In re Letourneau

Decision Date24 December 1998
Docket NumberNo. 97-403.,97-403.
CourtVermont Supreme Court
PartiesIn re Appeals of Phillip LETOURNEAU.

Charles D. Hickey, St. Johnsbury, for Appellants.

Glenn C. Howland of McKee, Giuliani & Cleveland, P.C., Montpelier, for Appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Phillip Letourneau (landowner) appeals from a decision of the environmental court imposing a civil fine and awarding injunctive relief in connection with an addition he placed on his home in Derby without a zoning permit and in violation of applicable setback requirements. Landowner raises a variety of constitutional, statutory and evidentiary issues in challenging the determination, also taking the position that the town should be estopped from bringing this enforcement action and that the environmental court exceeded its jurisdiction in ordering the removal of the addition before any sale of landowner's home. We affirm.

Many of the trial court's findings are undisputed, and we summarize them here: The home in question is located on landowner's farm of approximately 184 acres on Holland Road in an area of Derby designated a "rural lands" district by the town's zoning ordinance. The building, and landowner's title to it, antedate the Derby zoning ordinance, enacted in 1977. The ordinance contains a 50-foot setback requirement for homes in this district. All but the rear four feet of the house are located within the setback zone from Holland Road. As of the time the zoning ordinance went into effect, the house included a roofed porch, six feet deep, along the front facing Holland Road and one side of the building. There was also a set of three steps leading to the porch.

In 1994, landowner's mother lived at his home during a period of convalescence and, because of her physical needs, occupied the living room. Anticipating that such a situation might recur, landowner decided in 1995 to expand the living room. To build onto the side of the house outside of the setback area was deemed expensive and inconvenient because it would have required the removal of a garage, woodshed and/or mud room. Landowner therefore decided to expand in the direction of the porch, which by then had become dilapidated.

A neighbor of landowner, Susan Judd, was in 1995 the chair of the Derby Planning Commission and had recently served as the town's zoning administrator. Prior to beginning construction on the living room expansion, landowner asked Judd if he needed a permit to tear down and rebuild his porch. He did not tell Judd that he intended to enlarge the enclosed living space of the house into the area occupied by the porch, nor did he tell her that his plan included expanding the building's footprint beyond that of the porch structure. According to the environmental court, Judd told landowner "that she did not anticipate a problem with his plans. She did not tell [landowner] that the project did or did not require a permit."

Based upon this discussion, landowner commenced construction. Judd said nothing further to landowner when she drove by his home and noticed he was removing the porch. In place of the porch, landowner constructed an L-shaped addition, 12 feet deep, extending 24 feet along the front of the house and 21 feet along one side. The trial court determined that this "increased the degree of nonconformity of the porch [with the setback requirement] by an additional six feet to the front and to the side (or an additional three feet in the area formerly occupied by the front steps[)]." After landowner had made substantial progress on this addition, Judd stopped by the house, told landowner he needed a zoning permit, helped him fill out an application and told him to see the town's zoning administrator. The zoning administrator denied the application based on noncompliance with the 50-foot setback requirement and advised landowner to seek a variance. While the application process was ongoing, landowner completed work on the addition.

Following a public hearing, the town's zoning board of adjustment denied the variance request on December 15, 1995 and, thereafter, the administrator sent landowner a formal notice of zoning violation. At this point, judicial proceedings began with landowner filing a declaratory judgment action in the superior court seeking a determination that the setback requirement in the zoning ordinance is unconstitutional. Landowner appealed the zoning violation notice to the board of adjustment, which affirmed the administrator's decision on January 4, 1996. Landowner then appealed both the board of adjustment's variance decision and its determination as to the zoning violation to the environmental court. Finally, the town in March 1996 filed an enforcement action in the environmental court seeking the imposition of civil fines and a permanent injunction requiring landowner to remove the addition to his home. These four separate proceedings were ultimately consolidated before the environmental judge.1

Landowner requested a jury trial on the enforcement action, but the environmental court denied the motion, and an attempt to obtain interlocutory review of this decision was unsuccessful. The trial court thereafter conducted an evidentiary hearing on the variance matter and, on October 3, 1996, entered an order reaching the same determination as the board of adjustment. The court then heard evidence on the remaining three matters and on June 19, 1997 issued an opinion rejecting landowner's constitutional claim and determining that he had violated the zoning ordinance by building the addition. On August 22, 1997, the environmental court entered its final judgment (a) assessing a civil fine of $3,090, amounting to $10 per day for 309 days, and (b) ordering landowner, or, if applicable, his heirs and assigns, to remove the addition and to restore the house to its previous footprint prior to any transfer of interest in the property.

On appeal, landowner raises seven issues, contending that: (1) the setback requirement of the zoning ordinance is unconstitutional because it is not reasonably related to public health, safety, morals and general welfare; (2) there is no prohibition in the zoning ordinance or statute against the expansion of a noncomplying structure; (3) the town should be estopped from enforcing the zoning ordinance; (4) the town is guilty of selective enforcement of its zoning ordinance; (5) the injunction was improper; (6) landowner was entitled to a jury trial; and (7) the environmental court improperly excluded evidence of the town's violation of state building requirements. We take these claims in order.

First, landowner challenges the constitutionality of the setback requirement in the zoning ordinance, arguing that the town has not made a sufficient showing of relationship of the setback requirement to the public good. Zoning requirements are constitutional if there remains for the landowner "some practical use of his land, and the existence of a public good or benefit of sufficient magnitude to justify the burdening of the affected property." Galanes v. Town of Brattleboro, 136 Vt. 235, 240, 388 A.2d 406, 409 (1978). The zoning regulation must be reasonably related "to public health, safety, morals or general welfare." Id. at 240, 388 A.2d at 410; see also State v. Sanguinetti, 141 Vt. 349, 351, 449 A.2d 922, 924 (1982) (same). It is not, of course, our role to choose a regulatory approach among the many that might be reasonable. Thus, "Courts will not interfere with zoning unless it clearly and beyond dispute is unreasonable, irrational, arbitrary or discriminatory," City of Rutland v. Keiffer, 124 Vt. 357, 367, 205 A.2d 400, 407 (1964), and zoning ordinances are presumed valid. See McLaughry v. Town of Norwich, 140 Vt. 49, 54, 433 A.2d 319, 322 (1981).

The United States Supreme Court long ago determined that as a general proposition setback requirements are valid as reasonably related to the public health, safety and welfare. See Gorieb v. Fox, 274 U.S. 603, 608-10, 47 S.Ct. 675, 71 L.Ed. 1228 (1927). Numerous general purposes of zoning regulation are promoted by setback regulation. See 24 V.S.A. § 4302(a) (goals of zoning including "access to adequate light and air," avoiding "overcrowding of land and buildings," and protection against traffic congestion and "the invasion of through traffic"). For example, requiring that buildings be set back from a highway protects sight lines for automobiles and ensures emergency access to the buildings for fire protection purposes without blocking the highway.

Although there are justifications for setback regulation generally, landowner argues that there is no justification for applying setback restrictions to him because the environmental court found:

[T]he addition as built does not alter the essential character of the neighborhood, does not impair the appropriate use or development of adjacent property, does not reduce access to renewable energy resources, and is not detrimental to the public welfare.

We agree with landowner that the leading case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926), demands that we focus not on the "abstract" but on the challenged zoning requirement "in connection with the circumstances and the locality." We do not agree, however, that the municipality must specially prove that the public safety and welfare is advanced by application of the zoning regulation to the land in issue here, and that we must scrutinize the zoning ordinance on a parcel-by-parcel basis. The setback restriction is part of a regulatory scheme that allows for variances in appropriate circumstances — some of which were the reason for the environmental court's finding quoted above. See 24 V.S.A. § 4468(a)(4) (requiring a variance if it, inter alia, "will not alter the essential character of the neighborhood or district in which the property is located, substantially...

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    ...any effect upon public interest or policy that would result from estopping the government in a particular case." In re Letourneau, 168 Vt. 539, 547, 726 A.2d 31, 37 (1998) (quotation omitted).Grundstein, 2018 VT 10, ¶¶ 26-27, 206 Vt. 575, 183 A.3d 574 (observing that even had applicant "est......
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