VT Supreme Court Holds Town was Equitably Estopped from Enforcing Its Zoning Regulations

Langlois owned property in the Swanton Shoreland Recreational Zoning District, with Heller as his abutting neighbor. Langlois spoke with a contractor about adding a pergola to a concrete patio which had been on the Langlois property for about twenty years. Ronald Kilburn, the Swanton zoning administrator, told Langlois that no permit would be needed for the construction. Langlois spent approximately $33,000 on the structure. It was undisputed that the pergola at issue exceeded the zoning regulations’ square footage limitation and the height restriction, and it did not meet the lot line setback requirement. When the Board directed Kilburn to take corrective action, and Kilburn sent Langlois a Notice of Zoning Violation (NOV). The Environmental Division estopped the Town from enforcing its zoning regulations and requiring removal of the pergola.

On appeal, Heller claims that zoning administrator Kilburn did not have knowledge of the facts when he approved the pergola. The court disagreed, finding that since Kilburn to the property, reviewed the sketch, and had knowledge of the zoning regulations, Kilburn had knowledge of ample facts -including the structure’s height, apparent square footage, and apparent proximity to the property line – to accurately determine that a zoning permit was necessary for the pergola. Accordingly, the court found Kilburn had knowledge of the facts sufficient to know that a zoning permit was required for the pergola.
The record reflected that even Heller conceded, “Kilburn is a very experienced and competent legal and zoning professional” with twelve years of service as the Town’s zoning administrator, participated in drafting the Town’s first zoning regulations and was the chair of the Act 250 district commission for the region that includes the Town. As such, the court determined that Kilburn was the “authorized agent of the government” responsible for enforcing zoning regulations, and he gave his opinion knowing that Mr. Langlois would act upon it. Moreover, despite Heller’s contention that the Langlois had general knowledge that a zoning permit was required in some instances, the court found that did not put Langlois on notice that the proposed pergola required a permit. Instead, relying on Kilburn’s statements, Langlois incurred over $30,000 in costs to construct the pergola. Accordingly, the court affirmed, holding that the injustice to Langlois outweighed any negative effect upon public policy that could result from estopping the Town.

In re Langlois/Novicki Variance Denial, 2017 WL 3662437 (VT 8/25/2017)