as having only been filed in the former appeal and not the latter appeal.

2 The Town has also filed a motion for summary judgme nt in Docket no. 117-5-06 Vtec, which the Court will address in a separate decision that follows this decision.2 thereafter appealed the Planning Commission denial to th is Court, which is now the subject of
Docket No. 74-4-06 Vtec. On March 29, 2006, the Town of Wallingford Z oning Administrator issued a Notice of Violation to Appellant, citing tw o alleged violations. The firs t referenced violation was for changing the use of Appellant’s Ro ute 7 property to a contractor’s yard w ithout first obtaining a change of use permit, as re quired by the Town of Wa llingford Zoning Regulations (“Regulations”). The second referenced violation was for filling in an area that is considered floodway, in violation of the Town of Wallingf ord Flood Plain Management Ordinance (“Flood Plain Ordinance”). Appellant filed a timely appeal 3 of that decision on April 12, 2006. The Wallingford Zoning Board of Adjustment (“ZBA”) held a hearing on the appeal on April 27, 2006. However, Appellant did not appear at that hearing. The ZBA ther eafter issued a written
decision “to vacate . . . and dism iss” his appeal on May 2, 2006. Appellant filed timely appeals of both the Planning Commission decision denying site plan approval (Docket No. 74-4-06) and the ZBA decision dismissing and vacating his appeal of the NOV (Docket No. 117-5-06). In Docket No. 117-5-06, the Town filed a Verified Motion for Order to Cease and Desist, seeking injunctive re lief in the form of an order requiring (1) immediately cessation all business activities relate d to LMS Construction and any other business
not connected with Mill River Auto Sales on the Route 7 parcel; (2) imme diate removal of any and all vehicles, equipment, machinery and property from the Route 7 parcel except that connected with Mill River Auto Sales; and (3 ) monetary penalties an d payment of reasonable legal fees in the event of conti nuing violations of the order. To date, the Town has not initiated an enforcement action in this Court based upon e ither of the violations alleged by the Zoning Administrator on March 29, 2006.

Discussion Disposition of the Town’s motion requires a brief analysis of the jurisdictional limits governing this Court. The Vermont Legislature c onferred on this Court th e jurisdiction to hear various types of cases, a ll of which have been codified in the Vermont Rules for Environmental

3 Appellant filed his appeal on a Town supplied form entitled “Appeal of Zoning Administrator’s Decision.” Exhibit C to the Town’s motion is a copy of the Appeal form Appellant completed and submitted to the ZBA. Appellant’s completed Appeal form appears to only refe rence the Zoning Administrator’s allegation that Appellant violated the Flood Plain Ordinance; there is no reference to the allegation of a change of use violation of the Regulations.3 Court Proceedings. In some cases , our jurisdiction is original, see V.R.E.C.P. 3, and in some cases, it is appellate, see V.R. E.C.P. 5. In the case of the former, under V.R.E.C.P. 3, a municipality can file with this Court an origin al civil action to enforc e its bylaws or zoning regulations. In such actions, th e municipality may recover fine s and penalties, including those based upon the costs incurred in securing compliance with the zoning regulations. See V.R.E.C.P. 3(5) & (6). The statutory basis for these enforcement actions are 24 V.S.A. §§ 4451 and 4452. Section 4451 provides, in relevant part, that
Any person who violates any bylaw after it has been a dopted under this chapter or who violates a comparable ordinance or regulation adopted under prior enabling laws shall be fined not more than $100.00 for each offense. No action may be brought under this section unless the allege d offender has had at least seven days' warning notice by certified mail. An action may be brought without the seven-day notice and opportunity to cure if the alle ged offender repeats the violation of the bylaw or ordinance after the seven-da y notice period and within the next succeeding 12 months....
Section 4452, in turn, states:
If any street, building, structure, or land is or is proposed to be erected, constructed, reconstructed, al tered, converted, maintained, or used in violation of any bylaw adopted under this chapter, the ad ministrative officer shall institute in the name of the municipality any appr opriate action, injunction, or other proceeding to prevent, restrain, correct , or abate that construction or use , or to prevent, in or about those premises, any act, conduct, business, or use constituting a violation. A court action under this sec tion may be initiate d in environmental court, or as appropriate, before the j udicial bureau, as provided under section 1974a of this title. 24. V.S.A. § 4452 (emphasis added.)
The Town has not yet initiated an action in this Cour t as authorized by 24 V.S.A. § 4452. The currently pending appeals, Docket Nos. 74-4-06 Vtec and 117-5-06 Vtec, were filed pursuant to V.R.E.C.P. 5, which allows an inte rested party with sta nding to appeal to the
Environmental Court “from an act or decision of an appropriate municipal panel pursuant to 24 V.S.A. §§ 4471 [and] 4472.”
As noted in the text of the Rule 5, when presid ing over an appeal brought under Rule 5, this Court is acting in an appellate capacity, which confers only limited jurisdiction. See In re Appeal of Jolley Assocs. , 2006 VT 132, ¶ 9 (quoting In re Garen , 174 Vt. 151, 156 (2002)).4 Thus, the Environmental Court cannot consider i ssues beyond those include d in the statement of questions filed by a proper appellant. See Village of Woodstock v. Bahramian , 160 Vt. 417, 424 (1993) (noting that trial court has “no power” to consider issu es not raised by appellant in statement of questions). Here, the only issues preserved for this Cour t’s review in either of the pending appeals are whether the site plan application should have been approved and whether the NOV should have been issued. In its pending motion, the To wn requests injunctive re lief under V.R.E.C.P. 3 and 24 V.S.A. § 4452. However, such relief is beyond the jurisdictiona l authority conferred upon this Court by the pending appeals. The Town has yet to commence “an action” against Appellant pursuant to 24 V.S.A. § 4452 and V.R.E.C.P. 3, which is the only basis by which this Court would have jurisdiction to
order the relief the Town now seeks. We are c onfined in Docket No. 117-5-06 to hearing issues within the scope of Appellant’s Statement of Questions. Those Questions relate to the propriety
of the notice of violations i ssued by the Zoning Administrator and upheld by the ZBA. The question of whether the Town is entitled to inj unctive relief or monetary damages is not the subject of either pending appeal. The issues raised by the Town’s motion, including its requests for injunctive relief and monetary penalties, may only be properly addressed in an enforcement action, which the Town has yet to fi le with this Court. The Town’s requests for such relief are therefore outside the scope of the jurisdic tion the Court has in the pending appeals. 4

For the foregoing reasons, Appellee’s Verified Motion for Order to Cease and Desist is hereby DENIED

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Done at Berlin, Vermont this 18 th day of December, 2006.

___________________________________ Thomas S. Durkin, Environmental Judge

4 Nothing contained in this Decision should be read to prohibit the re-filing of the Town’s motion in an enforcement action filed with this Court as some future date.