In re Jewell, 98-092.
| Decision Date | 13 July 1999 |
| Docket Number | No. 98-092.,98-092. |
| Citation | 737 A.2d 897 |
| Court | Vermont Supreme Court |
| Parties | In re Appeal of Max E. JEWELL and Judith Belyea. Town of Hartford v. Max E. Jewell and Judith Belyea, d/b/a Jewell Transport and Evergreen Recycling. |
Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
The Town of Hartford appeals from an environmental court decision and two postjudgment orders, which involve an appeal by Max Jewell and Judith Belyea, permittees, from a decision of the zoning administrator of zoning violations and from the Town's enforcement action. The Town contends that the trial court erred by: (1) modifying its original decision to allow sorting of metal recyclable material outside the bunker in violation of the 1994 permit, and (2) denying the Town's request for fines. We affirm.
Permittees own property in the Town of Hartford where they operate a trucking business and a recycling business. In 1994, permittees applied for and received a permit under the town zoning regulations to conduct their businesses. The relevant permit provisions provide:
These provisions identify three areas: (1) the sorting area, (2) the selecting/storage area, also called "the bunker," and (3) the recycling area.
On November 16, 1995, the zoning administrator issued a notice of violation of the 1994 permit. Permittees appealed to the zoning board of adjustment, which upheld the notice of violation. Permittees appealed further to the environmental court. The Town also filed a complaint for enforcement of the decision of the zoning board of adjustment, requesting that the court impose fines for each day of violation.
The environmental court consolidated the two cases. It found violations of several 1994 permit conditions and ordered the permittees to bring their operation into compliance with their permit within fifteen days, except for changing the size of the noncomplying bunker. The court further ordered permittees to submit a noise abatement plan to the zoning board of adjustment within forty-five days. The court declined to impose any fines on the ground that the Town had not requested them.
Both parties filed post-judgment motions. Permittees requested a clarification of the order concerning metals, claiming that they initially deposit metals in the sorting area but then move them to the bunker for selecting and storage. They contended that the court's finding that short-term accumulation of recyclables for approximately one week does not constitute "storage" as the term is used in the field of waste management contradicted its statement that "[p]ermittees must remove any metals in piles outside the bunker." In response, the court amended its decision, to state: "permittees must remove any metal in piles outside the bunker no later than eight days after they have been placed in such piles." (Emphasis added.)
The Town also filed a motion to modify the court's decision, asserting the court erred by stating that the Town had not requested fines because both the complaint and the proposed findings and conclusions included such a request. The Town requested that the court impose fines of twenty dollars per day from November 23, 1995, which was seven days after the notice of violation. The court denied the motion, stating it could not find from the evidence that violations occurred on all 466 days but granting leave to renew the motion "if supported by a list of dates of violations keyed to the evidence." The court stated that, if the motion were renewed, it would give permittees an opportunity to submit evidence on the penalty issue, and, in determining the appropriate fine, it would take into consideration the money permittees had spent on compliance. See Town of Hinesburg v. Dunkling, 167 Vt. 514, 529, 711 A.2d 1163, 1172 (1998) ().
The Town appealed. It first claims that the court erred by modifying its decision to allow piles of metal to remain outside the bunker for up to eight days. The Town maintains that this modification allows permittees to sort metal outside the bunker, which is inconsistent with the 1994 permit. In response, permittees claim that metals can be sorted only in front of the bunker and that sorting the metals outside is the purpose of making piles outside the bunker.
Sorting metals outside the bunker violates the plain language of both condition...
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