Town of Fairfax v. Beliveau (In re Beliveau NOV)

• Decision Date: 14 June 2013
• Docket Number: 12–136.,Nos. 12–135,s. 12–135
• Citation: 72 A.3d 918,2013 VT 41
• Parties: In re BELIVEAU NOV Town of Fairfax v. Leon Beliveau.
• Court: Vermont Supreme Court

72 A.3d 918

2013 VT 41

In re BELIVEAU NOV

Town of Fairfax

v.Leon Beliveau.

Nos. 12–135, 12–136.

Supreme Court of Vermont.

June 14, 2013.

Peter J. McDougall of Paul Frank + Collins P.C., Burlington, for Appellant.

John H. Klesch of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

SKOGLUND, J.

¶ 1. Homeowner appeals the Superior Court, Environmental Division's grant of summary judgment in favor of the Town of Fairfax and imposition of associated penalties. The court upheld the Town's violation, finding that homeowner changed the use of his property from a single-family dwelling to a rooming-and-boarding house without obtaining a change-of-use permit as required by the applicable zoning bylaws. Homeowner contends: the trial court erred in finding that the property was used as rooming-and-boarding house; the definitions of family and rooming-and-boarding house in the Town's zoning bylaws are unconstitutionally vague; and the court improperly assessed the accompanying fines. We affirm.

¶ 2. As found by the environmental court, homeowner owns a house in the Town of Fairfax. He uses his home as both his personal residence and as a rental property. He maintains a bedroom for his exclusive use and rents the remaining portions of his home. Homeowner began providing sleeping accommodations in his home, charging for and receiving payments for those accommodations sometime around June 2008. Occupants paid a set monthly rent based on the oral agreement formed between each occupant and homeowner. Neither homeowner, nor occupant was obligated to continue the rental relationship beyond the month for which rent was currently paid.

¶ 3. In May 2008, the zoning administrator for the Town personally served homeowner a letter informing him that his house was impermissibly employed as a rooming-and-boarding house as a result of his failure to obtain the requisite zoning permit for the change in use from a single-family dwelling. Homeowner was informed that he could cure the violation by either “obtaining all the necessary permits and approvals or by terminating the use.” Homeowner did neither. The zoning administrator issued a formal notice of violation for the unpermitted change in use on June 5, 2008.

¶ 4. Homeowner appealed the violation to the Fairfax Development Review Board, which found that the homeowner “did change the use of the home ... from a single family home to a Rooming/Boarding house without obtaining the required permits.” Homeowner then appealed the Board's decision to the environmental court. Soon thereafter, the Town filed an enforcement action with the court against homeowner.¹ On June 24, 2009, the Town filed a motion for summary judgment, which the court granted, upholding the violation. The court entered a judgment against homeowner and levied a penalty in the amount of $22,770 against homeowner.

¶ 5. Homeowner appeared the environmental court's decision to this Court. In July 2010, this Court reversed the environmental court's decision and remanded the case for additional proceedings, finding that the Town provided no evidence “that [homeowner] resided in the home during the period in question” and “failed to demonstrate that individuals were supplied with and charged for sleeping accommodations ‘for a fixed period of time’ ”—both necessary elements of the rooming-and-boarding definition in the Town's zoning bylaws, as discussed in detail below. In re Beliveau Notice of Violation, Nos.2010–064, 2010–065, 2010 WL 7795009, at *2 (Vt. July 16, 2010) (unpub.mem.), http:// www. vermont judiciary. org/ dupeo/ Microsoft % 20Word% 20– % 20eol0–064.pdf.

¶ 6. On remand, the parties conducted additional discovery, and then both filed cross-motions for summary judgment. The environmental court granted summary judgment in favor of the Town, determining that homeowner had changed the use of his house from a single-family residence to a rooming-and-boarding house without first obtaining a permit for the rooming-and-boarding-house use. The court imposed a penalty of $63,142 against homeowner and ordered the immediate cessation of use of the property as a rooming-and-boarding home. Homeowner appeals.

¶ 7. This Court reviews decisions on motions for summary judgment de novo. Mooney v. Town of Stowe, 2008 VT 19, ¶ 5, 183 Vt. 600, 950 A.2d 1198 (mem.). A grant of “[s]ummary judgment is appropriate when, giving the benefit of all reasonable doubts and inferences to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7, 187 Vt. 7, 989 A.2d 491. “When both parties move for summary judgment, each is entitled to the benefit of all reasonable doubts and inferences when the opposing party's motion is being judged.” City of Burlington v. Fairpoint Commc'ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332, 980 A.2d 226 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48, 582 A.2d 123, 125 (1990)).

¶ 8. Our review of environmental court decisions is deferential. In re Sardi, 170 Vt. 623, 623, 751 A.2d 772, 773 (2000) (mem.). This Court is bound by the environmental court's interpretation of a zoning ordinance unless it is clearly erroneous, arbitrary, or capricious. Badger v. Town of Ferrisburgh, 168 Vt. 37, 39, 712 A.2d 911, 913 (1998).

¶ 9. Homeowner challenges the environmental court's determination that as a matter of law his property was used as a rooming-and-boarding house. The zoning bylaws define a rooming-and-boarding house as “[a]n owner occupied residence where a person or persons, for a fixed period of time, are supplied with and charged for meals or sleeping accommodations or both.” For a property to be rendered a rooming-and-boarding house under the bylaws, each of the three elements must be met: (1) the residence must be occupied by the owner; (2) a person or persons must be supplied with and charged for meals or sleeping accommodations or both; and (3) such provisions must be for a fixed period of time. It is undisputed that at all relevant times the property was homeowner's primary residence. It is also undisputed that other individuals living at the property were provided with, and charged for, sleeping accommodations. Homeowner contends that because individuals staying at the premises were doing so on an at-will basis and were free to stay for an indefinite period of time, pursuant to oral agreements between each individual and homeowner, the third element—that accommodations be supplied for a fixed period of time—was not satisfied.

¶ 10. The agreements between homeowner and the individuals residing in his home were as follows. Homeowner entered into an oral agreement with each individual, stating they were to “pay X dollars per month for the use of the rooms.” On occasion, homeowner permitted individuals to continue residing at his home despite their failure to pay the full, agreed-upon amount for a particular month. A tenant who wished to remain another month in the house then paid homeowner an additional month's rent at the agreed-upon rate. If agreeable to him, homeowner accepted the rent payment. The environmental court concluded, and we agree, that this was a rental agreement for a fixed month-to-month term.

¶ 11. Homeowner claims that the oral agreement created an at-will tenancy pursuant to 27 V.S.A. § 302. Section 302 of Title 27 provides that “[e]states or interests in lands, created or conveyed without an instrument in writing shall have the effect of estates at will only.” By its very nature, a tenancy at will intimates indefinite durational terms. A tenancy at will is one “in which the tenant holds possession with the landlord's consent but without fixed terms (as for duration or rent).” Black's Law Dictionary 1604 (9th ed.2009). Nonetheless, common law and our case law provide that an estate at will is converted into a periodic tenancy by the payment of rent. The conversion is wrought when the lessor receives a periodic rent, be it month-to-month or year-to-year, etcetera. See Silsby v. Allen, 43 Vt. 172 (1870); Black's Law Dictionary, supra, at 1604.

¶ 12. In the present case, the individuals residing at homeowner's home made continuous monthly payments, creating a periodic tenancy—a “tenancy that automatically continues for successive periods.” Black's Law Dictionary, supra, at 1604. It is of little consequence that the successive periods at issue here were for a relatively short period of time—a month. A fixed period can be for any duration. The fact that homeowner did not always require his tenants to pay the full amount of agreed-upon rent and allowed certain tenants to forgo some rent payments and provide maintenance or repair services in lieu of rent also does not change the result. Further, homeowner acknowledged that he was required to provide tenants with the requisite statutory notice before terminating the rental agreement. See generally 9 V.S.A. § 4467.

¶ 13. Following homeowner's suggested approach—that only agreements with specific or set end dates satisfy the fixed period requirement under the bylaws—would create absurd results. Indeed, such a narrow interpretation would arguably eliminate periodic tenancies, renewable tenancies, or any other arrangements that lack a precise termination date. To accept this assertion would render a portion of the rooming-and-boarding definition meaningless. “Generally, we do not construe a statute in a way that renders a significant part of it pure surplusage.” In re Lunde, 166 Vt. 167, 171, 688 A.2d 1312, 1315 (1997) (quotation omitted). We find the environmental court's interpretation that homeowner provided sleeping accommodations for a fixed period of time and therefore operated a rooming-and-boarding house reasonable. As such, homeowner changed the use of his property from a single-family dwelling to a rooming-and-boarding house...