Town of Calais v. Noordsij

• Court: Vermont Superior Court
• Decided: August 28, 2008
• Docket: 142-06-06 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} Town of Calais, } Plaintiff, } } v. } Docket No. 142-6-06 Vtec } Barbara Noordsij, } Defendant. } }

Decision and Order

The Town of Calais brought an enforcement action against Defendant Barbara

Noordsij, asserting violations of the conditions of her zoning permit for the construction of

a barn. The Town is represented by Joseph McLean, Esq.; Defendant is represented by

David Blythe, Esq.

After certain issues were resolved by summary judgment, an evidentiary hearing

was held in this matter before Merideth Wright, Environmental Judge. The parties were

given the opportunity to submit written memoranda and requests for findings. Upon

consideration of the evidence and of the written memoranda and requests for findings filed

by the parties, the Court finds and concludes as follows.

Defendant owns a 6.7-acre parcel of property at 8598 County Road in the Town of

Calais, in the Rural Residential zoning district. Prior to the construction at issue in the

present enforcement case, the property was improved with a single-family house and with

a detached garage, itself having an attached shed.

In August of 2005, Defendant applied for a zoning permit to construct a 20' x 30'

1 prefabricated metal structure for use as a horse barn, oriented diagonally to the road. The

building was designed with its vertical posts supported on concrete piers, and otherwise to

have a dirt floor, and to be furnished with sliding barn doors. The permit application

stated that the “building is engineered by Rockford Steel Building Systems” and that it was

“to be built by local builder.”

The application included a sketch plan showing the nearest corner of the barn to be

48 feet from the centerline of County Road. The Court does not find it to be credible that

the version of the document showing the number “48” as having been written over to read

“40” was the document submitted as the application and later approved by the zoning

administrator. Defendant’s signature on the application certified that “the information

submitted in this application regarding the property is true, accurate and complete” and

that she understood “that any permit will be issued in reliance on the above

representations and will be automatically void if any are untrue or incorrect.”

The then-newly-appointed Zoning Administrator issued the zoning permit

authorizing the construction of the barn as shown on the application, with a front setback

of 48 feet from the centerline of County Road.

As discussed in the summary judgment decision, the setback actually required for

Defendant’s property is 65 feet, because it is located along the County Road south of the

Maple Corner village zoning district. Land Use Regulations, Table 2.2(E). Generally within

the Town of Calais the required front setback is 40 feet,1 except along the rights-of-way of

1 Defendant asserts that she believed that the required setback was 40 feet. This belief was not reasonable and does not rise to an estoppel, as discussed in the summary judgment decision in the present case. At best, Defendant’s belief could only have resulted from an inquiry she may have made by telephone to the Town Clerk, who had formerly served also for thirty-five years as the Zoning Administrator, without specifying the location of the property as being on the County Road, because at all times material to these events, the Town Clerk believed that the required setback on the County Road was 100 feet, and was

2 three specific roadways, including along County Road (State Aid Highway #1) in the

location of Defendant=s property. Regulations, Table 2.2(E). Prior to the 2005 amended

regulations the setback along the County Road had been 100 feet from the centerline.

In mid-September of 2005, Defendant obtained an estimate of $16,763.62 from

Shelter Construction, a local building firm, for the pre-engineered steel building. The

estimate included $10,363.62 for the building=s materials, including Vermont sales tax, plus

$500 for the concrete for the footings. The estimate included $3,600 as labor costs for the

footings and erection of the building, and $300 for rental of a forklift. The estimate also

included $2,000 for leveling the area and digging five-foot-deep holes for the concrete

footings below the leveled grade. This element of the estimate noted that “this estimate is

based on working with existing soils” and specifically provided that “cost[s] for the

removal of ledge, debris, excess soil, or providing additional soils are not included.”

Defendant and the contractor had discussed the issue of ledge outcroppings, and

Defendant knew that it would be an additional cost to deal with ledge.

The prefabricated building materials were delivered to the property between

November 29 and December 1, 2005. The warranty on the building contained a condition

that the building materials must be kept dry. The excavation for the footings began on

November 30, and the concrete footings were poured on December 1, 2005. The contractor

stacked the steel framing members, beams, wall sheathing, boxes of trim, doors and

hardware on the ground on so-called bunkers or pallets, covered by tarps. The contractor

unaware that it had been reduced to 65 feet. If the Town Clerk had been asked by telephone about setbacks on the County Road, she would have responded ‘100 feet’; if she had been asked about setbacks generally she might have responded ’40 feet.’ Even if such a conversation occurred, the Court finds it not to be reasonable for an applicant to change an approved 48 foot setback on an issued permit and to proceed to build a project at a reduced setback based on such an unattributed and unrecorded conversation, without bringing the permit in to the Zoning Administrator for an amendment.

3 began the framing work around December 19, 2005.

Before the contractor started work, Defendant had staked out the barn for where she

thought it should be. Even that original staked location was closer than the permitted 48

feet from the centerline of the County Road. Before the footings were poured Defendant

and the contractor agreed to move the location of the footings a few feet from their staked

position in order to avoid ledge and avoid the need for blasting. The building’s footings

were in fact located so that the nearest corner was set back only 41½ feet from the

centerline of the County Road, in violation of the zoning permit. If Defendant had shown

the contractor her zoning permit, or had staked out the building in compliance with the

zoning permit, this enforcement action would not have been necessary.

The avoided cost of blasting at that time, prior to construction, was at least $2,500.

After the Zoning Administrator noticed construction equipment on Defendant’s

property in mid-December, she checked her records to determine whether a zoning permit

had been issued for the property. She realized that she had made a mistake in the permit;

that is, that the setback should have been 65 feet rather than the 48 feet that she had

approved in the permit. Prior rulings in this matter have established that Defendant was

entitled therefore to the benefit of the 48-foot-setback due to the error of the Zoning

Administrator.

The Zoning Administrator notified Defendant orally on December 20, 2005 that

construction appeared to be in violation of the permit and that continuing with

construction might be unwise. The Court is persuaded that this oral notification did in fact

occur, at least in part due to the vehemence of Defendant’s oral response to the Zoning

However, Defendant did not order her contractor to stop construction on December

20, 2005. The contractor would have stopped work if Defendant had told him to do so.

Defendant and her contractor were concerned about the elements of the warranty on the

4 prefabricated building that depended on keeping the materials protected from moisture,

however, the materials were stored in a way that was not well-protected from moisture on

the job site. Defendant and her contractor could have arranged to move the materials to a

protected storage location, but did not do so.

If Defendant had stopped construction on December 20, 2005, the Town would not

have incurred significant costs in attorney’s fees and the time of the Zoning Administrator

in pursuing this enforcement action.

The written Notice of Violation directing Defendant to stop construction was issued

the following day, December 21, 2005. As of midday on December 21, 2005, not only had

the concrete footings been installed, but the eight substantial metal uprights had been

installed and the ground-level and two intermediate levels of crosspieces of the frame of

the walls of the building had been installed and fastened together, although none of the

framing of the roof had commenced. The remainder of the prefabricated building materials

were still located on the property on the ground under tarps. The ground was covered by

snow.

As of that date, the cost of correcting the violation would have been the cost of

dismantling the partial frame and transporting the materials to storage under cover, plus

whatever blasting or other ledge removal would have been necessary to erect the

prefabricated building in the permitted location. The cost of storage was estimated by the

contractor at trial to be roughly $5,000. This estimate appears to the Court to be a low

estimate, as it has to cover eighteen or nineteen months rental of a storage location

protected from the elements, as well as the transportation of the materials in both

directions, and the labor of any dismantling of the portion of the structure that had been

completed as of that time. No other evidence of the avoided cost of storage was presented.

Defendant did not instruct her contractor to stop work or to move the building

materials into storage. Approximately 70% of the contractor’s time expended on the

5 project was expended after December 20, 2005 through some time in February 2006. If

Defendant had stopped construction on December 21, 2005, the Town would not have

incurred significant costs in attorney’s fees and the time of the Zoning Administrator in

pursuing this enforcement action.

In Defendant=s appeal of the Notice of Violation, the DRB determined that, under the

doctrine of estoppel, “the town is barred from enforcing the 65' setback requirement” but

upheld the notice of violation of constructing the barn closer to the road and in a location

different from that in Defendant’s permit application. The DRB also denied Defendant’s

request for a variance. Neither Defendant nor the Town appealed the DRB decision and it

became final.

In July of 2006, Defendant obtained an estimate for moving the building to the

approved location. This estimate included lifting the building, and installing a new poured

concrete slab foundation over tamped sand and rigid insulation. The estimate was for

$16,870, which would have been a measure of the cost of bringing the property into

compliance with the originally-issued permit, that is, if the building had not received later

approval of the as-built location.

After certain legal issues were resolved, Defendant applied for approval to leave the

barn in place in its as-built location. The DRB granted that approval under § 3.8(B)(4) on

July 18, 2007. Therefore the duration of this violation was 566 days, from seven days after

the Notice of Violation, to the date of approval of the as-built location.

The cost of the Zoning Administrator’s time and expenses for this enforcement case

is $695.76. The attorney’s fees and costs expended by the Town for this enforcement case

total $23,999.16, including trial.

A civil penalty in a zoning or environmental enforcement case should be calculated

so as to make it more expensive for defendants to violate the law than to comply with it.

To fail to impose an appropriate penalty on a defendant who proceeds with a project after

6 being notified of the violation makes a mockery of the great majority of citizens who apply

for and abide by zoning permits and other municipal land use approvals. That is, a penalty

must be calculated to remove the economic benefit and the avoided costs achieved by the

Defendant from the violation, as well as to compensate the enforcement entity generally for

the legitimate costs of bringing the enforcement action, and to consider other relevant

factors. See, e.g., City of St. Albans v. Hayford, 2008 VT 36, ¶¶ 15–18, and cases discussed

therein.

By staking out and constructing the building in the violation location rather than the

permitted location, Defendant avoided the need for blasting and ledge removal that would

have been required to build in the permitted location, in the amount of approximately at

least $2,500. She also had the use of the funds that otherwise would have had to have been

expended for that purpose, over the period of the violation, calculated at the statutory 12%

over the 1.55 years of the violation, or an additional $465.

At the time of the Notice of Violation, Defendant’s avoided costs of compliance had

changed, as she wished then to obtain a permit to leave the building in place, at that time

by contesting the notice of violation and by seeking a variance. As of and from the Notice

of Violation, her avoided costs of compliance may be measured as the cost of properly

storing the building materials, most of which had not then yet been installed, so as not to

void the manufacturer’s warranty, including the cost of any dismantling and transportation

of the materials to a suitable storage location, and storage for the 566 day duration of the

violation, and transportation back to the job site. This amount is estimated to be $5,000,

plus $930 representing 12% per year over the 1.55 years of the violation. As noted above,

this estimate appears to be low; however, the Town did not present any more specific

evidence supporting any greater amount.

The Town argues that the appropriate penalty should include both the avoided cost

of blasting/ledge removal (that is, the cost of putting the building in the right place to begin

7 with) and the avoided cost of transportation and storage of the building materials (the cost

of not building it until a permit amendment would have been obtained to put it in the as-

built location). While in an enforcement case it is important for the penalty to account for

the entire benefit accruing to a defendant from the violation, the Vermont Supreme Court

in Agency of Natural Res. v. Deso, 2003 VT 36, ¶ 8, 175 Vt. 513, 515 cautioned that the

determination of economic benefit should reflect a rational business choice and not “over-

inflate the actual enjoyed benefit of noncompliance.” In the present case, a rational person

would not have done both the ledge removal (allowing construction in the right place) as

well as the construction in the wrong place that resulted in the need for the storage of the

building components. Accordingly, we will account for the avoided costs applicable to the

actual scenario before the Court (because construction in the wrong place was ultimately

allowed to remain): the dismantling and transportation of the building materials to and

from an appropriate storage location, and the rental of that storage location from December

29, 2005 through July 18, 2007.

However, this amount need not be added to the amount that will already need to be

assessed to compensate the Town. Rather, what is required in this civil penalty is that

Defendant pay an amount at least as great as it would have cost her to comply. The

compensatory amount to the Town, due to the duration of this litigation, is greater than the

penalty would have been had it been imposed as of the date on which Defendant obtained

the as-built permit. Therefore the penalty will be measured by the larger compensatory

amount to the Town.

The duration of the violation was 566 days, from December 29, 2005 (seven days

after the NOV) to the issuance of the as-built permit July 18, 2007. Given the already-

substantial magnitude of the penalty, no additional daily amount is required to provide

either specific or general deterrence.

8 Accordingly, the penalty amount is a total of $24,695 (rounded to the nearest whole

dollar), consisting of $695.76 (representing the zoning administrator’s time and costs), plus

$23,999.16 (representing the attorney’s fees and costs incurred by the town). This amount is

intended to also account for the economic benefit or avoided costs obtained by Defendant

from failing to cease the construction of the building in the then-unpermitted location

between December 29, 2005 and July 18, 2007).

Based on the foregoing, it is hereby ORDERED and ADJUDGED that the penalty

hereby imposed for the violation is a total of $24,695, assessed as a penalty of $43.63 per

day for the 566 days of violation.

Dated at Berlin, Vermont, this 29th day of August, 2008.

______________________________________ Merideth Wright Environmental Judge