STATE OF VERMONT
ENVIRONMENTAL COURT
} Nowicki Building Permit } Docket No. 77‐4‐05 Vtec; (Appeal of Nowicki); } **************************************** } **************************************** } Richards v. Dechert, et al.; and } Docket No. 156‐8‐05 Vtec; and } **************************************** } **************************************** } Nowicki NOV Appeal } Docket No. 220‐10‐05 Vtec (Appeal by Richards) } }
Decisions on Pending Motions
There are three actions now pending in this Court involving one common
question concerning the residential development of a parcel of land in the Town of
Norwich (Town). These appeals represent the Court’s third opportunity to resolve
litigation between the developer and his neighbor, Appellee Stuart L. Richards. This
Decision is intended to address all motions pending in all three cases, as well as legal
issues that are ripe for resolution at this stage of each proceeding.
In all three pending dockets, Appellant Paul Nowicki (hereinafter Developer) is
represented by Gerald R. Tarrant, Esq.; Appellee Stuart Richards, joined by his wife
Miriam in Docket No. 156‐8‐05 Vtec (hereinafter referred to individually and
collectively as Neighbor), are represented by John D. Hansen, Esq. In Docket No. 156‐8‐
05 Vtec, the Town and Zoning Administrator Philip Dechert are represented jointly by
Frank H. Olmstead, Esq. and James F. Carroll, Esq.
Docket No. 77‐4‐05 Vtec concerns an appeal filed by Developer from a decision
of the Town of Norwich Development Review Board (DRB), denying his application for
1 an after‐the‐fact zoning permit to construct a single‐family dwelling at 84 Elm Street.
The second matter, Docket No. 156‐8‐05 Vtec, is best described as a private enforcement
action initiated by Neighbor against Developer, the Town and the Town Zoning
Administrator. The third and last pending docket is an appeal by Neighbor from the
Zoning Administrator’s decision not to initiate an enforcement action against
Developer, which was upheld by the DRB in its Decision of October 17, 2005.
We first focus our analysis on the first appeal (Docket No. 77‐4‐05 Vtec) because
the outcome of that appeal is determinative of the issues raised in the other two
pending dockets.
In the first appeal, Neighbor and Developer have filed cross‐motions for
summary judgment and replies to those motions. Each party seeks a resolution, in their
respective favor, on all issues raised by Developer’s Statement of Questions, which may
be summarized as follows:
1. Do recent changes in 24 V.S.A. Ch. 117 allow this Court to issue an after‐the‐ fact zoning permit for the construction of a single‐family dwelling on 84 Elm Street? 2. Which law controls when a developer applies for a permit for an already‐ built structure: the law in effect at the time of construction or the law in effect when a completed zoning application is filed? 3. Does 24 V.S.A. § 4412(2) (2005) remove restrictive language in the former 24 V.S.A. § 4406(1) (2003), requiring the merger of contiguous existing small lots in unified ownership? Further, does 24 V.S.A. § 4412(2) now allow municipalities to adopt or maintain bylaws that are more permissive of the development of existing small lots? 4. Are the Town of Norwich Zoning Regulations (Regulations) now in effect consistent with 24 V.S.A. § 4412(2)? and 5. Does Developer’s previously completed construction conform to all currently applicable zoning requirements, so as to render issuance of a zoning permit proper?
2 Factual Background
For purposes of our analysis of each party’s motions, we note that any facts in
dispute are viewed in a light most favorable to the non‐moving party. Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44, 48 (1990). Most of the facts that are material to the pending
appeals are not in dispute. The parties’ disputes center for the most part on the
interpretation of the applicable legal standards. The material facts, including those that
we must view in a light most favorable to the non‐moving party, are as follows:
1. In 1996, Developer purchased two adjoining lots at 76 and 84 Elm Street
from an individual who had held joint title to both parcels since 1967. The two lots are
separately described in a single deed by which Developer acquired title in his 1996
purchase.
2. The lot at 76 Elm Street is approximately 14,950 square feet and is known
as parcel 1. The lot at 84 Elm Street is approximately 24,000 square feet and is known as
parcel 2.
3. Both lots are in the Town’s Village Residential zoning district (VR
District). Prior to 1981, the VR District had a minimum lot size requirement of 8,000
square feet. However, when the Town adopted amendments to its Regulations in 1981,
the VR District minimum lot size requirement was increased to 20,000 square feet.
Thus, as of the 1981 zoning amendment, parcel 1 became an undersized lot that did not
then conform to the Regulations.
4. Neighbor owns and resides at the adjoining property at 82 Elm Street,
which is behind parcels 1 and 2. Neighbor accesses his lot by a twenty‐foot‐wide
private right‐of‐way that runs from Elm Street along the common border between
parcels 1 and 2. Neighbor’s home generally sits behind parcel 1.
5. Both Neighbor’s property and Developer’s parcel 2 are bounded on the
southwest by Blood Brook.
3 6. In 1997, Developer applied for and received a zoning permit to renovate
the house on parcel 1 within its existing footprint. That zoning permit was never
appealed and is now final, pursuant to 24 V.S.A. § 4472(d). Developer subsequently
sold the house on parcel 1 to a third party, who has since resold the property.
7. In September 1999, Developer first applied for a zoning permit to
construct another house on parcel 2. Neighbor appealed the Town’s issuance of that
zoning permit to this Court and then to the Vermont Supreme Court, which eventually
remanded the case to this Court. See In re Appeal of Richards, 174 Vt. 416 (2002)
(hereinafter Richards I). After the decision on remand here, Neighbor again appealed to
the Vermont Supreme Court, which issued a decision in In re Appeal of Richards, 2005
VT 23 (hereinafter Richards II), on February 5, 2005. We provide a further procedural
history of the parties’ subsequent litigation below.
8. During the pendency of litigation between Neighbor and Developer,
Developer constructed a single‐family dwelling on parcel 2 in 1999‐2000 without first
obtaining a final determination as to the validity of the zoning permit for that house.
9. While the appeal of Developer’s first permit application for parcel 2 was
still pending, the Vermont zoning enabling statute relating to existing small lots was
revised and recodified at 24 V.S.A. § 4412(2), effective July 1, 2004.
10. Conscious of the amendments to the applicable provisions of the zoning
enabling statute, Developer filed a second permit application for a house on parcel 2 on
January 5, 2005.
11. In his 2005 application, Developer seeks permit approval for the
previously constructed “L‐shaped” single‐family residence on parcel 2. This two‐story,
56′ x 40′ house has a front setback of seventy feet, a rear setback of twenty‐six feet, a
right side setback of forty‐eight feet, a left side setback of sixty feet, and is twenty‐three
feet high. Attached to the northeasterly end of the house on parcel 2 is a garage that is
accessed from the twenty‐foot‐wide right‐of‐way also serving Neighbor’s house.
4 12. Developer’s second zoning permit application was approved by the Town
Zoning Administrator on January 18, 2005. Neighbor appealed that approval to the
DRB, which granted his appeal and overturned the permit approval by its Decision on
April 1, 2005. Developer filed his notice of appeal of the DRB’s denial with this Court
on April 15, 2005.
13. Subsequent to both the DRB’s denial of Developer’s second permit
application and Developer’s appeal of that decision, Neighbor filed a complaint in this
Court on August 1, 2005, against Developer, the Town and the Town’s Zoning
Administrator, Philip Dechert.1 This complaint is the subject of Docket No. 156‐8‐05
Vtec. By this action, Neighbor seeks enforcement of Developer’s alleged violation of the
Zoning Regulations for constructing a house on parcel 2 without a valid zoning permit.
14. All defendants named in the complaint in Docket No. 156‐8‐05 Vtec have
moved for dismissal of that action. We address these motions below.
15. It appears that, since the conclusion of the proceedings before the Supreme
Court in Richards I and Richards II, Neighbor has been attempting to convince the
Zoning Administrator to initiate an enforcement action against Developer. By letter
dated June 16, 2005, the Zoning Administrator advised that he did not agree “that
[Developer] is [now] in violation of the zoning regulations” in light of his approval of
Developer’s 2005 permit and the appeal pending in regards to that permit application in
Docket No. 77‐4‐05 Vtec. A copy of the Zoning Administrator’s June 16, 2005 letter was
attached to Developer’s Motion to Dismiss in Docket No. 156‐8‐05 Vtec as Attachment 8.
16. Because Neighbor regarded the Zoning Administrator’s June 16, 2005
letter as a final determination, he appealed the decision not to pursue an enforcement
action to the DRB. By Decision dated October 17, 2005, the DRB denied Neighbor’s
1 An interested person, as defined in 24 V.S.A. § 4465(b), may bring an action in this Court to enforce a decision from an appropriate municipal panel, such as the DRB in this case. See 24 V.S.A. § 4470(b). Section 4470(b) authorizes the action to be in the form of a “mandamus, injunction, process of contempt, or otherwise.” Id.
5 appeal, effectively affirming the Zoning Administrator’s determination that an
enforcement action by the Town was not warranted at that time. Neighbor thereafter
appealed the DRB’s decision to this Court. That appeal is the subject of Docket No. 220‐
10‐05 Vtec.
Procedural Background
Whenever parties in a specific dispute appear on multiple occasions before the
trial court and our Supreme Court, the procedural history of the cases requires careful
recitation. Such is the case here. We find that the following procedural history is
relevant to our consideration of the pending dockets:
1. In Richards I, the Supreme Court determined that because Developer’s
parcel 1 did not meet the 20,000 square‐foot minimum lot size for the Village
Residential zoning district, Developer could not develop parcel 2 independent of the
already developed parcel 1. Richards I, 174 Vt. at 420–21. The Court found that
Regulations § 8, allowing the development of certain lots not meeting the applicable
minimum lot size, conflicted with and was therefore superseded by the provision in the
Vermont zoning enabling statute relating to existing small lots, which at that time was
codified in the former 24 V.S.A. § 4406(1) (2003). Richards I, 174 Vt. at 421–23.
2. The Court also found in Richards I that Developer had a valid septic
permit for parcel 2, which was issued under the Town’s septic ordinances and was the
subject of an earlier Supreme Court decision in Richards v. Nowicki, 172 Vt. 142, 151
(2001). Richards I, 174 Vt. at 425. The Court concluded in Richards I that, as of 1996
when Developer purchased his property, parcels 1 and 2 had already merged by
operation of law under the language of 24 V.S.A. § 4406(1) when the Town adopted the
20,000‐square‐foot minimum lot size in 1981. The Court determined that there was a
remaining question of whether the right‐of‐way separating parcel 1 and parcel 2
prevented the merger that otherwise took place in 1981, and therefore remanded the
appeal of Developer’s first zoning permit application to the Environmental Court for
6 the specific purpose of determining whether the right‐of‐way “because of location and
function” separated parcels 1 and 2 so that they may not be used as one lot. Richards I,
174 Vt. at 426.
3. This Court rendered its decision on that remand on November 7, 2003,
finding that the present and possible future use and function of the right‐of‐way
prevented the parcels from merging. Neighbor again appealed to the Supreme Court.
4. In its February 9, 2005 Entry Order in Richards II, the Supreme Court
reversed this Court’s 2003 decision and concluded that the evidence presented lacked a
foundation for the conclusion that, as of 1981 when the Town’s 20,000 square‐foot
minimum lot size requirement was enacted, the use of the right‐of‐way effectively
separated parcel 1 and parcel 2 so as to prevent the merger of the previously separate
lots by operation of law. Thus, the Supreme Court concluded that under the provisions
of 24 V.S.A. § 4406(1) (2003) and the precedent of Wilcox v. Vill. of Manchester Zoning
Bd. of Adjustment, 159 Vt. 193 (1992), parcels 1 and 2 merged in 1981 by operation of
law to form a single conforming lot, thereby preventing the development of a second
single‐family residence on parcel 2—the lot at 84 Elm Street. Richards II, 2005 VT 23,
¶ 12.
5. Prior to the Supreme Court’s Decision in Richards II, Developer filed his
second application for a zoning permit on January 5, 2005, now the subject of pending
Docket No. 77‐4‐05 Vtec.
Discussion
I. Res judicata
At the outset, we address Neighbor’s argument that this Court does not have
jurisdiction over the first appeal, based on the principals of res judicata, in light of the
Supreme Court’s decision to deny Developer’s zoning permit in Richards II. While
Neighbor is correct that the parties and property in Docket No. 77‐4‐05 Vtec are
identical to those in Richards I and Richards II, we note that the statute central to the
7 Supreme Court’s holdings in Richards I and Richards II, the former 24 V.S.A. § 4406(1)
(2003), is no longer in effect. Thus, the pending appeal is not barred by the doctrine of
res judicata.
The doctrine of res judicata “bars the litigation of a claim or defense if there
exists a final judgment in former litigation in which the ‘parties, subject matter and
causes of action are identical or substantially identical.’” Berlin Convalescent Ctr. v.
Stoneman, 159 Vt. 53, 56 (1992) (quoting Berisha v. Hardy, 144 Vt. 136, 138 (1984)). In
this instance, Developer’s action is not barred by the doctrine of res judicata because the
cause of action in this appeal involves the interpretation of Vermont’s new existing
small lot statute, 24 V.S.A. § 4412(2) (2005), as opposed to the former existing small lot
statute upon which the Supreme Court based its decision in Richards I and Richards II.
We are directed to apply the law in effect when a complete application is filed.
In re Champlain Oil Company, 2004 VT 44, ¶ 8 (citing Smith v. Winhall Planning
Commission, 140 Vt. 178, 181‐82 (1981)).2 Developer filed his present application for a
zoning permit on January 5, 2005, after the effective date of the statutory changes to the
Vermont Planning and Development Act. See 2003, No. 115 (Adj. Sess.), § 119(a), as
corrected by 2003, No. 122 (Adj. Sess.), § 296(1)(a)(2) (stating that the changes pertaining
to local planning and bylaws, including 24 V.S.A. § 4412(2) shall take effect July 1, 2004).
Thus, following the Supreme Court’s line of analysis in Richards I, 174 Vt. at 418–19, we
must determine whether 24 V.S.A. § 4412(2), the new statutory provision regulating the
development of existing small lots, authorizes this Court to treat parcel 1 as an existing
small lot, which would then allow Developer to develop parcel 2 as a separate,
conforming lot.
2 The facts in Champlain Oil and Smith are slightly different than the application here, in that they involved an amendment to the zoning regulations initiated while a permit application was pending. Neighbor here has not cited us to precedent with a fact pattern identical to the pending appeal (i.e.: change in zoning law occurred after construction was completed, but before a permit application was submitted). We believe the Champlain Oil and Smith precedents are most applicable and therefore employ them here.
8 II. Definitions of existing small lots
It is undisputed that the Zoning Regulation amendments in 1981 increased the
minimum lot size to 20,000 square feet for the VR District. At that time, parcel 1
consisted of 14,950 square feet and thus did not conform to the Regulations. As our
Supreme Court held in Richards I, because Developer owned both nonconforming
parcel 1 and the adjoining undeveloped parcel 2, the two lots merged by operation of
law for the purposes of zoning, pursuant to the language of 24 V.S.A. § 4406(1).
Richards I, 174 Vt. at 421.
The Supreme Court’s ruling that parcels 1 and 2 had merged as of the zoning
amendment in 1981, preventing the independent development of parcel 2, was based on
the Court’s conclusion that the Town’s provision allowing for development of existing
small lots, Zoning Regulations § 8, was “more permissive than the state statute,”
Richards I, 174 Vt. at 422. The Court found that § 8 failed to conform to the state statute,
and interpreted that statute as limiting a municipality’s control over the development of
undersized lots. Richards I, 174 Vt. at 424.
In ruling that § 8 was invalid, the Court specifically found that 24 V.S.A.
§ 4406(1) embodied one of the central purposes of the state zoning statute—the
elimination of nonforming uses. Richards I, 174 Vt. at 424. The Court specifically noted
that:
Where our Legislature has spoken clearly about the circumstances under which existing small lots may be developed, we will not give effect to a municipal ordinance that would allow development under more expansive circumstances. The municipality has no authority to overrule the clear intent of the Legislature.
Id. at 424–425 (citation omitted). See also In re McCormick Mgmt. Co., 149 Vt. 585, 589–
90 (1988) (a goal of zoning is to eliminate nonconforming uses).
9 We are now faced with the task of interpreting the new enabling statute relating
to undersized lots, 24 V.S.A. § 4412(2).3 When construing statutes, our primary goal is
to give effect to the Legislatureʹs intent. Herrick v. Town of Marlboro, 173 Vt. 170, 173
(2001). The definitive source of legislative intent is the statutory language, by which we
are bound unless it is uncertain or unclear. Id.
At first glance, the task of comparing the former statute, 24 V.S.A. § 4406(1), with
the now applicable statute, 24 V.S.A. § 4412(2), appears straightforward. Subsection (C)
was added to the new statute, which states in its entirety that “Nothing in this
subdivision (2) shall be construed to prohibit a bylaw that is less restrictive of
development of existing small lots.” The directness of this language suggests that a
3 The applicable provisions of 24 V.S.A. § 4412 are as follows: Notwithstanding any existing bylaw, the following land development provisions shall apply in every municipality: . . . . . (2) Existing small lots. Any lot that is legally subdivided, is in individual and separate and nonaffiliated ownership from surrounding properties, and is in existence on the date of enactment of any bylaw, including an interim bylaw, may be developed for the purposes permitted in the district in which it is located, even though the small lot no longer conforms to minimum lot size requirements of the new bylaw or interim bylaw. (A) A municipality may prohibit development of a lot if either of the following applies: (i) the lot is less than one‐eighth acre in area; or (ii) the lot has a width or depth dimension of less than 40 feet. (B) The bylaw may provide that if an existing small lot subsequently comes under common ownership with one or more contiguous lots, the nonconforming lot shall be deemed merged with the contiguous lot. However, a nonconforming lot shall not be deemed merged and may be separately conveyed if all the following apply: (i) The lots are conveyed in their preexisting, nonconforming configuration. (ii) On the effective date of any bylaw, each lot was developed with a water supply and wastewater disposal system. (iii) At the time of transfer, each water supply and wastewater system is functioning in an acceptable manner. (iv) The deeds of conveyance create appropriate easements on both lots for replacement of one or more wastewater systems, potable water systems, or both, in case there is a failed system or failed supply as defined in 10 V.S.A. chapter 64. (C) Nothing in this subdivision (2) shall be construed to prohibit a bylaw that is less restrictive of development of existing small lots.
10 Vermont municipality, such as the town here, could maintain an ordinance more
permissive than the state statute. However, one must read the statute in its entirety
before arriving at a conclusion. Davis v. Hunt, 167 Vt. 263, 267 (1997) (in construing a
statute we look to its entirety and attempt to harmonize its constituent parts).
The meaning of the phrase “existing small lots” in subsection (C) can be found in
the prior language of that very statutory section. The first provision of 24 V.S.A.
§ 4412(2) is titled “Existing small lots” and is followed by definitional language. See
supra note 3. Thus, subsection (C) authorizes a municipality to maintain regulations
less restrictive of development of parcels that qualify as “existing small lots,” as that
term is defined by 24 V.S.A. § 4412(2). In light of the Legislature’s decision to employ
the phrase “existing small lots” in subsection (C), we conclude the facts here do not
allow for the independent development of lots, such as parcel 2, that do not qualify
under this defined term.
This case causes some to recall the familiar maxim that hard cases make bad law.
Such may true here. First, our analysis does not focus upon the conformity of parcel 2
with the applicable lot size requirements. It is undisputed that parcel 2, if it were
regarded as a separate lot, conforms to the applicable minimum lot size. But the parcel
with which it was once held in common, parcel 1, did not conform to the 20,000 square‐
foot minimum lot size requirement when enacted in 1981, and did not conform to those
requirements when parcel 1 was separately sold to a third party. Further, the concept of
merger by operation of law, also known as “silent merger” or “secret merger”—terms
that were used more frequently after the Richards I decision—is sometimes viewed
with contempt because it occurs without any action by or to the property owner, and
some would say without any direct notice to the property owner. Nonetheless, we are
required to apply the applicable law as written, and will now attempt to fulfill that
responsibility.
11 Subsection (C) allows municipalities to be more permissive of development of
“existing small lots.” To qualify as such, 24 V.S.A. § 4412(2) places two requirements on
a parcel: it must be (1) “legally subdivided . . . [(2)] in individual and separate and
nonaffiliated ownership from surrounding properties, and [(3)] is in existence on the
date of enactment of any bylaw . . . .” It is undisputed that just before the Town
increased the minimum lot size in the VR District to 20,000 square feet, parcels 1 and 2
existed as separate lots and conformed to the prior 8,000 square‐foot minimum lot size
requirement.4
But it is also undisputed that as of the 1981 zoning revisions, parcel 1, which had
then become nonconforming, was held in common with parcel 2. The consequence of
this joint ownership is that the two lots merged, thereby negating the nonconformity of
lot 1. Richards I at 420–21. Unfortunately, the two merged lots could not be
reconfigured so as to eliminate the nonconformity because their total size, 38,950 square
feet, was less than required to establish two conforming lots under the amended
Regulation (40,000 square feet).
We recognize the general consensus, emphasized by Developer, that § 4412(2) is
more permissive than the former § 4406(1). Developer supplied the Court with some
rather extensive materials on the legislative history of Act 115, of which the revisions to
the existing small lot exemptions were a part. But before we can look to legislative
history, we must first determine that the specific language of a statute is unclear. “If the
statute [to be interpreted] is unambiguous and its words have plain meaning, we accept
the statute’s plain meaning as the intent of the Legislature and our inquiry proceeds no
further.” Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14 (citing Town of Killington v. State,
172 Vt. 182, 188 (2001)).
4 Because our analysis here does not reach the merits of the pending enforcement action, we need not address Neighbors’ suggestion that because the Supreme Court previously ruled that parcels 1 and 2 had merged as of 1981, Developer’s subsequent conveyance of parcel 1 should be viewed as an illegal subdivision.
12 The very language of § 4412(2) that is at issue here is identical to the language in
the former § 4406(1): both provisions define an “existing small lot” as one that existed
in a conforming manner, prior to the applicable bylaw or its revision, “in individual and
separate and nonaffiliated ownership from surrounding properties . . . .” Thus, we have
little trouble interpreting the plain language of this section of the new statute in light of
the Supreme Court’s tremendous focus on that language in their Richards I decision.
We find it impossible to conclude that our Legislature intended to effect a change in the
definition of “existing small lots” when both the new and old statutes employ identical
language to define that phrase.
Developer asserts that the Legislature intended to allow municipalities to be the
entity charged with determining whether parcels that do not conform to the statutory
definition of “existing small lots” should be developed in their communities. As
admirable and advisable as this proposition is, we cannot see how subsection (C), as
currently worded, can be interpreted as allowing any parcels other than those that
qualify as existing small lots to be developed more permissively. Our conclusion here is
reinforced by our understanding that the Legislature could have chosen to omit or use a
phrase other than “existing small lots” in subsection (C), or could have specifically
excluded the phrase “in individual and separate and nonaffiliated ownership” from the
first sentence of § 4412(2). We may find it confusing as to why the Legislature would
not engage in such alternate draftsmanship, particularly in light of the outcry
surrounding the Richards I decision, but we find no confusion in the language chosen
by the Legislature.
Where statutory language that has been construed by the courts is then used
again by the Legislature, “the Legislature is presumed to have been familiar with their
construction, and to have adopted it as a part of the law, unless it expressly provided
for a different construction.” Russell v. Lund, 114 Vt. 16, 22 (1944) (citing In re Estate of
Woolley, 96 Vt. 60, 64 (1922); Brace v. Hulett, 109 Vt. 360, 366 (1938)). See also
13 Ratepayers Coalition of Rochester v. Rochester Elec. and Power Co., 153 Vt. 327, 330
(1989).
To qualify as an existing small lot, parcel 1 would have had to have been “in
individual and separate and nonaffiliated ownership from surrounding properties” at
the time it became nonconforming by operation of the 1981 zoning amendment, in
order to conform to 24 V.S.A. § 4412(2). Because parcel 1 does not meet the definition of
“existing small lot,” it cannot qualify for the small lot exception, even under the new
statute. Its failure to qualify ultimately brings about the same result as in the Richards I
case: parcels 1 and 2 are deemed to have merged by operation of § 4412(2) for purposes
of development.
Developer also urges this Court to focus on the new language and changes in
language to the provisions now found in § 4412(2)(B), including that the reference to
“merger” has been dropped from the language found in the former § 4406(1)(A). We do
not find these changes applicable here, because those provisions pertain to lots that
were held separately, were or became nonconforming as to the applicable minimum lot
size requirements, and then “subsequently c[ame] under common ownership . . . .”5
There is no suggestion in the record that parcel 1 or 2 were ever held independent of
each other since 1967, including when the lot size amendment went into effect in 1981,
when Developer purchased the properties jointly in a single deed6 in 1996, and until
Developer conveyed the undersized parcel 1 to a third party.
Moreover, no suggestion has been made that Act 115 changed or nullified the
well‐established principle of zoning law that nonconformities are “allowed only
because the use preexists the applicable zoning requirement. A goal of zoning is to
phase out such uses.” Drumheller v. Shelburne Zoning Board of Adjustment, 155 Vt.
524, 529 (1990). The Act provided, in part, that all municipal zoning provisions contain
5 Language used in both § 4412(2)(B) and the former § 4406(1)(A). 6 There is no suggestion that lots merge by the mere fact that they are conveyed in a single deed.
14 the language of 24 V.S.A. § 4412(2), which allows for the development of undersized
lots, provided that they were held “in individual and separate and nonaffiliated
ownership from surrounding properties” when they no longer satisfied the applicable
minimum lot size.
Parcel 1 did not qualify as an existing small lot when held by Developer; its
failure to qualify as an existing small lot under § 4412(2) results in its merger by
operation of law with parcel 2 for development purposes. The consequence of this
merger is that the separate development of parcel 2 is prohibited by § 10.1.3 of the
Zoning Regulations, which forbids more than one residential use per lot. Thus, we
must grant Neighbor summary judgment in the first appeal, as the applicable law does
not allow for the independent development of parcel 2, even when all facts are viewed
in a light most favorable to Developer.
III. Enforcement Action
Our analysis now moves on to the pending enforcement action in Docket No.
156‐8‐05 Vtec. Neighbor filed his complaint on August 1, 2005, against Developer, the
Town and its Zoning Administrator seeking enforcement of a zoning violation and
requesting an injunction, compensatory and punitive damages, penalties, attorneys’
fees and an order regarding Developer’s alleged violation of the Regulations by
constructing a single‐family dwelling on parcel 2 without a zoning permit. Neighbor
filed his complaint because the Zoning Administrator refused to commence an
enforcement action against Developer, based on the Supreme Court’s previous
decisions in Richards I and Richards II in which the Court decided that Developer could
not construct a house on parcel 2 because parcel 1 and parcel 2 had merged by
operation of law under the former provisions of 24 V.S.A. § 4406(1).
On April 29, 2005, Neighbor wrote a letter to the Zoning Administrator
requesting that the Town commence an enforcement action against Developer. The
Zoning Administrator responded to Neighbor’s request on June 16, 2005, at which time
15 he refused to commence an enforcement action because Developer was in the process of
obtaining zoning approval of the house—the subject of Docket No. 77‐4‐05 Vtec.
Neighbor then appealed the Zoning Administrator’s determination that no enforcement
action was warranted on June 29, 2005, but received no response from the DRB within a
month. Neighbor then filed his complaint here on August 1, 2005, with the intention of
preserving his rights to argue that an enforcement action was warranted.
Defendants have moved to dismiss Neighbor’s complaint for failure to state a
claim upon which relief can be granted. See V.R.C.P. 12(b)(6). “When reviewing the
disposition of a Rule 12(b)(6) motion to dismiss, this Court assumes that all factual
allegations pleaded in the complaint are true. We accept as true all reasonable
inferences that may be derived from plaintiffʹs pleadings and assume that all
contravening assertions in defendantʹs pleadings are false.” Richards v. Town of
Norwich, 169 Vt. 44, 48–49 (1999) (internal citations omitted).
Developer Nowicki requested in his dismissal motion that the Court award
reimbursement of his attorneys’ fees incurred while defending this enforcement action.
Vermont adheres to the American Rule with respect to the award of attorneys’ fees.
Robes v. Town of Hartford, 161 Vt. 187, 198 (1993). “The American Rule ordinarily
prohibits an award of attorney’s fees absent a specific statutory provision or an
agreement of the parties.” Galkin v. Town of Chester, 168 Vt. 82, 91 (1998). In this
instance, no such agreement exists. We are also not aware of any statutory provision
which would permit an award of attorney’s fees to a defendant in a zoning enforcement
action, absent a showing of bad faith. We are not aware of any factual foundation of
such bad faith on the part of Neighbor that might lead us to award Developer a
reimbursement of his attorneys’ fees. See Agency of Nat’l Res. v. Lyndonville Sav. Bank
& Trust Co., 174 Vt. 498, 501 (2002) (describing the exception to the American Rule for
bad faith conduct of litigants). Accordingly, we decline to award attorneys’ fees to
Developer.
16 In light of our decision above that Developer is not entitled to an after‐the‐fact
permit for parcel 2, we are not inclined to dismiss Neighbor’s enforcement action.
Furthermore, we note that in light of Developer’s decision to build a single‐family
dwelling on parcel 2 during the pendency of the previous litigation, and in light of
Developer’s sale of parcel 1, issues remain in this enforcement action, including possible
liability, that are not solely dependent upon the outcome of the permit appeal just
decided in Docket No. 77‐4‐05 Vtec. We will therefore allow the enforcement action to
proceed to a hearing on the merits.
IV. Neighbor’s appeal of the Zoning Administrator’s decision not to issue a Notice of Violation (Docket No. 220‐10‐05 Vtec)
Lastly, we turn our analysis to Neighbor’s appeal of the DRB’s decision to
uphold the Zoning Administrator’s determination that an enforcement action should
not be initiated. Our analysis here is made more straightforward by our determination
above that Neighbor’s enforcement action in the prior docket should not be dismissed.
We agree with the suggestion made in Neighbor’s memorandum in response to the
Town’s motion to dismiss that this appeal and the pending enforcement action “could
conceivably be consolidated.” However, in light of our determination that the
enforcement action should survive, we believe that the issues raised in this appeal are
subsumed into the enforcement action. Stated differently, we envision no rights,
liabilities or defenses in this appeal that cannot be maintained in the pending
enforcement action. In the interests of judicial economy and to limit overlapping
litigation, we shall dismiss Docket No. 220‐10‐05 Vtec.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Neighbor’s cross‐motion for summary judgment in Docket No. 77‐4‐05 Vtec is
GRANTED, as Developer’s zoning permit application cannot be granted under any
factual scenario, in light of the determination that 24 V.S.A. § 4412(2) does not afford a
17 small lot exemption to the nonconforming parcel 1, thereby effecting a merger of parcel
1 and 2 by operation of law. Developer’s cross‐motion for summary judgment in
Docket No. 77‐4‐05 Vtec is DENIED for the same reasons.
In Docket No. 156‐8‐05 Vtec, the motions to dismiss filed by Developer, the
Town, and Zoning Administrator Dechert are hereby DENIED. Neighbor Richards is
entitled to maintain the pending enforcement action as to Developer’s past and present
violations of the Norwich Regulations, as modified by the past and present small lot
exemption statutes. Developer’s request for reimbursement of his attorneys’ fees in
Docket No. 156‐8‐05 Vtec is also DENIED because the American Rule does not provide
for reimbursement of attorneys’ fees, absent bad faith, statutory authority, or an
agreement of the parties regarding payment of attorneys’ fees.
Lastly, the appeal in Docket No. 220‐10‐05 Vtec is hereby DISMISSED for
reasons of judicial economy. Any rights, liabilities or defenses which could have been
asserted in that appeal may be asserted in the enforcement action that remains pending
in Docket No. 156‐8‐05 Vtec.
The parties are directed to prepare for a hearing on the merits in the pending
enforcement action. The Court recognizes that this action raises some unique issues,
not the least of which is the fact that the prosecuting entity is a private party and not the
municipality. Nonetheless, such private enforcement actions are permitted under 24
V.S.A. § 4470(b). The parties are directed to file any remaining pre‐trial motions,
including those relating to discovery, standard of review or burden of proof, on or
before Friday, July 7, 2006. The Court will thereafter schedule this matter for a merits
hearing.
Done at Berlin, Vermont, this 8th day of June, 2006.
Thomas S. Durkin, Environmental Judge