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.”
Comments
Post a Comment