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In re Beliveau NOV

Supreme Court of Vermont

June 14, 2013

In re Beliveau NOV
v.
Leon Beliveau Town of Fairfax

On Appeal from Superior Court, Environmental Division Merideth Wright, J.

Peter J. McDougall of Paul Frank Collins P.C., Burlington, for Appellant.

John H. Klesch of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

SKOGLUND, J.

¶ 1.Homeowner appeals the Superior Court, Environmental Division’s grant of summary judgment in favor of the Town of Fairfax and imposition of associated penalties. The court upheld the Town’s violation, finding that homeowner changed the use of his property from a single-family dwelling to a rooming-and-boarding house without obtaining a change-of-use permit as required by the applicable zoning bylaws. Homeowner contends: the trial court erred in finding that the property was used as rooming-and-boarding house; the definitions of family and rooming-and-boarding house in the Town’s zoning bylaws are unconstitutionally vague; and the court improperly assessed the accompanying fines. We affirm.

¶ 2. As found by the environmental court, homeowner owns a house in the Town of Fairfax. He uses his home as both his personal residence and as a rental property. He maintains a bedroom for his exclusive use and rents the remaining portions of his home. Homeowner began providing sleeping accommodations in his home, charging for and receiving payments for those accommodations sometime around June 2008. Occupants paid a set monthly rent based on the oral agreement formed between each occupant and homeowner. Neither homeowner, nor occupant was obligated to continue the rental relationship beyond the month for which rent was currently paid.

¶ 3. In May 2008, the zoning administrator for the Town personally served homeowner a letter informing him that his house was impermissibly employed as a rooming-and-boarding house as a result of his failure to obtain the requisite zoning permit for the change in use from a single-family dwelling. Homeowner was informed that he could cure the violation by either “obtaining all the necessary permits and approvals or by terminating the use.” Homeowner did neither. The zoning administrator issued a formal notice of violation for the unpermitted change in use on June 5, 2008.

¶ 4. Homeowner appealed the violation to the Fairfax Development Review Board, which found that the homeowner “did change the use of the home... from a single family home to a Rooming/Boarding house without obtaining the required permits.” Homeowner then appealed the Board’s decision to the environmental court. Soon thereafter, the Town filed an enforcement action with the court against homeowner. [1] On June 24, 2009, the Town filed a motion for summary judgment, which the court granted, upholding the violation. The court entered a judgment against homeowner and levied a penalty in the amount of $22, 770 against homeowner.

¶ 5. Homeowner appealed the environmental court’s decision to this Court. In July 2010, this Court reversed the environmental court’s decision and remanded the case for additional proceedings, finding that the Town provided no evidence “that [homeowner] resided in the home during the period in question” and “failed to demonstrate that individuals were supplied with and charged for sleeping accommodations ‘for a fixed period of time’ ”—both necessary elements of the rooming-and-boarding definition in the Town’s zoning bylaws, as discussed in detail below. In re Beliveau Notice of Violation, Nos. 2010-064, 2010-065, 2010 WL 7795009, at * 2 (Vt. July 16, 2010) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/Microsoft%20Word%20-%20eo10-064.pdf.

¶ 6. On remand, the parties conducted additional discovery, and then both filed cross-motions for summary judgment. The environmental court granted summary judgment in favor of the Town, determining that homeowner had changed the use of his house from a single-family residence to a rooming-and-boarding house without first obtaining a permit for the rooming-and-boarding-house use. The court imposed a penalty of $63, 142 against homeowner and ordered the immediate cessation of use of the property as a rooming-and-boarding home. Homeowner appeals.

¶ 7. This Court reviews decisions on motions for summary judgment de novo. Mooney v. Town of Stowe, 2008 VT 19, ¶ 5, 183 Vt. 600, 950 A.2d 1198 (mem.). A grant of “[s]ummary judgment is appropriate when, giving the benefit of all reasonable doubts and inferences to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gade v. Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7, 187 Vt. 7, 989 A.2d 491. “When both parties move for summary judgment, each is entitled to the benefit of all reasonable doubts and inferences when the opposing party’s motion is being judged.” City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332, 980 A.2d 226 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48, 582 A.2d 123, 125 (1990)).

¶ 8. Our review of environmental court decisions is deferential. In re Sardi, 170 Vt. 623, 623, 751 A.2d 772, 773 (2000) (mem.). This Court is bound by the environmental court’s interpretation of a zoning ordinance unless it is clearly erroneous, arbitrary, or capricious. Badger v. Town of Ferrisburgh, 168 Vt. 37, 39, 712 A.2d 911, 913 (1998).

¶ 9. Homeowner challenges the environmental court’s determination that as a matter of law his property was used as a rooming-and-boarding house. The zoning bylaws define a rooming-and-boarding house as “[a]n owner occupied residence where a person or persons, for a fixed period of time, are supplied with and charged for meals or sleeping accommodations or both.” For a property to be rendered a rooming-and-boarding house under the bylaws, each of the three elements must be met: (1) the residence must be occupied by the owner; (2) a person or persons must be supplied with and charged for meals or sleeping accommodations or both; and (3) such provisions must be for a fixed period of time. It is undisputed that at all relevant times, the property was homeowner’s primary residence. It is also undisputed that other individuals living at the property were provided with, and charged for, sleeping accommodations. Homeowner contends that because individuals staying at the premises were ...


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