Posted by: Patricia Salkin | June 26, 2013

VT Supreme Court Finds Single Family Residence Used as a Rooming and Boarding House and Upholds $63,142 Penalty

The owner of a home in Fairfax, Vermont (“Town”), which was his personal residence, also rented the house to others. He used his own bedroom and rented out the rest of his home. He charged occupants a monthly rent on a non-obligatory, month to month basis. In May of 2008, the Town zoning administrator sent the owner a letter informing him that he was in violation of the applicable zoning for by using his property as a rooming-and-boarding house as opposed to a single-family house. The letter told the owner that he needed to either obtain a zoning permit or terminate the illegal use. When he refused to do either, the Town issued a formal notice of violation. After the owner appealed and lost before both the Fairfax Development Review Board and the environmental court, the Supreme Court of Vermont on further appeal remanded the case for the Town to provide evidence of Homeowner’s violation. After additional discovery, both parties filed motions for summary judgment. Ultimately, the environmental court held in favor of the Town, concluding that the owner had violated the zoning laws that required a homeowner to obtain a permit for the operation of a rooming-and-boarding house. The court imposed a $63,142 penalty and ordered the owner to stop his use of the house as a rooming-and-boarding house.

The owner appealed the environmental court’s decision to the Supreme Court of Vermont who on appeal, reviewed the elements of a “rooming-and-boarding house” as defined by the relevant zoning laws. The Court noted that the residence must be occupied by the owner; the owner must be supplying and charging the occupants for meals and/or sleeping accommodations; and the provisions must be for a “fixed period of time.” The first two elements here are undisputed: The owner did reside at the property and did supply and charge occupants for sleeping arrangements. With regard to the third element, he alleged that the non-obligatory, month-to-month rental agreements with the occupants did not constitute a “fixed period of time.”

According to Black’s Law Dictionary, an at-will tenancy is one “without fixed terms.” Vermont case law qualifies this by providing that an at-will tenancy becomes a periodic tenancy through the periodic payment of rent. The court determined that here, the owner’s acceptance of successive monthly rent from the occupants constituted payments over a “fixed period of time.” The court reasoned that it did not matter that Homeowner sometimes accepted services in lieu of monetary payments from the occupants. Since the present situation satisfied all the elements of a rooming-and-boarding house, the court concluded that the owner was in violation of the zoning laws by changing his single-family dwelling into a rooming-and-boarding house without a permit.

Next the owner argued that the statutory definitions of “family” and “rooming-and-boarding house” are unconstitutionally vague. The court noted that while a law may be unconstitutionally vague if it fails to “provide sufficient notice for ordinary people to understand what conduct is prohibited, or allow arbitrary and discriminatory enforcement,”  such test is applied less strictly in cases involving economic as opposed to constitutional rights or when there are other means of ascertaining a more clear definition. Here, however the court indicated that the owner could have sought clarification from the Town but chose not to.

With respect to the definition of “family” which is “one or more persons living as a household unit, but not including individuals or groups occupying rooming-and-boarding houses, clubs, motels, or hotels,” a family does not necessarily need to be a group of relatives — it may include a group of unrelated people living together and functioning similar to a family unit. The owner argued that such a definition would require the Town to invade the privacy of the occupants by following them around to see whether their interactions render them a “family.” The court disagreed stating that a questionnaire could be used to obtain the same information without any physical invasion. The court concluded that overall, the definitions of “family” and “rooming-and-boarding house” do provide sufficient guidance for complying with the relevant zoning laws and as such, they are not unconstitutionally vague.

The final issue reviewed by the court was the $63,142 penalty imposed by the environmental court. The penalty amounted to $56.48 per day that the owner violated the zoning laws, compared to the maximum of $100 per day that the Town is authorized to assess. A court has discretion to set the amount of a fine depending upon certain factors such as the economic benefit to the homeowner and the expense caused to the Town. The Supreme Court of Vermont determined that the trial court properly weighed these factors in its evaluation. Although the owner claimed that a reasonable fine would have been for the price of the necessary permit and that he should only have been fined for any benefits conferred that gave him a competitive economic advantage, the court disagreed determining that economic benefit is not limited to competitive advantages. Moreover, the daily amount the Town charged–$56.48–was reasonable because it was well under the maximum of $100. The court ultimately concluded that the penalty imposed was reasonable because Homeowner chose not to cure the violation when given the opportunity.

In re Beliveu NOV, 2013 WL 2663259 (VT 6/14/2013)

The opinion can be accessed at:


  1. in re: Beliveu Nov. 2013, were tenants awarded “relocation assistance.” awarded to tenants?
    if similar cases are subsequently filed in a superior ct in a different state would the Vt. court ruling be upheld?
    Would discovery of: fire, building, and safety code violations “constituting danger to life or health” , as well as violatipn of rites of warrenty be ruled on and penalties enforced as well

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: