STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of V.G. General Store, Inc. } Docket No. 84‐5‐04 Vtec } }
Decision on Appellee’s Motion for Summary Judgment
V.G. General Store, Inc. appealed from a decision of the Town of Waitsfield
Zoning Board of Adjustment (ZBA) dated April 20, 2004, upholding a notice of
violation issued by the Town Zoning Administrator on January 6, 2004. Appellant is
represented by Richard Johnston King, Esq.; the Town of Waitsfield (Town) is
represented by Amanda S. E. Lafferty, Esq. The Town has moved for summary
judgment, seeking dismissal of the appeal. Appellant opposed the Town’s motion by
way of an “Affidavit in Opposition.” The Town has also moved to strike the reference
in Appellant’s Affidavit to pictures in the Court’s file showing the site.
Factual Background
Whenever a court considers a motion for summary judgment, it must view all
material facts in a light most favorable to the non‐moving party. Carr v. Peerless
Insurance Co., 168 Vt. 454, 476 (1998). Most of the facts that are material to the pending
appeal are not in dispute. The material facts, including those that we must view in a
light most favorable to Appellant, are as follows:
1. Appellant V.G. General Store, Inc. (“V.G.”) is a Vermont corporation,
wholly owned by David Frank. V.G. owns a parcel of land located at 4348 Main Street
(Vermont Route 100) in the Village Business District in Waitsfield, Vermont (the
“Property”).
1 2. The Property consists of .46± acres of land improved with gasoline pumps
and a grocery store and deli, collectively known as “The Village Grocery.”
3. Appellant acquired the Property from Robert F. Quinn on July 11, 2001.
4. On August 11, 1993, the Town Planning Commission granted site plan
approval to Appellant’s predecessor‐in‐interest for proposed modifications to the
Property with five conditions, two of which (conditions 2 and 3) are relevant here:
2. The paved area in front of the porch nearest Route 100 will be removed for the width of the porch and be restored as green area by June 14, 1994. 3. A revised site plan will be submitted to the Planning Commission for approval, showing the green area and proposed signage.
5. The Planning Commission’s August 11, 1993 decision was not appealed
by any interested person.
6. On August 31, 1993, the Town Zoning Administrator issued a zoning
permit (#1794) to Appellant’s predecessor‐in‐interest, authorizing construction of the
proposed modifications that were the subject of the Planning Commission’s prior site
plan approval, subject to the conditions of that site plan approval, including Conditions
2 and 3.
7. The Zoning Administrator’s grant of a zoning permit was not appealed by
any interested person.
8. Appellant’s predecessor‐in‐interest did not comply with Condition 2 of
the 1993 site plan approval and zoning permit.
9. Appellant’s predecessor‐in‐interest did not comply with Condition 3 of
the 1993 site plan approval and zoning permit until June 7, 2000, when in connection
with Application #2410 (relating to lighting and signage over the gasoline pumps), Mr.
Quinn submitted a one‐page landscaping plan showing a proposed planter box/grass
2 area located between the porch and Route 100. The proposed planter box was to be
filled with topsoil and planted with grass, closing the northerly curb cut on the site.
10. On June 14, 2000, the Planning Commission issued its decision, granting
final site plan approval for Application #2410, and approving the landscaping plan for
the proposed planter box, with modifications to the length of the planter box sides. The
decision required Appellant’s predecessor‐in‐interest1 to remove the asphalt
underneath the proposed planter box, and complete all work on the planter box “by
July 1, 2000 or directly following the [ZBA] approval.”
11. The Planning Commission’s June 14, 2000 decision was not appealed by
12. Appellant’s predecessor‐in‐interest never complied with the 1993 zoning
permit and 2000 site plan approval. He never removed the asphalt between the porch
and Route 100, nor did he replace it with a planter box containing topsoil and grass.
13. Since acquiring the Property in 2001, Appellant has complied with neither
the 1993 zoning permit nor the 2000 site plan approval by removing the asphalt
between the porch and Route 100 and replacing it with a planter box containing topsoil
and grass.
14. On January 6, 2004, the Zoning Administrator issued to Appellant a notice
of violation for the “long‐standing violation regarding grassing over the area in front of
the porch.”
15. On January 26, 2004, twenty days after its issuance, Appellant appealed
the notice of violation to the ZBA.
1 The Decision also notes, at ¶10, that “[b]y acceptance of the conditions of this decision without appeal, the Applicant confirms and agrees that the conditions of this decision shall run with the land and the land uses herein permitted, and will be binding upon and enforceable against the Permittee and all assigns and successors in interest.”
3 16. On April 20, 2004, the ZBA denied the appeal and upheld the notice of
violation. Appellant appealed the ZBA’s April 20, 2004 decision to this Court on May
20, 2004.
Discussion
As a preliminary matter, we note that the Planning Commission’s decisions of
1993 and 2000 and the Zoning Administrator’s 1993 grant of a zoning permit were not
appealed, and are therefore final judgments which cannot be contested directly or
indirectly in this proceeding, pursuant to 24 V.S.A. § 4472(d). Appellant appealed the
January 6, 2004 notice of violation to the ZBA on January 26, 2004, twenty days after the
notice was issued by the Zoning Administrator. Appellant’s appeal is subject to the
time limits imposed by the former 24 V.S.A. § 4464(a), as the appeal to the ZBA was
filed prior to the June 30, 2004, effective date of the new statute. Both the former
§ 4664(a) and the current § 4465(a) provide that the notice of appeal from an act or
decision of an administrative officer must be filed within 15 days of that decision or act.
The Zoning Bylaw (Bylaw) in effect at the time of the appeal to the ZBA also provides a
15‐day time limit for the filing of such appeals, Bylaw § 6.4.
Appellant’s appeal would therefore ordinarily be time‐barred by both statute
and the Bylaw. However, as the ZBA accepted the appeal,2 and given “the desirability
of resolving litigation on the merits,” Desjarlais v. Gilman, 143 Vt. 154, 159 (1983), we
proceed to address the merits of this appeal in the context in the Town’s motion for
summary judgment.
Before we address the merits of the pending appeal, we note that Appellant’s
response to the Town’s summary judgment motion, supporting legal memoranda, and
2 We do not hold here that the acceptance of the appeal by the ZBA constituted a waiver of the 15‐day limit. We also recognize that Appellant infers that it relied upon an extension of time requested by its attorney and granted by the Zoning Administrator. Because we believe it appropriate to proceed to a review of the substantive legal issues in this appeal, we make no determination as to whether a zoning administrator has the authority to extend the time within which an appeal must be filed.
4 statement of undisputed facts was in the form of a single filing, entitled “Affidavit in
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STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of V.G. General Store, Inc. } Docket No. 84‐5‐04 Vtec } }
Decision on Appellee’s Motion for Summary Judgment
V.G. General Store, Inc. appealed from a decision of the Town of Waitsfield
Zoning Board of Adjustment (ZBA) dated April 20, 2004, upholding a notice of
violation issued by the Town Zoning Administrator on January 6, 2004. Appellant is
represented by Richard Johnston King, Esq.; the Town of Waitsfield (Town) is
represented by Amanda S. E. Lafferty, Esq. The Town has moved for summary
judgment, seeking dismissal of the appeal. Appellant opposed the Town’s motion by
way of an “Affidavit in Opposition.” The Town has also moved to strike the reference
in Appellant’s Affidavit to pictures in the Court’s file showing the site.
Factual Background
Whenever a court considers a motion for summary judgment, it must view all
material facts in a light most favorable to the non‐moving party. Carr v. Peerless
Insurance Co., 168 Vt. 454, 476 (1998). Most of the facts that are material to the pending
appeal are not in dispute. The material facts, including those that we must view in a
light most favorable to Appellant, are as follows:
1. Appellant V.G. General Store, Inc. (“V.G.”) is a Vermont corporation,
wholly owned by David Frank. V.G. owns a parcel of land located at 4348 Main Street
(Vermont Route 100) in the Village Business District in Waitsfield, Vermont (the
“Property”).
1 2. The Property consists of .46± acres of land improved with gasoline pumps
and a grocery store and deli, collectively known as “The Village Grocery.”
3. Appellant acquired the Property from Robert F. Quinn on July 11, 2001.
4. On August 11, 1993, the Town Planning Commission granted site plan
approval to Appellant’s predecessor‐in‐interest for proposed modifications to the
Property with five conditions, two of which (conditions 2 and 3) are relevant here:
2. The paved area in front of the porch nearest Route 100 will be removed for the width of the porch and be restored as green area by June 14, 1994. 3. A revised site plan will be submitted to the Planning Commission for approval, showing the green area and proposed signage.
5. The Planning Commission’s August 11, 1993 decision was not appealed
by any interested person.
6. On August 31, 1993, the Town Zoning Administrator issued a zoning
permit (#1794) to Appellant’s predecessor‐in‐interest, authorizing construction of the
proposed modifications that were the subject of the Planning Commission’s prior site
plan approval, subject to the conditions of that site plan approval, including Conditions
2 and 3.
7. The Zoning Administrator’s grant of a zoning permit was not appealed by
any interested person.
8. Appellant’s predecessor‐in‐interest did not comply with Condition 2 of
the 1993 site plan approval and zoning permit.
9. Appellant’s predecessor‐in‐interest did not comply with Condition 3 of
the 1993 site plan approval and zoning permit until June 7, 2000, when in connection
with Application #2410 (relating to lighting and signage over the gasoline pumps), Mr.
Quinn submitted a one‐page landscaping plan showing a proposed planter box/grass
2 area located between the porch and Route 100. The proposed planter box was to be
filled with topsoil and planted with grass, closing the northerly curb cut on the site.
10. On June 14, 2000, the Planning Commission issued its decision, granting
final site plan approval for Application #2410, and approving the landscaping plan for
the proposed planter box, with modifications to the length of the planter box sides. The
decision required Appellant’s predecessor‐in‐interest1 to remove the asphalt
underneath the proposed planter box, and complete all work on the planter box “by
July 1, 2000 or directly following the [ZBA] approval.”
11. The Planning Commission’s June 14, 2000 decision was not appealed by
12. Appellant’s predecessor‐in‐interest never complied with the 1993 zoning
permit and 2000 site plan approval. He never removed the asphalt between the porch
and Route 100, nor did he replace it with a planter box containing topsoil and grass.
13. Since acquiring the Property in 2001, Appellant has complied with neither
the 1993 zoning permit nor the 2000 site plan approval by removing the asphalt
between the porch and Route 100 and replacing it with a planter box containing topsoil
and grass.
14. On January 6, 2004, the Zoning Administrator issued to Appellant a notice
of violation for the “long‐standing violation regarding grassing over the area in front of
the porch.”
15. On January 26, 2004, twenty days after its issuance, Appellant appealed
the notice of violation to the ZBA.
1 The Decision also notes, at ¶10, that “[b]y acceptance of the conditions of this decision without appeal, the Applicant confirms and agrees that the conditions of this decision shall run with the land and the land uses herein permitted, and will be binding upon and enforceable against the Permittee and all assigns and successors in interest.”
3 16. On April 20, 2004, the ZBA denied the appeal and upheld the notice of
violation. Appellant appealed the ZBA’s April 20, 2004 decision to this Court on May
20, 2004.
Discussion
As a preliminary matter, we note that the Planning Commission’s decisions of
1993 and 2000 and the Zoning Administrator’s 1993 grant of a zoning permit were not
appealed, and are therefore final judgments which cannot be contested directly or
indirectly in this proceeding, pursuant to 24 V.S.A. § 4472(d). Appellant appealed the
January 6, 2004 notice of violation to the ZBA on January 26, 2004, twenty days after the
notice was issued by the Zoning Administrator. Appellant’s appeal is subject to the
time limits imposed by the former 24 V.S.A. § 4464(a), as the appeal to the ZBA was
filed prior to the June 30, 2004, effective date of the new statute. Both the former
§ 4664(a) and the current § 4465(a) provide that the notice of appeal from an act or
decision of an administrative officer must be filed within 15 days of that decision or act.
The Zoning Bylaw (Bylaw) in effect at the time of the appeal to the ZBA also provides a
15‐day time limit for the filing of such appeals, Bylaw § 6.4.
Appellant’s appeal would therefore ordinarily be time‐barred by both statute
and the Bylaw. However, as the ZBA accepted the appeal,2 and given “the desirability
of resolving litigation on the merits,” Desjarlais v. Gilman, 143 Vt. 154, 159 (1983), we
proceed to address the merits of this appeal in the context in the Town’s motion for
summary judgment.
Before we address the merits of the pending appeal, we note that Appellant’s
response to the Town’s summary judgment motion, supporting legal memoranda, and
2 We do not hold here that the acceptance of the appeal by the ZBA constituted a waiver of the 15‐day limit. We also recognize that Appellant infers that it relied upon an extension of time requested by its attorney and granted by the Zoning Administrator. Because we believe it appropriate to proceed to a review of the substantive legal issues in this appeal, we make no determination as to whether a zoning administrator has the authority to extend the time within which an appeal must be filed.
4 statement of undisputed facts was in the form of a single filing, entitled “Affidavit in
Opposition to Motion for Summary Judgment.” This single filing does not satisfy the
minimum requirements for a party who wishes to oppose a motion for summary
judgment. See V.R.C.P. 56(c)(1) and (2). We recognize that time and cost constraints
often limit the filings that a party makes. However, when the filings made do not meet
the minimum requirements of Rule 56, the party opposing the motion places the court
in the awkward position of having to decipher whether a material dispute as to the facts
or the law truly exists. Because we intend to consider the substance of the issues in this
appeal, we choose not to strike Appellant’s Affidavit or photographs referenced therein.
Question 1: Challenge to 1993 & 2000 Decisions and Permit.
Question 1 of Appellant’s Statement of Questions asks: “Were the permits at
issue properly authorized and issued under the applicable laws and regulations in
effect at the time they were issued and on the record before the Town?” The “permits at
issue,” presumably the Planning Commission’s 1993 and 2000 decisions and the Zoning
Administrator’s 1993 grant of a zoning permit, are unappealed final judgments not
subject to reconsideration here, 24 V.S.A. § 4472(d). The validity of the unappealed
permit and decisions may not be attacked at this late date, even if they are alleged to be
void ab intio. See In re Ashline, 2003 VT 30, ¶ 10 (“We strictly enforce the exclusivity of
remedy provisions contained within § 4472 . . . . [W]e have consistently held that § 4472
bars attack on a zoning decision even when the decision is alleged to have been void ab
initio.”) (internal quotation and citations omitted). Question 1 must therefore be
dismissed.
Question 2: Authority to issue NOV.
Question 2 of Appellant’s Statement of Questions asks: “Were the notices of
violation properly authorized and issued under the applicable laws and regulations
currently in effect and on the record before the Town?” It appears that there is only one
5 notice of violation at issue in this case, issued on January 6, 2004. Appellant makes no
argument as to why that notice might not be properly authorized and issued. In fact, it
is worth noting that Appellant makes no argument whatsoever. As there is no
statement of the material facts as to which it is contended that there exists a genuine
issue to be tried, the material facts in the Town’s statement are deemed admitted. In the
absence of any argument as to why the notice of violation might be improper, and
because we can discern no such impropriety ourselves, Question 2 must be dismissed.
Question 3: Enforceability against successor in interest.
Question 3 of Appellant’s Statement of Questions asks: “Were the permits, as
issued, enforceable against the Owner?” By “the permits,” Appellant presumably
means the 1993 site plan approval, the 1993 zoning permit, and the 2000 approval of the
landscaping plan for the proposed planter box. As mentioned above, these final,
unappealed decisions are not subject to attack here, either directly or indirectly, due to
the finality rule of 24 V.S.A. § 4472(d). Appellant took the property with notice of the
site plan approved by the Planning Commission in 2000, because that site plan was
recorded in the Town Land Records, as shown in Town’s Exhibit J. Those recordings
provide clear notice that there were conditions attached to the site plan approval. The
first condition attached to the 2000 site plan approval required that the “project shall be
completed, operated and maintained in accordance with the plans and information on
file with the Town,” including the prior conditions from the original 1993 approval that
the asphalt under the proposed planter box be removed. Further, the Planning
Commission Decision expressly stated that the conditions of approval “shall run with
the land.” See footnote 1, supra.
In the absence of any argument as to why the 1993 site plan approval, the 1993
zoning permit, and the 2000 site plan approval should not be enforceable against
Appellant, Question 3 of Appellant’s Statement of Questions must be dismissed.
6 Question 4: Town’s authority to act.
Question 4 of Appellant’s Statement of Questions asks: “Did the Town
commissions, boards and officers exceed their legal authority in this matter?” There is
no factual representation offered here to indicate that any official or board exceeded
their authority here. Appellant states in its affidavit that “the Town’s actions, and more
particularly the Town’s failure to act, for a period of more than ten years should
constitute conduct which bars the Town from enforcing a 1993 condition.”
Under both the former 24 V.S.A. § 4496(a) and the current 24 V.S.A. § 4454(a), the
statutory limitation period for bringing an enforcement action is fifteen years. The
Town therefore had until 2008 to initiate an enforcement action regarding Appellant’s
failure to comply with the 1993 condition, and until 2015 to bring an enforcement action
regarding Appellant’s failure to comply with the conditions of the 2000 site plan
approval. Therefore, the Zoning Administrator acted within her authority in issuing
the notice of violation. As there is no factual representation that any official or board
exceeded their authority, Question 4 of Appellant’s Statement of Questions must be
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that the Town’s Motion for Summary Judgment is GRANTED as to all issues raised by
Appellant’s Statement of Questions, thereby warranting dismissal of this appeal. The
Zoning Administrator’s January 6, 2004 Notice of Violation is upheld. This decision
concludes the pending appeal.
Done at Berlin, Vermont, this 26th day of May, 2006.
__________________________________________ Thomas S. Durkin, Environmental Judge