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| This is a monstrous pergola. You'd definitely need a permit for this one. |
In re: Langlois
Friends, we’ve got ourselves an equitable estoppel case here. I’ve written about equitable estoppel before. Ah, it was a simpler time then.
This mess starts back in 2014 neighbors in the lovely town of Swanton. The relevant neighbors are Langlois and Heller. Langlois has a house with a patio, and from what I can tell, the patio has been there for many years. Team Langlois thought it would be nice to construct a pergola to go over the patio.
For those unfamiliar, a pergola is an open structure that sort of looks like a building frame but without any walls on it. You often see these with vines growing up the sides. For example, the Denver Botanic Garden has an arched pergola with hops growing on it. This is a mighty fine use of a pergola. Also, if you go to Denver, I heartily recommend a trip to the garden. It’s really nice and full of really creative plantings, like an herbal wall.
You’d think putting up a pergola is a great plan. Anyone who wants to construct something upon which they can grow beautiful plants and food is really on to something. You’d be right, unless somehow this interferes with someone else.
Enter Heller, stage left. Heller lives next door, and as we learn from the dissent in this case, had some issues with the Langlois pergola. As I understand it, Langlois moseyed over to the Hellers and mentioned the project. The Hellers didn’t exactly object, but asked Langlois not to put screens on the pergola. I’m not sure if they did or not, but that seems to have been the initial concern. It turns out, their issue with the pergola, and possibly with the screens, is that it would block some or all of the Hellers’ view of Lake Champlain. Understandably, they wouldn’t want their view ruined.
It turns out Langlois was also friendly with Kilburn. At the time, Kilburn was the town zoning administrator, and had been for several years. Kilburn was over at Chez Langlois one day when Langlois talked to Kilburn about the pergola idea. Langlois knew Kilburn was the zoning guy for the town and thought he’d run the pergola plan up the figurative flagpole. Kilburn said he didn’t think Langlois would need a permit.
Langlois believed Kilburn – because why wouldn’t he? – and engaged a contractor, who made a sketch of Project Pergola. Langlois went back to Kilburn, this time at the town office. Kilburn confirmed he wouldn’t need a permit.
Oh, except that he did.
Swanton has zoning rules. In Swanton, if you want to go permit-free, you can only build one detached structure. It’s got to be 100 square feet or smaller, it’s got to be 10 feet or shorter, and it’s got to be at least 5 feet away from any property border. To me, this sounds like what you might call a “shed.” Because let’s be real: it would be silly and impractical to make the good people of Swanton get permits just so they can put away their lawnmowers and bicycles. If you want to go bigger, like Sharon’s She Shed, you’re going to need a permit. You also need a permit if you’re going to build on to an existing structure so that the footprint gets changed.
By early fall Project Pergola was complete. It didn’t go any larger than the existing patio, but it was certainly larger than what would be 100 square feet, and it was taller than 10 feet. And it was less than a foot away from the Hellers’ property line. And it cost $33,000.
Swanton, as you may be aware, is a small town. I don’t totally know how word of this got back to the selectboard, but it did, but only after Project Pergola was fully constructed. Oh, yeah, and the selectboard also found out Kilburn told Langlois that a permit wasn’t necessary. They were not pleased. They told Kilburn to correct the problem. Kilburn sent Langlois a letter and said even though he told them they didn’t need a permit, they really did and they should submit a request along with a sketch so they could get an after-the-fact permit.
They did that, and Kilburn denied the permit immediately. Langlois applied for a variance, which had to go before the Development Review Board, which also denied the permit. He appealed to the Environmental Court. In June of 2015 – now nearly a year after Project Pergola came to be – Langlois received a letter from Kilburn telling them to remove it within 7 days or be subject to a fine.
Langlois appealed to the DRB and then to the Environmental Court.
If I was Langlois, I would be more than a shade perturbed right about now.
The Environmental Court concluded that it would be unjust to make Langlois remove Project Pergola at this point, and indicated that it could stay, under the doctrine of equitable estoppel.
Heller, who was involved at this point as an interested party, appealed to SCOV, who affirmed the Environmental Court.
There are 4 elements to equitable estoppel. 1. The party to be estopped knows the relevant facts. 2. The party being estopped must intend that his or her conduct be acted upon. 3. The party asserting estoppel must be ignorant of the true facts. 4. The party asserting estoppel must rely to his or her detriment on the estopped party’s representations. And as a bonus, if the party to be estopped is the government, the other party has to show that the injustice they’d suffer outweighs the negative impact on public policy.
Basically it’s this. Langlois wanted to build something. He wasn’t sure if he needed a permit so he asked the person who would know: the town’s zoning administrator. It turns out they’re also friends, so Kilburn had the ability to visit the site and get a firsthand view. Based on this, and also based on a trip to the town office with a sketch, Kilburn said no permit was needed.
Langlois obviously relied on this, because he then turned around and shelled out $33,000 for a pergola without getting a permit. Why would he think Kilburn would tell him something that wasn’t accurate? Kilburn was the person literally in charge of this particular question. And also, why would Langlois second-guess Kilburn? The pergola didn’t enlarge the building’s footprint because it just stood above the patio, and because of what it was it also wasn’t an enclosure, like a shed. So, Langlois might have read the rule and thought he was in the clear but confirmed it with the town and thought he was all good to go.
Here’s the other part. Heller also sort of sat on his rights. He didn’t get involved until after the pergola was constructed. Had he gone to the town sooner than later and registered a complaint, the town might have looked at the project sooner and concluded that a permit was needed before a) the whole thing was built and b) Langlois spent a bucket of money on it.
SCOV finds that the just result would be to estop the Town of Swanton, thereby allowing Project Pergola to stand. The evidence showed that Langlois did what he thought he was supposed to do and talked to the right person about the project. And in reliance on two separate conversations with that person, spent a lot of money on the project. Making him tear it down after the fact would result in a serious economic harm to Langlois.
That’s not to say other people in town should go willy-nilly constructing $33,000 pergolas and expect it will be okay. Because they can’t, and it won’t be. But Kilburn, acting on behalf of the town, caused what would be a hardship on Langlois if Project Pergola had to be dismantled.
Justice Skoglund, joined by Justice Robinson, dissents.
Basically, they were good with all four factors and agreed that under normal circumstances, equitable estoppel would apply. But they didn’t believe that the injustice suffered by Langlois would outweigh any effect on public policy.
Taking a step back, the dissent argues that the citizens have every reason to believe that people will follow zoning laws, and will entrust towns to uphold zoning laws. Here, Heller wasn’t keen on the pergola, but probably thought the town wouldn’t allow it to go forward because of zoning rules. Had the town enforced its own rules, none of this would have happened. But the town didn’t enforce its own rules, and now there’s this pergola obstructing Heller’s view.
The dissent feels the majority relied too heavily on the monetary costs to Langlois. It was particular to him. It wasn’t a situation, as in other government-related equitable estoppel situations, where that estoppel acted as a shield and would prevent harm to other people.
It’s a rare step to enforce equitable estoppel against a government, and the dissent didn’t feel this was the right case for it to happen.
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