Town of Fairfax v. Beliveau ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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Town of Fairfax, }
Plaintiff, }
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v. } Docket No. 274-11-08 Vtec
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Leon L. Beliveau, }
Defendant. }
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In re Beliveau Notice of Violation } Docket No. 193-8-08 Vtec
(Appeal of Beliveau) }
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Decision and Order on Town’s Motion for Summary Judgment
In Docket No. 193-8-08 Vtec, Appellant Leon L. Beliveau appealed from a
decision of the Development Review Board (DRB) of the Town of Fairfax, upholding a
Notice of Violation for the use of the property at 1166 Main Street as a rooming and
boarding house, without first obtaining a permit for that use. In Docket No. 274-11-08
Vtec, the Town brought an enforcement action against Mr. Beliveau, alleging that he
changed the use of the property from a single-family residence to a rooming and
boarding house, without first obtaining a zoning permit for the rooming and boarding
house use. The Town is represented by John H. Klesch, Esq.; Defendant-Appellant
(Defendant) Beliveau has appeared and represents himself. Both matters are scheduled
for trial together on August 20, 2009, from 9:00 a.m to 2:00 p.m., at the Franklin Superior
Court in St. Albans, Vermont.
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The Town moved for summary judgment; Defendant was given until July 23,
2009 to file his response to the motion, and filed a response that date. The following
facts are undisputed unless otherwise noted.
Summary judgment is appropriate if the memoranda, depositions, answers to
interrogatories, and affidavits, if any, “show that there is no genuine issue as to any
material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). Regardless of whether one party or both parties seek summary judgment, the
Court will give each party the benefit of all reasonable doubts and inferences when the
opposing party’s motion is being considered. DeBartolo v. Underwriters at Lloyd’s of
London, 2007 VT 31, ¶ 8, 181 Vt. 609; In re Gizmo Realty/VKR Assocs., LLC, No. 199-9-
07 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 30, 2008) (Durkin, J.). When opposing a motion
for summary judgment, a party may not rest on bare allegations alone, but must come
forward with some affidavit or other evidence supporting the existence of disputed
material facts. Johnson v. Harwood, 2008 VT 4, ¶ 5; In re Scarborough Conditional Use
Application, No. 206-9-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. Mar. 13, 2008) (Wright, J.).
The adverse party must lay out specific facts, supported by evidence, showing a need
for trial. Field v. Costa, 2008 VT 75, ¶ 14 (citing V.R.C.P. 56(e)); In re Geddes PUD
Conditional Use Application, No. 293-12-08 Vtec, slip op. at 5 (Vt. Envtl. Ct. Apr. 21,
2009) (Wright, J.).
Defendant owns property at 1166 Main Street in the Town of Fairfax. Material
facts may not actually be disputed, but have not been established, as to the zoning
district in which the property is located, and as to whether the “rooming and boarding
house” use category is a permitted use or a conditional use in the zoning district in
which the property is located.
The property contains at least a house, which is the subject of the issues in these
cases. Defendant has used the house as a place in which to live, raise a family, and do
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business, since February 5, 1999. Material facts may not actually be disputed, but have
not been established, as to whether or during what periods Defendant has personally
occupied the house during the period from June 12, 2008, to the present.
A Notice of Violation was served on Defendant on June 5, 2008, informing him
that he was in violation of the Zoning Bylaws by using the house on the property as a
rooming and boarding house without obtaining a permit in accordance with § 2.2.A of
the Zoning Bylaws.
It is important to note that this litigation does not address or resolve whether the
property would qualify for approval, either as a permitted use or as a conditional use, if
Defendant were to apply for a zoning permit for a rooming and boarding house use for
the property. If Defendant wished to apply for such a permit, the application would go
to the zoning administrator if the use is a permitted use in the district (and would go to
the DRB if the use is a conditional use in the district) in the first instance, not to the
Court. Any additional required approvals, such as site plan approval or any water or
wastewater approvals, are also not before the Court in the present litigation. Any
action on such a permit application by the DRB could later be appealed to this Court,
but is not before the Court in the present litigation.
On the other hand, if Defendant wishes to revert or has already reverted to a
single-family use of his residential property, whether or not he lives in it himself or
rents it out, his use of the property as a single-family residence is relevant to the
questions in the present litigation of when the violation has ceased or will cease, and
whether any injunctive relief is necessary. All that is before the Court in this litigation is
whether there was a violation due to the change of use of the property from a single-
family use to a rooming and boarding house use, without the owner’s having obtained
a zoning permit for that change.
As detailed in the following paragraph, Defendant received payments from
specific occupants of the house, to supply them with sleeping accommodations at the
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property. Defendant did not apply for a zoning permit to use the property as a
rooming and boarding house. Therefore summary judgment must be granted to the
Town in Docket No. 193-8-08 Vtec that there was a violation from at least June 12, 2008,
through and including May 10, 2009, upholding the Notice of Violation and concluding
Docket No. 193-8-08 Vtec, and granting summary judgment to the Town as to the fact of
the violation in Docket No. 274-11-08 Vtec.
For each of the following persons who paid for the use of sleeping
accommodations at the property, the total payment is prorated to provide a daily rate,
for the purpose of calculating an amount obtained by Defendant from each occupant
during the period from June 12, 2008, seven days after the notice of violation, to the
cessation of occupancy (or to the May 10, 2009 date of the information, whichever
occurred later):
Aaron Beliveau –
dates of occupancy: Jan. 1, 2007 through Oct. 15, 2008 (653 days)
total amount paid: $6,904
prorated daily rate: $10.57/day
number of days within violation period: 125
amount paid attributable to violation period: $1,321.59
Nicole Rivers –
dates of occupancy: Jan. 1, 2007 through Oct. 15, 2008 (653 days)
total amount paid: $2,150
prorated daily rate: $3.29/day
number of days within violation period: 125
amount paid attributable to violation period: $411.56
Ryan Beliveau –
dates of occupancy: Jan. 1, 2007 through Dec. 31, 2008 (730 days)
total amount paid: $8,724
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prorated daily rate: $11.95/day
number of days within violation period: 202
amount paid attributable to violation period: $2,414.04
Adam Bosworth –
dates of occupancy: Jan. 1, 2007 through May 10, 2009 (860 days)
total amount paid: $11,600
prorated daily rate: $13.49/day
number of days within violation period: 332
amount paid attributable to violation period: $4,478.14
Eric Bessett –
dates of occupancy: Jan. 1, 2007 through May 10, 2009 (860 days)
total amount paid: $4,430
prorated daily rate: $5.15
number of days within violation period: 332
amount paid attributable to violation period: $1,709.80
Rob Boutin –
dates of occupancy: Jan. 1, 2007 through July 31, 2007, plus May 1, 2008
through May 10, 2009 (585 days)
total amount paid: $6,540
prorated daily rate: $11.18
number of days within violation period: 332
amount paid attributable to violation period: $3,711.59
Brian Metcalf –
dates of occupancy: Dec. 1, 2008 through Jan. 31, 2009 (61 days)
total amount paid: $733
prorated daily rate: $12.02
number of days within violation period: 61
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amount paid attributable to violation period: $733
Larry Lovely –
dates of occupancy: Feb. 2 through May 10, 2009 (97 days)
total amount paid: $950
prorated daily rate: $9.79
number of days within violation period: 97
amount paid attributable to violation period: $950
Material facts may not actually be disputed, but have not been established, as to
whether any occupancy, and/or any payments from any occupants, continued after May
10, 2009, which was the date on which Defendant responded to interrogatories
regarding the occupants and payments to Defendant.
As of June 23, 2009, the date of the summary judgment motion, the Town had
expended $2,499 in attorney’s fees and $250 in costs in connection with Docket No. 274-
11-08 Vtec, and had expended an additional $1,998 in attorney’s fees in connection with
Docket No. 193-8-08 Vtec.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that the Town’s Motion for Summary Judgment is GRANTED in PART, as to the
existence of the violation, concluding Docket No. 193-8-08 Vtec,1 and as to the periods of
occupancy and amounts of payments for that occupancy received by Defendant for
rooms at the property, and as to the amounts expended by the Town regarding
attorney’s fees and costs of this litigation.
Summary judgment is also GRANTED in favor of the Town as to the appropriate
injunctive relief: Defendant shall immediately cease the use of the property as a
1 To avoid any issue of piecemeal appeals, the Court will postpone entering judgment
in Docket No. 193-8-08 Vtec until a judgment order is entered in Docket No. 274-11-08
Vtec.
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boarding and rooming house, until and unless he obtains a zoning permit and any other
necessary approvals required by the Zoning Bylaws, to conduct such a use on the
property.
Summary judgment is DENIED as to the appropriate amount of a penalty;
material facts are in dispute or at least have not yet been established in support of the
factors to be considered by the Court in establishing an appropriate penalty amount.
The trial scheduled for August 20, 2009 ,will still be held, to take evidence on any
issues not resolved by this Decision and Order, and in particular to take any evidence
either party wishes to present on the monetary factors that should go into the
calculation of an appropriate penalty for the time period of the violation.
Done at Berlin, Vermont, this 28th day of July, 2009.
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Merideth Wright
Environmental Judge
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