Thursday, August 22, 2013

How Things Are Holding Up

In re Wood NOV, 2013 VT 40

We’ve all been there: you just want to get something done, then you run into bumps along the way and everything takes a little longer than you expected.  And we all know the saying, “if at first you don’t succeed, try, try again.”  However, it is a little known fact that this is only an abbreviated version of the adage, like Emerson’s quote on consistency.  Today’s case illustrates, that the saying should actual go: “if at first you don’t succeed, try, try again . . . .  Then, at a certain point, cut your losses and quit!  Your call when, but definitely not ten!

Bear with me.

This case arises from a decade-long dispute between the Town of Hartford and a landowner concerning two parcels of land.  It all started when landowner decided to level a portion of the property in order to increase the amount of developable land.  To this end, landowner hired an engineer to design a 35-foot, concrete retaining wall.  The engineer provided detailed specifications for the wall, which landowner then submitted as part of his proposal to the Town.  Based on that design, the Town approved the application and issued a permit, upon the condition that the engineer would later certify that the wall was constructed in accordance with the approved design.

Sounds sensible, but as we know sensible rarely ends up before the SCOV.  Soon thereafter, the Town served landowner with a notice of violation and filed an enforcement action based on concerns about the recycled concrete slabs landowner had piled to construct the wall in lieu of the permits materials.  This enforcement action was consolidated with the landowner’s separate appeal from the notice of violation and garnished with an additional easement dispute between the two.  The trial court ruled against the landowner, finding that the concrete slabs did not meet the approved design specifications.  The trial court noted that landowner could seek to amend those specifications, with the Town’s approval, and the SCOV upheld the decision on review.

As you may anticipate, landowner then sought to amend the permit.  His application was shot down, in part, based on the Town’s conclusion that the permit had expired.  This time on appeal, the trial court concluded that the permit had not expired and that the Town was required to consider the application.

Round three: Landowner renewed his application, which the Town rejected as incomplete, based in part on the absence of a new site plan completed by a licensed engineer.  The Town’s Zoning Board agreed, and the parties were off to court, again.  On appeal, the trial court conducted a site visit and upheld the Town’s determination.  The trial court also rejected landowner’s challenge to the Town’s application submission policy, and the SCOV later dismissed an appeal from that determination as untimely.

Did this end the dispute?  Guess!

Landowner filed another application to amend the permit and, again, the Town rejected it as incomplete.  As the application was still missing the site plan required by the Town, the trial court rejected the new application for the same reasons as the last.

Permit schmermit: landowner started building the wall.  After the trial court rejected a few more of landowner’s appeals because they raised issues that had already been decided, the parties each filed motions for contempt: the Town against landowner because he started building without a permit, and landowner against the Town based on its perceived violation of a court order to consider his applications for an amended permit.  The trial court found landowner, but not the Town, in contempt.

After a few more dances at the trial court level, all of which were unfavorable to landowner, the Town issued another notice of violation based on landowner’s noncompliance with the original permit.  The notice gave landowner seven days to file a complete application for the wall.  Landowner responded by filing separate applications for both parcels, only one of which addressed the wall, even though it spanned both properties.  The Town rejected both applications as incomplete, not only because neither one included the wall in its entirety, but also because it was missing certain required components, just as his prior applications had.  The Zoning Board agreed.

The Town commenced an enforcement action against landowner, which, along with landowner’s appeals from the Zoning Board’s most recent decisions regarding the completeness of his application, was resolved in favor of the Town.  Following the determination that landowner had “committed serious zoning violations” and ignored the Town’s numerous demands that he cease his operations, the trial court ordered that landowner have the wall removed from his property and imposed a $51,300.00 fine.  The trial court also affirmed the Zoning Board’s determinations that landowner’s applications were incomplete based on his continued failure to meet the Town’s reasonable request that he furnish details as to the wall’s integrity or the proposed construction.

Finally, we arrive at the present appeal to the SCOV.  Landowner’s many claims of error are distilled into three general categories.  First, he argues that the retaining wall conformed to the original permit as certified by the engineer.  Just as the trial court had, the SCOV rejects this argument finding that landowner conceded at oral argument that this was not the case and, in any event, he was not in the position to re-litigate this already-resolved issue.  Second, the SCOV rejects landowner’s claim that a permit was not required because one of the parcels had a preexisting nonconforming use.  Third, the SCOV finds that the record supports the trial court’s conclusion that landowner’s applications were incomplete.  In sum, the SCOV rejects landowner’s arguments for the same reasons they had been rejected numerous times before.

As for the specifics, the SCOV finds that the trial court properly concluded that landowner abandoned the property’s nonconforming use as a club for a continuous period of time.  The evidence in support of that conclusion: the building at issue stood vacant for many years, during which time it had no heat, electricity, or water, and many of the windows had been broken by vandals.  Moreover, landowner never sought a certificate of occupancy nor a permit for the alleged continued use.  Although landowner asserted that the lack of heat, hot water, and electricity did not prove that its use as a private club had been abandoned, I think we can all agree that this would not have been a very fun club.  Unless, perhaps, it had been an “extreme survival club” or a Goonies-theme park, but it would appear that the SCOV rejects these possibilities.

The SCOV next casts aside landowner’s assertion that an extension of the nonconforming use was automatically granted because the Town did not act upon landowner’s request within the allotted 30 days, first, because the application was not complete, and second, because the request came more than six months after the existing permit had already expired.  The SCOV also summarily rejected landowner’s assertion that there can be no abandonment with a valid permit, namely because the property was not developed in accordance therewith.

The landowner’s next argues, based on his interpretation of the Hartford Zoning Regulations, that no permits were required because he was building three separate walls, rather than one larger wall.  The SCOV rejects this argument for the same reasons as the trial court: landowner’s permit application never provided design details for multiple walls; the wall as constructed is a single wall; the landowner’s engineer acknowledged that the wall was designed as one wall; none of the surveys indicated separate walls (except for one landowner submitted at trial which was discredited by the court); and landowner never previously argued that there were three walls.  On this point the SCOV rules that, although the plural word “walls” had been used in the permit, some of the trial court decisions, and in letters from the Town’s engineer, such references do not demonstrate the existence of three walls.  Specifically, the SCOV finds that the use of the word “walls” can be chalked up to the fact that the single wall was made up of individual concrete slab sections, and were therefore referred to as “the concrete slab walls” or “concrete slab wall sections” in communications regarding their design.  Ultimately, the SCOV concludes, in spite of the landowner’s assertions, “that there is and always was only one wall.”

Next, the SCOV concludes that the safety concerns posed by the landowner’s wall justified the Town’s and the trial court’s insistence that an independent review of the engineer certification and site plan review was necessary.  Along the same vein, the SCOV finds that a previous review by an independent engineer—which occurred well before construction of the wall began—did not satisfy that requirement because the engineer did not monitor construction of the wall, which ultimately did not comply with the design as approved under the permit.  Further, The SCOV finds testimony by the engineer landowner hired to certify the wall not credible because his opinions were largely based on landowner’s representations regarding the specifics of the wall rather than upon the engineer’s own observations.

The SCOV also concludes that the trial court did not abuse its discretion by imposing a fine on landowner.  Indeed, the fine was warranted by landowner’s persistent refusal to abide by the permit and the applicable regulations.  Contrary to landowner’s assertions, the SCOV finds that the trial court’s decision was not based on a personal vendetta against him, but rather was amply supported in the record relied on by the trial court.  The SCOV rejects landowner’s remaining contentions on the basis that they are not yet ripe for review, they had already been addressed, or because they raised issues unrelated to the present appeal.

So there you have it, folks.  Persistence may be a virtue, but like anything else good in this world, moderation is king.  Take heart, dear landowner: as Thomas Edison may not have said, but to whom the quotation is attributed, “I have not failed, not once.  I have discovered ten thousand ways that don’t work.”

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