In re Mongeon Bay Props.

• Docket Number: 21-ENV-00053
• Decision Date: 13 February 2023
• Parties: Mongeon Bay Properties, Inc. Permit Extension Denial
• Court: Superior Court of Vermont

2023 Vt Super 021301

Mongeon Bay Properties, Inc. Permit Extension Denial

No. 21-ENV-00053

Superior Court of Vermont, Environmental Division

February 13, 2023

ENTRY REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT

Thomas G. Walsh, Judge

Motion 2: Motion for Summary Judgment

Filer A.J. LaRosa, Attorney for Appellant/Applicant Mongeon Bay Properties, LLC

Filed Date: August 22, 2022

Statement of Material Facts in Support of Motion for Summary Judgment filed August 22, 2022, by A.J. LaRosa, Attorney for Appellant

Town of Colchester's Opposition to Appellant's Motion for Summary Judgment, filed on September 21, 2022, by Brian Monaghan, Attorney for Town of Colchester

Statement of Disputed Material Facts, filed on September 21, 2022, by Brian Monaghan, Attorney for Town of Colchester

Motion 3: Motion for Summary Judgment

Filer Brian P. Monaghan

Filed Date: August 31, 2022

Statement of Undisputed Material Facts, filed on August 31, 2022, by Brian Monaghan, Attorney for Town of Colchester

Memorandum of Law in Opposition to Town of Colchester's Motion for Summary Judgment, filed September 29, 2022, by A.J. LaRosa Attorney for Appellant

Statement of Disputed Facts in Support of Opposition to Town's Motion for Summary Judgment, filed September 29, 2022, by A.J. LaRosa, Attorney for Appellant

Reply in Support of Motion for Summary Judgment, filed on October 13, 2022, by Brian Monaghan, Attorney for Town of Colchester

Statement of Disputed Material Facts, filed on October 13, 2022, by Brian Monaghan, Attorney for Town of Colchester

INTRODUCTION

Mongeon Bay Properties, LLC (Mongeon) appealed the Town of Colchester (Town) Development Review Board's (DRB) May 19, 2021 decision denying Mongeon's request to extend building permit #26013 (Permit). The Permit, issued July 2018, authorized Mongeon to re-construct a home at 927 East Lakeshore Drive (Project) and on its face, expired July 2019. The home was not completed during that year, and Mongeon requested an extension sometime after July 2019. Presently before the Court are cross motions for summary judgment filed by Mongeon and the Town concerning whether the facts demonstrate that the Permit was active when the extension was requested. Mongeon's Mot. for Summ. J. (filed Aug. 22, 2022); Town's Mot. for Summ. J. (filed Aug. 31, 2022). Mongeon is represented by Attorney A.J. LaRosa. Town is represented by Attorney Brian Monaghan.

STATEMENT OF QUESTIONS

In the Environmental Division, the Statement of Questions provides notice to other parties of the issues to be determined within the case and limits the scope of the appeal. In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.). Appellants' Statement of Questions presents the following questions for the Court's review:

1. Did Pert No. #26013 expire or was it subject to renewal as requested? In answering this question, the Court is directed to Section 11.05 - Expiration of Permits and Approvals - of the Colchester Development Regulations?

2. To the extent Permit #26013 provided for the reconstruction of a permitted single family residence within the Shoreland Overlay District, that was technically non-conforming as to lakefront encroachment, does Section 7.03(F)(10) of the Colchester Development Regulations eliminate any permit expiration deadlines applicable to this specific structure and permit?

3. Did the COVID-19 Pandemic and Governor Scott's Emergency Order(s) relating thereto continue, toll, extend, or otherwise constitute good cause to extend any timelines for permit expiration and/or toll, extend, or otherwise constitute good cause to extend any timelines for renewal?

4. Did the Town of Colchester's Stop Work Order and Zoning Enforcement Action with order to stay construction at 927 E. Lakeshore Drive continue, toll, extend, or otherwise constitute good cause to extend any timelines for renewal?

5. By failing to act on Applicant's request for renewal in a timely manner when previously made, did the Town inherently renew Permit No. #26013?

Mongeon's Statement of Questions (filed June 6, 2021). Mongeon's Questions 1 and 2 ask whether the permit was extended or exempted by the operative language in the Town of Colchester Development Regulations (Bylaws). Question 3 asks whether the COVID-19 pandemic and its ensuing Executive Orders and Legislative Enactments prevented the permit from expiring. Question 4 asks whether the Notice of Violation (NOV) Stop Work Order and litigation regarding the seawall construction on the property tolled the Permit period for the reconstruction of the home on the property. Finally, question 5 contemplates whether the Permit was extended by application of the "deemed-approval" remedy in § 4448 of Title 24.

DISCUSSION

In Mongeon's motion for summary judgment, it argues that the undisputed facts entitle it to judgment as a matter of law. Specifically, Mongeon argues (1) by operation of the language in Bylaws §§ 11.05.A, 7.03.F.10, the Permit did not expire July 2019 and § 2.12.B does not apply due to the non-conforming nature of the house; (2) the litigation regarding the seawall permit (and its accompanying Stop-Work Order) caused a construction delay because the home could not be built until the seawall was complete, Preseault v Wheel, 132 Vt. 247, 253 (1974); (3) the COVID-19 pandemic and ensuing law prevented the Permit from expiring until September 15, 2021; and (4) the Town's failure to respond to Mongeon's request for a permit extension resulted in that request being approved pursuant 24 V.S.A. § 4448.

The Town argues that it is entitled to judgment as a matter of law because the Permit expired July 2019, at which point, insufficient work had been completed to extend the Permit's expiration pursuant the Bylaws. As such, the Town argues that the undisputed material facts demonstrate that Mongeon's Permit was expired prior to receipt of any request for an extension or tolling from the COVID-19 pandemic.

Summary Judgment Standard

"Summary judgment is appropriate only where the moving party establishes that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law." Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). When considering cross-motions for summary judgment, the court considers each motion individually and gives the opposing party the benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint Commc'ns, Inc., 2009 VT 59 ¶ 186 Vt. 332.

Under Rule 56, the initial burden falls on the moving party to show an absence of dispute of material fact. Couture v. Trainer, 2017 VT 73, ¶ 9 (citing V.R.C.P. 56(a)). Where "the moving party does not bear the burden of persuasion at trial," however, "it may satisfy its burden of production by indicating an absence of evidence in the record to support the nonmoving party's case." Mello v. Cohen, 168 Vt. 639, 639-40 (1998) (mem.). Once the moving party has made that showing, the burden shifts to the non-moving party. Id. The nonmoving party may not rest on mere allegations but must come forward with evidence that raises a dispute as to the facts in issue. Clayton v. Unsworth, 2010 VT 84, ¶ 16, 188 Vt. 432. The evidence, on either side, must be admissible. See V.R.C.P. 56(c)(2), (4); Gross v. Turner, 2018 VT 80, ¶ 8.

I. Questions 1-4

The Court starts the analysis with Question 4, as Mongeon's other questions appear to rely on an affirmative finding of Question 4.^[1] Question 4 asks whether the NOV's stop-work order or the ensuing seawall litigation tolled the expiration of the Permit. The Court concludes that there remains a dispute of material fact, particularly with regards to whether the litigation regarding the seawall permit actually delayed construction on the Project.

On the Town's Motion for Summary Judgment, the Court considers all reasonable doubts and inferences in favor of the Mongeon. In so doing, the Court finds that it is possible that the litigation regarding the seawall caused an actual delay to construction on this Permit. It is possible that construction on the Project could not move forward until construction on the seawall was complete due to instability in the ground below the home. Thus, the Court DECLINES to enter summary judgment for the Town on Question 4.

Considering all reasonable doubts and inferences in the Town's favor however, the Court cannot find that Mongeon has met their burden of showing that there is no dispute of material fact regarding whether the completion of the seawall was necessary before construction could begin on the Project. While Mongeon did provide evidence sufficient to survive a motion for summary judgment, the only evidence proffered from Mongeon is from the affidavit of Bruce Mongeon, the "managing member of Mongeon Bay Properties, LLC." See Mongeon Aff. ¶ 1 (filed Aug. 22, 2022). In it, Mr. Mongeon asserts that "[w]ithout the completed seawall, the revised house at 927 would be unstable." Id. 22. While sufficient to prevent the Town from prevailing on its motion, this is insufficient to prevail on its motion. The Town did not bring evidence disputing his testimony, or even object to this assertion on evidentiary grounds. Town's Statement of Disputed Material Facts ¶¶ 12-14, 16 (disputing solely on the basis that seawall is immaterial). The Court, however, does not have sufficient background on this witness to determine whether he is qualified to offer this opinion. See generally id. The Court can only consider admissible evidence in a summary judgment motion, and taking reasonable inferences in the Town's favor, this testimony is insufficient. See V.R.C.P. 56(c)(2), (4); Gross v. Turner, 2018 VT 80, ¶ 8; see V.R.E. 701-702 ...