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In re Langlois

Supreme Court of Vermont

August 25, 2017

In re Langlois/Novicki Variance Denial
Gary Langlois In re Langlois/Novicki NOV Town of Swanton Michael Heller, Appellant

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

          Michael Heller, Swanton, Pro Se, Appellant.

          Katelyn E. Ellermann of Murphy Sullivan Kronk, Burlington, for Appellee Langlois.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Carroll, Supr. J., Specially Assigned

          EATON, J.

         ¶ 1. This appeal involves a dispute between two neighbors-Gary Langlois and Michael Heller-over the construction of an open structure called a pergola on the shore of Lake Champlain in Swanton. The Environmental Division consolidated three related proceedings concerning this dispute and concluded that the Town of Swanton was equitably estopped from enforcing its zoning regulations and that the pergola, which did not comply with those regulations, could remain. We affirm.

         ¶ 2. The facts as found by the Environmental Division are as follows. Langlois owns property on Maquam Shore Road in Swanton, located in the Swanton Shoreland Recreational Zoning District. Heller is his abutting neighbor. Swanton Zoning Regulations require a permit for any land development, which includes enlargement of any building or other structure. Town & Vill. of Swanton Land Use & Dev. Regs., Zoning Bylaws & Subdivision Regs., § 9.1(A)(3) (Jan. 8, 2014) [hereinafter Zoning Regulations], planning--zoning-dept.html []. However, no permit is required for one accessory structure on a property, which can be no larger than 100 square feet, no greater than ten feet in height, and must be set back at least five feet from all lot lines. Id.

         ¶ 3. Sometime in 2014, Langlois spoke with a contractor about adding a pergola to a concrete patio which had been on the Langlois property for about twenty years. In late June 2014, a friend of Langlois, Ronald Kilburn, who was at the time the Swanton zoning administrator, was at the Langlois property for a social visit. At that time, Langlois asked Kilburn if he would need a permit to construct a pergola on the existing patio footprint which was visible to Kilburn. Kilburn, who was also familiar with the property lines, told Langlois that no permit would be needed for the construction. Soon thereafter, Langlois asked a contractor for a sketch and a quote for the construction of the pergola.

         ¶ 4. Once Langlois received the sketch and the quote, he went to the zoning administrator's office, showed Kilburn the sketch, and told him he planned to construct the pergola on the existing concrete patio. The sketch depicted a structure exceeding ten feet in height. Langlois again asked Kilburn if a zoning permit was required. After looking at the sketch and reviewing the zoning regulations, Kilburn again told Langlois that no permit was required.

         ¶ 5. In August 2014, Langlois gave his contractor a non-refundable deposit for the materials to construct the pergola. Langlois had some experience with the Town's zoning regulations because he previously filed a complaint about a neighbor's proposed house site, so before construction began, Langlois spoke with his neighbor, Heller, to tell him of his plans for constructing a pergola. He also told Heller that he had spoken with zoning administrator Kilburn and that no zoning permit was necessary. Heller told Langlois he did not mind if Langlois constructed the pergola but asked that it not include screens. A few days later, Heller's wife sent Langlois an email saying she and her husband had concerns about the pergola and would prefer that it not be constructed. Despite their concerns, neither Heller nor his wife made any complaint at that time to the Town. In September 2014, Heller asked Kilburn if he could construct a similar pergola on his property. Kilburn told Heller that he also could build a pergola on his land without a permit.

         ¶ 6. The Langlois pergola was completed near the end of September 2014. It measures eighteen by twenty feet and is greater than ten feet in height, but it does not extend beyond the patio footprint. The pergola and the concrete patio sit approximately one foot from the Heller property line, but Heller did not file any complaint with the Town during construction. In all, Langlois spent approximately $33, 000 on the structure. Neither party disputes that the pergola exceeds the zoning regulations' square footage limitation and the height restriction, and it also does not meet the lot line setback requirement. Thus, the information provided by Kilburn that no permit was required for the Langlois pergola was incorrect.

         ¶ 7. Things began to unwind when the Town's Selectboard learned in mid-December 2014 that Kilburn had told Langlois that he did not need a permit for the pergola. The Selectboard directed Kilburn to take corrective action, so he sent Langlois a letter in January 2015, acknowledging his previous position that Langlois did not need a permit and Langlois's reliance on that information, and directing him to submit the sketch and file for an after-the-fact zoning permit. In response, Langlois came to the zoning administrator's office and filed for the permit, which Kilburn immediately denied. Langlois applied for a variance and appealed the permit denial to the Town's Development Review Board (DRB). Following a hearing, on April 9, 2015, the DRB denied Langlois's appeal and request for a variance, finding that the pergola did not meet the setback requirement for a permit or the criteria for a variance. Langlois appealed the permit and variance denials to the Environmental Division in early May 2015.

         ¶ 8. In June 2015, Kilburn sent Langlois a Notice of Zoning Violation (NOV), describing the alleged violation as "[t]he [c]onstruction of a building (pergola) on an existing patio which does not meet the setbacks required." The NOV gave Langlois seven days to remove the pergola, after which he would be subject to a daily fine. In late June, the Selectboard removed Kilburn from work on the Langlois violation, and the replacement zoning administrator revised the NOV to require Langlois to remove the pergola by July 23, 2015, at which point penalties would accrue. Langlois appealed the revised NOV to the DRB, which held a hearing, and in December 2015, denied Langlois's appeal, and upheld the NOV. The DRB found that Kilburn acted beyond his authority in telling Langlois that he did not need a permit, that Langlois recognized he needed a permit, and that Langlois's previous experience with the zoning regulations gave him knowledge that a permit was required for the pergola. Langlois appealed this denial to the Environmental Division.

         ¶ 9. In January 2016, while Langlois's appeals were pending, the Town filed an enforcement action against him seeking injunctive relief and penalties in the Environmental Division. The Environmental Division consolidated the appeals-the permit denial and variance, the NOV appeal, and the enforcement action-in July 2016. It upheld the denial of the request for variance, reasoning that under the zoning regulations, Langlois bore the burden of proving that his proposed use satisfied the regulatory criteria and finding that Langlois offered no evidence supporting why a variance should have been granted.

         ¶ 10. The court then considered Langlois's argument that the Town was equitably estopped from enforcing the regulations. The court reasoned that although estoppel against the government is rarely an appropriate remedy, it was justified in this case because the zoning administrator knew sufficient facts to make an informed and correct decision about whether a permit was needed, the zoning administrator intended his opinion to be acted upon, Langlois did not know a zoning permit was required, and Langlois acted to his detriment on the information he received. It further concluded that to not estop the government would result in an injustice that would outweigh any negative public policy that would result from estopping the Town. As a result, the Environmental Division estopped the Town from enforcing its zoning regulations and requiring removal of the pergola. Consequently, it dismissed the NOV and the enforcement action. Heller, participating as an interested party, timely appealed the dismissals of the NOV appeal and enforcement action to this Court.

         ¶ 11. The determination of whether a party is equitably estopped is a legal question which we review de novo. See Vt. N. Props. v. Vill. of Derby Ctr., 2014 VT 73, ¶ 23, 197 Vt. 130, 102 A.3d 1084. Accordingly, this Court will uphold the trial court's legal conclusions as to the applicability of estoppel only when those conclusions are reasonably supported by the evidence. Cold Brook Fire Dist. v. Adams, 2008 VT 28, ¶ 6, 183 Vt. 614, 950 A.2d 1206 (mem.). We defer to the court's factual findings unless, taking them in the ...

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