Posted by: Patricia Salkin | July 10, 2017

VT Supreme Court Holds Court Exceeded Its Discretion in Ordering Landowner to Remove Equipment Display Area

This appeal involved two cases from the Environmental Division concerning landowner Michael Lee’s property in the Town of New Haven. In the first case, the court rejected landowner’s appeal of a Development Review Board (DRB) decision upholding several violations resulting from landowner’s activities of bringing fill onto his property, creating steep slopes with the fill, creating an elevated equipment display area with the fill within the front-yard setback, bringing storage trailers onto his property, and expanding his parking lot. In the second case, the court found for the Town in an enforcement action and issued an injunction and penalties.
On appeal, the landowner argued that his use of box trailers for storage on the property was allowed as a preexisting nonconforming use. The environmental court found that the box trailers were new structures brought onto the property and therefore required a permit under all relevant zoning ordinances, past and present. The court rejected the claim that the storage trailers were implicitly authorized in the context of the 2006 site plan approval for the proposed warehouses. Here, the landowner’s 2006 site plan did not include any depiction of the storage trailers, and indicated that only two of the fifteen storage trailers that landowner had added by 2013 were on the property at the time of the 2006 proceeding. Additionally, the landowner offered testimony in that proceeding that he intended to bring even more trailers onto the property without zoning approval.
The landowner next contended that there was insufficient evidence to show that the elevated equipment display was constructed between 2009 and 2011. The landowner claimed that it existed prior to 1998 and was grandfathered in. Despite this, the former zoning administrator testified that there was no elevated area in that location prior to the work by landowner, which began some time in 2009 or 2010. This testimony alone supported the court’s finding.
Finally, the landowner contended that the court erred in ordering him to remove “all equipment, parts, and other items from outside storage.” Specifically, he contended that the injunction improperly required him to remove items set up for display at the front of the property even though he was not charged with any violations relative to the items on display. The only potential violation relating to the other equipment and items found around the property was the original claim that landowner was operating a junkyard without a permit. The DRB rejected this claim and the Town did not appeal. Accordingly, the court held that the lower court exceeded its discretion in ordering landowner to remove these items.
Town of New Haven v Lee, 2017 WL 2963317 (VT 6/26/2017)

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