The Notice of Violation explained Defendants' appeal rights. Defendants did not appeal the Notice of Violation, and hence are precluded from contesting that they were in violation at the time of the notice. Defendants sought a stay of enforcement in Environmental Court, which the Court denied initially because no enforcement action was pending before it, and directed Defendants to the Supreme Court to apply for any stay related to the permit decisions which had been appealed to Supreme Court. After this action was filed, Defendants again sought a stay, which the Court denied because no Court order to remove the structure had issued. That denial was without prejudice to the renewal of the motion after any mandatory injunction would issue from this Court.
Defendants oppose removal of any portion of the building, and oppose the payment of any penalty.
In particular, Defendants oppose the imposition of attorney's fees, in that they are supported only by the Village's attorney's affidavit and not by any independent evidence of their reasonableness or necessity in this enforcement action. The substantial portion of the new building extending into the setback area was built while the permit appeal was pending in Environmental Court and after the Court's warning that it would be ordered to be removed if the variance was denied and the conditional use permit and zoning permit could not be issued. The building blocks the view of Intervenor's business from potential customers passing by on Pond Street. It was oriented so that snow slides off its roof onto Intervenor's property, limiting Intervenor's use of his own property for customers' parking during the winter season, and endangering property or persons in the path of any snow slide, and causing Intervenor expense in the removal of that snow. Snow sliding off the roof of the dormer which extends into the north setback slides onto Intervenor's property to the north, and last winter destroyed a sixteen foot segment of his fence at that location.