Town of Pawlet v. Banyai
| Docket Number | 2021-096 |
| Decision Date | 14 January 2022 |
| Parties | Town of Pawlet v. Daniel Banyai |
| Court | Vermont Supreme Court |
On Appeal from Superior Court, Environmental Division Thomas S Durkin, J.
Merrill E. Bent of Woolmington, Campbell, Bent & Stasny P.C., Manchester Center, for Plaintiff-Appellee.
Cindy E. Hill of Hill Attorney PLLC, Middlebury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, [1] Eaton, and Carroll, JJ., and Dooley, J. (Ret.), Specially Assigned
¶ 1. This enforcement action stems from a dispute between landowner Daniel Banyai and the Town of Pawlet over alleged zoning violations related to the construction of a firearms training facility on landowner's property. Landowner appeals an Environmental Division decision upholding a notice of violation, granting a permanent injunction, and assessing $46, 600 in fines, arguing that he had a valid permit, certain exhibits were improperly admitted at the merits hearing, and the fines were excessive. We affirm.
¶ 2. We begin with an overview of the factual and procedural history. In 2013, landowner purchased an undeveloped tract of land in West Pawlet, Vermont. The roughly thirty-acre property had a deeded thirty-foot right-of-way over neighboring property. The Town of Pawlet has Unified Zoning Bylaws, which contain two particularly relevant provisions. First, the Bylaws require a fifty-foot-wide right-of-way for property undergoing development. Town of Pawlet Unified Bylaws 66, ¶ 9 (2017), https://pawlet.vt.gov/wp- content/uploads/2009/01/Pawlet_Unified-Bylaws-adopted-2017.pdf [https://perma.cc/THB4- J2AA] [hereinafter Bylaws]; id. art. V, § 4. Second, the Bylaws require a property owner to obtain a permit before commencing a new construction project or changing a property's use. Id. art. VIII, § 2 ().
¶ 3. In late 2017, landowner began operating a firearms training facility on the property. His facility includes, at minimum, a 500-square-foot structure and two outdoor shooting ranges, one of which has covered shooting benches. In December 2017, landowner filed a permit application with the Town's zoning administrator, requesting approval for a "school" structure and change of use of the property from "land" to "school." In January 2018, the zoning administrator denied the application (January 2018 Permit Denial) because the property's thirty-foot right-of-way was not in compliance with the fifty-foot right-of-way requirement. Landowner did not appeal the January 2018 Permit Denial.
¶ 4. In April 2018, landowner sent the Town of Pawlet Development Review Board (DRB) a letter titled "Reference: Zoning Appeal." This letter sought a variance for landowner's thirty-foot right-of-way, aiming to address the reason for the January 2018 Permit Denial.[2] On April 25, 2018, the DRB held a hearing on landowner's variance application and concluded the property was a preexisting nonconformity that did not require a variance. Neighbors, whose property borders landowner's right-of-way, timely appealed the DRB's variance decision to the Environmental Division.
¶ 5. While the variance appeal was pending, the zoning administrator issued landowner a notice of violation in May 2018 (NOV1). NOV1 stated landowner was in violation of the bylaw requiring a permit prior to construction or land development because he had "a building and land use without an approved permit." Bylaws art. VIII, § 2. It gave landowner seven days to fix the violation and invited him to do so by submitting a permit application. In response to NOV1, landowner submitted a permit application in June 2018, for a "school building" structure and new use of the property as "school/training." The same day, the zoning administrator approved this application and granted landowner a permit (June 2018 Permit).[3] In October 2018, landowner applied for and obtained a permit to construct a residential garage/apartment (October 2018 Permit).
¶ 6. Meanwhile, the Environmental Division issued its decision on neighbors' variance appeal in January 2019. The court determined that the DRB erred when it concluded landowner's property did not require a variance instead of considering whether to grant a variance and remanded to the DRB to make that determination on the merits. See In re Banyai Variance, No. 53-5-18 Vtec, at *6. The court reasoned the January 2018 Permit Denial was final and binding under 24 V.S.A. § 4472 because it went unappealed, and therefore, landowner required a variance for the noncompliant right-of-way, as initially stated in the January 2018 Permit Denial. Id. at *4-5. On remand, the DRB denied the variance application and landowner did not appeal.
¶ 7. In August 2019, the zoning administrator sent landowner a second notice of violation (NOV2) alleging he erected multiple structures and used his property as a training facility/shooting school in violation of the bylaw requiring a landowner to obtain a permit before beginning construction or changing land use. See Bylaws art. VIII, § 2. NOV2 stated that landowner's only valid permit was the October 2018 Permit for a garage/apartment. To cure the violation, NOV2 instructed landowner to "eliminate the unpermitted uses on the property, remove all unpermitted buildings, and not allow unpermitted uses to resume on the property" within seven days. It also provided he could appeal the notice to the DRB and that failure to appeal would result in NOV2 becoming "the final decision on the matter." Landowner did not appeal NOV2 and did not follow the letter's instructions to cure the violation.
¶ 8. At this point, we arrive at the proceeding directly subject to this appeal. In September 2019, the Town filed an action in the Environmental Division to enforce NOV2. The Town filed a motion for summary judgment arguing that landowner's property was in violation of the Bylaws, landowner was barred from contesting the alleged violations in NOV2, and the Town was entitled to injunctive and monetary relief to remedy the violations. The Environmental Division granted the motion in part, concluding that landowner's failure to appeal NOV2 rendered it final and binding under 24 V.S.A. § 4472(d), and prevented landowner from contesting the violations therein, including the lack of a valid permit for a "school." The court explained that the June 2018 Permit was invalid because the zoning administrator lacked jurisdiction to issue it while the DRB's variance decision was on appeal. However, the court added that even if the June 2018 Permit was initially valid, the finality of NOV2 rendered the permit ineffective. The court denied summary judgment as to the Town's various requests for remedies, including injunctive relief, penalties, and enforcement fees.
¶ 9. In December 2020, the Environmental Division held an evidentiary hearing on the remaining issues. The Town provided witnesses and exhibits to demonstrate landowner's violations and noncompliance. Landowner testified on his own behalf but refused to answer questions from the Town on direct or on cross-examination. The trial court found landowner in contempt for his refusal to answer questions on cross-examination. Although the record is not entirely clear, as a sanction for refusing to answer questions the court either admitted some of the Town's exhibits into evidence or considered the information in the exhibits to be admitted by landowner. See infra, Part II.B.
¶ 10. Following the merits hearing, the trial court granted the Town's motion for a preliminary injunction and enjoined landowner from conducting firearms training activities on his property or seeking a permit to do so until the decision on the merits. In March 2021, the trial court issued its decision on the merits, which incorporated the factual findings and legal conclusions from the partial summary judgment order and preliminary injunction order. The court permanently enjoined landowner from engaging in the unpermitted uses on his property. To ensure compliance with the injunction, the court ordered landowner to hire a surveyor or engineer to complete a site plan of the property to submit to the court and the Town, and then to remove all structures in violation of the Bylaws. As to penalties, the court considered various factors and imposed a $100 daily fine totaling $46, 600 on landowner.[4]
¶ 11. On appeal, landowner first argues the June 2018 Permit is valid and became final when it went unappealed. He therefore contends NOV2 is invalid for a variety of reasons, including: (1) it is an impermissible collateral attack on the June 2018 Permit; (2) landowner's alleged violations are for private recreational land uses not subject to municipal zoning; and (3) NOV2 valid would violate Dillon's Rule and the constitutional principle of separation of powers. He also argues the trial court abused its discretion when it admitted four of the Town's exhibits into evidence as a sanction for contempt. Finally, he proposes that even if NOV2 is valid, the trial court abused its discretion by imposing excessive fines for the violations.
¶ 12. We conclude NOV2 is final and binding and that landowner is therefore precluded from contesting any of the violations therein. Even if the June 2018 Permit was valid, landowner was obligated to raise this argument by appealing NOV2. Having failed to do so, NOV2 became final and cannot now be collaterally challenged in this enforcement action. As to the merits hearing, there was no error in the contempt...
To continue reading
Request your trial