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In re Wood NOV

Supreme Court of Vermont

June 14, 2013

In re Wood NOV & Permit Applications
v.
Marc and Susan Wood Town of Hartford

On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

Paul S. Gillies of Tarrant, Gillies, Merriman & Richardson, LLP, Montpelier, for Appellants.

William F. Ellis of McNeil, Leddy & Sheahan, P.C., Burlington, for Appellee.

PRESENT: Reiber, C.J., Skoglund, Burgess and Robinson, JJ., and Zonay, Supr. J., Specially Assigned.

ROBINSON, J.

¶ 1. Landowner Marc Wood appeals the most recent decision of the Superior Court, Environmental Division in this more than decade-long dispute between the Town of Hartford and landowner concerning, primarily, his construction of a large concrete-slab retaining wall along his and his wife’s property. We affirm.

I.

¶ 2. In order to put the issues presented in this appeal in context, we consider the lengthy history of this dispute. As the environmental court explained in its March 2012 decision below:

[The parties] have engaged in multiple litigations, in multiple courts, over multiple years, all with common themes: whether various plans for development of two adjoining parcels of land along Vermont Route 14 should be approved, whether the development that has occurred is in accordance with either a prior zoning permit or the applicable zoning regulations, and whether Marc Wood’s development of those parcels should be regarded as violating those zoning regulations.

¶ 3. The property in question contains two parcels. One, referred to as the “Diner Parcel, ” includes a building that was previously operated as the Hartford Diner. The Diner Parcel, which is titled solely to Marc Wood, has not been commercially operational in years. The second parcel, owned by Marc and Susan Wood, is referred to as the “Club Parcel.” Within that parcel is a building that was developed as a club facility and used as a local grange lodge. The parties dispute whether the use of the building on the Club Parcel has continued to the extent and in a manner that would allow it to be considered a preexisting nonconforming use. The two properties are dissected by a zoning district boundary line; part of each parcel is within the Village Business Zoning District (VB District) and part within the Village Residential One Zoning District (VR-1 District).

¶ 4. Sometime before 1999, in conjunction with the development of the Woods’ parcels, landowner proposed the construction of a retaining wall along the parcels’ southern and western boundaries. The retaining wall, proposed to reach a height of thirty-five feet, was aimed at increasing the developable portion of the lots, which sloped away from the adjacent highway at a significant angle and thus contained a limited amount of level land that could be effectively developed. As first proposed, the wall was to be constructed of stone, but the proposal was later amended to call for the use of concrete slabs to be recovered from a nearby highway bridge reconstruction project. Landowner hired an engineer, John B. Stevens, to prepare the design for the proposed wall. The design prepared by engineer Stevens included detailed specifications concerning, among other things, the thickness of the slabs, the minimum width, the removal of fixtures or steel from the slabs prior to placement, the placement and construction of transverse joints, the level of the slabs, and the method of cutting the slabs.

¶ 5. On October 14, 1999, the Town approved landowner’s application for a zoning permit to construct the retaining wall. That permit, Permit #99-1180, was not appealed and became final once the appeal period expired. The permit was “issued on the condition that before a Certificate of Occupancy is issued the Engineer of Record, John Stevens, or his assigns, must certify that the concrete slab walls were constructed in accordance with the approved design.” The permit further stated: “The applicants understand that they must make the necessary arrangements during construction to insure that the Engineer will have the necessary information to make this determination.”

¶ 6. In early 2000, landowner began stockpiling the recycled concrete slab sections on the lower portion of the subject property. Concerned that the slabs did not conform to the engineering specifications incorporated into Permit #99-1180, the Town served the Woods with a notice of violation (NOV) and filed an enforcement action with the environmental court. The enforcement complaint was consolidated with an appeal of the NOV and with a property easement dispute between the Woods and the Town. On September 21, 2001, the environmental court issued several orders concerning the consolidated litigation.

¶ 7. In one of the decisions most relevant to this appeal, the court determined that the landowner had failed to “meet the specifications for... the permit as approved” with respect to thickness of the slabs, whether the ends of the slabs had been hammered rather than sawed, and whether steel reinforcing bars were protruding from the slabs. The court acknowledged the possibility that the specifications for the slabs could be amended and the slabs used safely for the project, but cautioned that the Woods “must apply to the permitting authority for approval of the amended certifications.” Landowner appealed the September 21, 2001 environmental court decision to this Court, and a three-justice panel affirmed the decision in May 2002. See Town of Hartford v. Wood, No. 2001-473, 2002 WL 34423566 (Vt. May 29, 2002) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx.

¶ 8. In April 2003, landowner filed an application to amend Permit #99-1180, but the town zoning administrator declined to accept the application, stating that the permit had expired and that, in any case, the application could not be treated as a request to amend the previous permit because of the extent of the proposed changes from the permitted design. Landowner appealed, and in May 2004 the environmental court ruled that 371 days still remained on Permit #99-1180 and that the Town had to “consider the application to amend, which may include a ruling on its completeness.” The court further ruled that the application would be governed by whatever regulations were in effect at the time of the application.

¶ 9. Landowner promptly submitted to the Town a renewed application to amend the permit, including, among other things, a redesigned retaining wall. That application included letters and a revised retaining wall plan by engineer John Stevens. In July 2004, the town zoning administrator rejected the applications as incomplete and informed landowner that his applications would have to include not only completed application forms, but also retaining wall plans from an engineer, a site plan, and a narrative description of how the new plans for the retaining wall differed from the design authorized by Permit #99-1180. Landowner appealed, asking the Zoning Board of Adjustment (ZBA) to find his applications complete and ready for review by the ZBA or the planning commission. The ZBA upheld the zoning administrator’s conclusion that the applications were incomplete, ruling that the amended retaining wall plans had to be approved by the ZBA and the planning commission and that the revised site plan had to be prepared by an engineer.

¶ 10. Landowner appealed to the environmental court, which in April 2006 ruled that the Town’s regulations gave the Town discretionary authority to require landowner to submit a site plan prepared by a professional engineer. The court stated:

[N]othing could have confirmed the need for engineered site and retaining wall plans more than this Court’s site visit, which demonstrated the enormity of [Mr. Wood’s] project and the threat to public safety that [the] project presents if it were to proceed without consultation and approval of a licensed engineer experienced with constructing retaining walls with recycled concrete slabs.

The court also rejected landowner’s challenge to the Town’s application submission policy, ruling that everything required by the Town was authorized in the Town’s zoning regulations. Landowner’s appeal of that decision to this Court was dismissed as untimely filed in July 2006.

¶ 11. Following the environmental court’s April 2006 decision, landowner filed another application with the Town to amend Permit #99-1180. In August 2007, on appeal from the Town’s rejection of the application as incomplete, the environmental court noted that landowner had not contested the Town’s assertion that his most recent application did not include a site plan completed by a licensed engineer. The court reaffirmed the finality of its “prior determination that any amendment of the permit Mr. Wood previously received must include a site plan completed by a Vermont licensed engineer.” Thus, the court declined landowner’s request to reconsider that prior ...


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