Filed: Feb. 22, 2012
Latest Update: Mar. 03, 2020
Summary: STATE OF VERMONT SUPERIOR COURT—ENVIRONMENTAL DIVISION } Town of Hartford v. Marc & Susan Wood } Docket No. 1-1-11 Vtec } (Municipal enforcement proceeding) } ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ } In re: Wood NOV & Permit Applications } Docket No. 138-8-10 Vtec } (Appeal from Town of Hartford } Zoning Bd. of Adjustment decisions) } Decision on the Merits Marc and Susan Wood and the Town of Hartford have engaged in multiple litigations, in multiple courts, over
Summary: STATE OF VERMONT SUPERIOR COURT—ENVIRONMENTAL DIVISION } Town of Hartford v. Marc & Susan Wood } Docket No. 1-1-11 Vtec } (Municipal enforcement proceeding) } ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ } In re: Wood NOV & Permit Applications } Docket No. 138-8-10 Vtec } (Appeal from Town of Hartford } Zoning Bd. of Adjustment decisions) } Decision on the Merits Marc and Susan Wood and the Town of Hartford have engaged in multiple litigations, in multiple courts, over m..
More
STATE OF VERMONT
SUPERIOR COURT—ENVIRONMENTAL DIVISION
}
Town of Hartford v. Marc & Susan Wood } Docket No. 1-1-11 Vtec
} (Municipal enforcement proceeding)
}
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
}
In re: Wood NOV & Permit Applications } Docket No. 138-8-10 Vtec
} (Appeal from Town of Hartford
} Zoning Bd. of Adjustment decisions)
}
Decision on the Merits
Marc and Susan Wood and the Town of Hartford 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. The two above-referenced Dockets
represent the parties’ latest round of litigation. Each party asserts that they wish that these
proceedings will bring some finality to their disputes. The Court intends to do so by rendering
this Merits Decision.
These proceedings were consolidated for trial, which was conducted over three days.
The Court accompanied the parties on a site visit prior to trial. William F. Ellis, Esq. assisted the
Town of Hartford (“the Town”) in these consolidated proceedings; Paul Gillies, Esq. assisted
Marc and Susan Wood.
Docket No. 138-8-10 Vtec concerns Marc Wood’s (“Appellant”) appeal from decisions
rejecting his two recent zoning permit applications and upholding a notice of an alleged zoning
violation (“NOV”) he was issued by the Town. Docket No. 1-1-11 Vtec concerns the Town’s
prosecution of Marc and Susan Wood based on that NOV. Given that the NOV is premised
upon alleged zoning violations that have the longest history, the parties proposed and the Court
agreed to first receive evidence at trial concerning the NOV and the Town’s enforcement action
that is the subject of Docket No. 1-1-11 Vtec and then to receive evidence concerning the two
zoning permit applications Appellant submitted for consideration that are now the subject of
the combined appeal in Docket No. 138-8-10 Vtec.
Based upon the evidence admitted at trial, including that which was put into context by
the site visit the Court conducted with the parties1 and their counsel, the Court renders the
following Findings of Fact and Conclusions of Law, as well as a Judgment Order that
accompanies this Merits Decision.
Findings of Fact
I. Background: “Diner Parcel” and “Club Parcel”
1. Marc and Susan Wood (“the Woods”) own two adjoining parcels of land along Vermont
Route 14, which is also known as Maple Street in this section of the Town. One parcel,
identified as Grand List Parcel No. 32-0005-000, is located at 1472 Maple Street and held solely
in Marc Wood’s name. This parcel was previously developed with a commercial building
known as the Hartford Diner. We hereinafter refer to this parcel as “the Diner Parcel.”
2. The Hartford Diner has not been operational for a number of years. It was significantly
damaged by fire several years ago. While it has been the Woods’ plan, at various times, to
reconstruct and rehabilitate the Diner building as a commercial facility, the building’s
renovation has not been completed. Appellant now seeks authority to construct and use a
single-family dwelling on the Diner Parcel.
3. Another parcel, jointly owned by the Woods, abuts the Diner Parcel. This second parcel
is identified as Grand List Parcel No. 32-0004-000 and is located at 1498 Maple Street. It was
previously developed with a former club facility that was previously used by the Cascadnac
Grange #507. We hereinafter refer to this parcel as “the Club Parcel” and refer collectively to
the Diner and Club Parcels as “the Parcels.” The parties agree that the use of the club facility
does not conform to the current Town of Hartford Zoning Regulations (“the Regulations”), but
disagree as to whether Appellant’s use of the building has continued in a sufficient enough
manner so as to allow for its continued use as a lawful, pre-existing non-conformity.
4. The Woods’ properties are dissected by a zoning district boundary line that is set back
from the center line of Maple Street by about 100 feet. A majority of the Woods’ Parcels are
within the Village Business Zoning District (“VB District”). The southern portion of the Parcels
1
Susan Wood did not attend the site visit or any day of trial, and it does not appear that she participated in the
proceedings below.
2
lies in the Village Residential One Zoning District (“VR-1 District”). See Boundary Survey,
admitted as Town Exhibit 3(a).
5. Both of the Woods’ Parcels are bordered to the north by Vermont Route 14 (a/k/a
Maple Street). When the Woods first acquired the Parcels, the grade of both Parcels was
shallowest nearest to Maple Street with a steep slope falling to the Parcels’ southern boundary.2
This southern boundary runs along another Town road known as Mill Hill Road.3 The
difference in elevation of the Parcels’ northern and southern boundaries is approximately forty
feet, running north to south. The Parcels are not uniform rectangles; for instance, the Club
Parcel has a narrow western boundary that is measured by the parties as either 48.23 feet or
65.93 feet and the Diner Parcel has an angled eastern boundary of approximately 100 feet. See
Town Exhibit 3(a) and Appellant’s revised site map, admitted as Appellant Exhibit L.
6. The Woods’ Parcels have a limited amount of level land near Maple Street, which
restricts the portion of each lot that can be effectively developed. Appellant therefore decided
to attempt to increase the developable portion of both Parcels by constructing a retaining wall
along, on, and over most of the southern boundary of both Parcels. Appellant also proposed to
continue the wall parallel to a portion of the western boundary of the Club Parcel.
II. Retaining Wall (Permitted and As Built)
7. The Woods first proposed the construction of a retaining wall along their southern and
western boundaries sometime prior to 1999. The retaining wall, as first proposed, was to be
constructed of stone, stacked to make a wall that would angle back into the Parcels. The angle
of the wall was intended to provide greater strength against the wall toppling to the south, onto
the adjacent Town road and private properties. See Appellant Exhibit M.
8. Appellant subsequently amended his proposal so as to use concrete slabs, instead of
stone, in the wall construction. The concrete slabs were to be harvested from a nearby Interstate
91 highway bridge reconstruction project. Appellant’s engineer, John B. Stevens, prepared the
design for the proposed concrete slab wall. The design included the following specifications:
3. The slabs shall be reinforced concrete, obtained from a bridge rehabilitation
project with a minimum thickness of 10 inches. Only slabs that have been sawn
2
The photos admitted as Town Exhibits 14 and 15 show the steep slope of the Parcels as of May 22, 2000, which
was after Marc Wood had begun work on the site, but before completion of the concrete slab wall, discussed below.
3
While undisputedly a Town road, Mill Hill Road is not sufficiently developed so as to allow vehicular travel. Mill
Hill Road abuts the southern boundary lines of both Parcels. At the southeast corner of Appellant’s Diner Parcel,
Mill Hill Road overlaps a more well-established Town road: Ferry Boat Crossing, a/k/a Albert Drive.
3
and have maintained their integrity during removal may be used; hammered
slabs are unacceptable. The minimum width of an acceptable slab is 8 feet. . . .
Any fixtures or steel shall be removed prior to slab placement if another slab will
bear on it. Transverse joints shall have a width of approximately 2 to 4 inches
and filled with pea gravel for drainage purposes. Transverse joints shall be offset
at least 3 feet from the joint above and below. Curb or non-curb slabs may be
used on the outside face of the wall and only non-curb sections may be used
behind the face. Slabs shall be set level or tilted so that the end furthest from the
wall face is lower than the front face.
Town Exhibit 7 at 1.
9. The Woods’ engineer’s design of the proposed wall provided for a footing made of
uniform concrete slabs, placed in areas excavated below the existing ground elevation, to
support the base of the wall. Town Exhibit 7 at 1. The design also provided for uniform
concrete slabs, stacked in such a manner so that the exterior face of the wall would slope back
into the Parcels and rise at an angle from a base elevation of 365 feet to 397 feet. Id. The top
western corner of the proposed wall was designed to support the foundation of a relocated
building on the Club Parcel.
Id. at 2.
10. An engineer hired to assist the Town in evaluating the design of the proposed concrete
slab wall opined that:
. . . [B]ased on previous calculations and our own analysis for the previous dry-
laid stone wall, we think this [concrete slab] wall probably has a reasonable
Factor of Safety against failure. The Engineer of Record, John Stevens, should
make certain that this is so.
At the completion of the project, the Engineer of Record should certify
that the concrete slab walls were constructed in accordance with the design.
Consequently, the Engineer of Record, or his representative, should monitor the
construction sufficiently close so that he is willing to make that certification.
Corresp. of Carl A. Childs, P.E., dated Sept. 28, 1999, admitted as Town Exhibit 8.
11. Based upon the Woods’ engineer’s design and the review of the design by the Town’s
engineer, the Woods’ application for a zoning permit for their proposed wall was approved on
October 14, 1999. That permit became known as Permit #99-1180, copies of which were
admitted as Town Exhibit 5 and Appellant Exhibit I. No appeal of that permit was filed; Permit
#99-1180 became final after the appeal period expired. That permit also authorized other
construction on both Parcels and permitted several uses for the to-be-completed buildings. The
provisions of Permit #99-1180 that authorized the construction of the proposed wall are the
most material to these proceedings.
4
12. Permit #99-1180 specifically references the revised design for the concrete slab wall
construction and notes that:
This permit is 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 [sic] were constructed in accordance with the approved
design. 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.
Town Exhibit 5 and Appellant Exhibit I at 1.
13. Appellant thereafter began collecting concrete slabs from the highway reconstruction
project and storing the slabs on his parcels for later use. The Town became concerned that the
slabs Appellant was stockpiling on his property did not conform to the engineering
specifications Appellant submitted and that the Town relied upon in granting Permit #99-1180.
14. The Town thereafter served the Woods with a notice of violation and filed an
enforcement complaint with this Court (Town of Hartford v. Marc and Susan Wood, Docket
No. 72-3-00 Vtec). That enforcement complaint was consolidated with the Woods’ appeal of the
underlying notice of violation (In re Appeal of Marc and Susan Wood, Docket No. 91-5-00 Vtec)
and a property easement dispute between the Woods and the Town that was originally filed in
Windsor Superior Court (Town of Hartford v. Marc and Susan Wood, Docket No. 219-5-00
Wrcv).
15. In a decision on the consolidated litigation, this Court entered judgment for the Town
and against the Woods; its judgment was based upon the following findings:
The specifications approved in the permit for the retaining wall were a
dry-laid sloping concrete slab wall, with slabs meeting the following three
specifications: 1) minimum slab thickness of 10 inches; 2) only slabs that have
been sawn and have maintained their integrity during removal may be used;
hammered slabs are unacceptable; and 3) any steel shall be removed prior to slab
placement if another slab will bear on it. . . .
Defendant-Appellants have acquired slabs from highway reconstruction
projects, and have stockpiled the slabs at the site. The slabs range from seven (7)
to ten (10) inches in thickness. The ends of some of the slabs have been
hammered rather than sawn. Steel reinforcing bars (rebar) protrude from the
ends of the slabs. For these three reasons they do not meet the specifications for
the slabs in the permit as approved.
Town of Hartford v. Marc and Susan Wood, Nos. 72-3-00 Vtec, 91-5-00 Vtec, and 219-5-00 Wrcv,
slip op. at 2 (Vt. Envtl. Ct. Sept. 21, 2001) (Wright, J.).
5
16. This Court, in its 2001 Decision and Order, further opined that the concrete slabs
stockpiled on the Woods’ property could possibly be “used safely” for a retaining wall, but that
they must first apply for and receive an amended permit. Id. at 2–3.
17. Following the 2001 Decision and Order, Appellant chose to construct a retaining wall
along, on, and over the southern and western boundaries of the Diner and Club Parcels in a
manner not in conformance with the Permit #99-1180 specifications and without first obtaining
an amended or new permit to authorize the wall as actually constructed.
18. As constructed by Appellant,4 the retaining wall differs from the design prepared by his
engineer (see Town Exhibit 7) and the specifications incorporated in Permit #99-1180 in the
following material respects:
a. The concrete slabs actually used are by no means uniform in length, width or
thickness,5 as depicted in the engineer’s plan (Town Exhibit 7) and as
specified in the notes on that plan. Slab thickness varies from seven to ten
inches; the length and width varies as well, and many of the slabs have
uneven surfaces, resulting in non-uniform stacking.
b. The transverse (i.e., vertical) joints where the concrete slabs meet are not
offset, as directed by the engineer’s plans. See Town Exhibit 7 and Town
photos admitted as Town Exhibits 27, 29, 31, and 32. This lack of offset
compromises the physical integrity of the wall as constructed. Most all of
these joints have uneven vertical surfaces.
c. All of the vertical joints between the stacked slabs are wide and open; the
space between parallel stacks of slabs is much wider than the two to four
inches specified in the engineer’s design, and the pea stone that the design
requires to be used to fill the two- to four-inch joints does not appear to have
been installed. See Town Exhibit 7.
d. Most all of the slabs appear to have been hammered, resulting in uneven
edges and joints where the slabs abut one another. Few of these vertical ends
appear to have been sawn as the engineer required in his plan. See Town
Exhibit 7.
e. The stacked slabs appear to rise in a direct line, nearly ninety degrees from a
level plane at the base of the wall. The wall as constructed does not respect
the engineer’s directive that the face of the wall be angled back into the
Parcels, nor does the as-constructed wall respect the engineer’s directive that
the “[s]labs shall be set level or tilted so that the end furthest from the wall
face is lower than the front face” of the wall. Town Exhibit 7 at 1. As a
4
Appellant testified that he performed the actual construction of the retaining wall on his property with the use of a
crane and other equipment he brought on site and with the occasional help of others. Appellant admitted that he is
not an engineer, by license or training, and that he did not have the prior expertise or experience to construct a wall
of this height or significance.
5
See photo of a portion of the wall along the southern boundary, admitted as Town Exhibit 34.
6
consequence of how the wall was actually constructed, it appears more likely
to teeter, and possibly fall, than it would be if constructed as designed.
f. Appellant offered no certification that the hammered, rather than sawn,
concrete slabs maintained their integrity after having been broken apart in
such a manner.
g. The wall as constructed is materially taller in height (by two feet on one end
and ten feet on the other) than the wall as designed. The total height of the
wall ranges from 10 feet to more than 30 feet.
h. The wall construction is not yet completed, as Appellant readily admitted.
Permit #99-1180 has now expired, however, and the Woods no longer have
authority to build the wall as permitted.
i. In addition to failing to complete the wall construction, the Woods have
failed to provide an engineer’s certification that the wall as constructed
(though incomplete) was constructed in compliance with Permit #99-1180.
j. The most credible evidence shows that Appellant constructed this wall not
wholly on his land, but also on the adjoining land owned by the Town
and/or others.6 See hatched area depicted on Town Exhibit 3(a).
k. Models prepared by Appellant and admitted into evidence of the wall as
constructed (Appellant Exhibit T) and the wall as designed and approved in
Permit #99-1180 (Appellant Exhibit W) fail to show that the wall was
constructed as designed. They also do not support Appellant’s assertion that
the wall as constructed is safer and more secure than the wall as designed.
In summary, the wall as constructed by Appellant materially deviates from the wall as
designed by Appellant’s engineer, the design that Permit #99-1180 gave Appellant the authority
to build.7
19. These deviations from the engineered design create the risk that the wall as constructed
is less stable than it would be if it had been constructed in accordance with Permit #99-1180.
The failure of this wall, were it to occur, could seriously injure or kill people in the path of
falling debris. Also, the failure of the wall could cause significant property damage to the
adjoining Town properties and highways, and the adjoining private properties and homes.
6
In making this factual determination, we do not intend to over-step our jurisdictional limitations. Rather, we
reach this factual conclusion only because the most credible evidence presented was that Appellant conceded that he
constructed part of the wall on land owned by the Town.
7
This Court reached this same conclusion in In re Wood Certificate of Occupancy Request, Appellant’s appeal of
the Town’s denial of his request for a certificate of occupancy for the wall as constructed. No. 176-8-07 Vtec, slip
op. at 2 (Vt. Envtl. Ct. June 10, 2009) (Durkin, J.) (concluding that Marc Wood was not entitled to a certificate of
occupancy because “[i]t is indisputable that his project had not been completed in accordance with Permit #99-
1180”).
7
20. Appellant has failed to acknowledge or express appreciation in these legal proceedings
for the material differences between the wall as constructed and the wall as designed and
permitted, and for the significant damage that could be caused by these construction deviations.
III. The Town’s Latest NOV
21. The Town served Appellant with an NOV dated March 19, 2010 (“the 2010 NOV”),
giving notice of zoning violations based generally upon a failure to construct the retaining wall
on his Diner and Club Parcels in conformance with Permit #99-1180. The 2010 NOV advised
Appellant that he could “cure the violation” by submitting verification, within seven days,
“confirming that on or before noon, May 24, 2010, [he would] submit a complete application
and applicable fee to bring [his] property into compliance with Hartford’s current Zoning
Regulations.” Thus, the Town provided Appellant with an opportunity to cure the noticed
zoning violations within 66 days. A copy of the 2010 NOV was admitted as Town Exhibit 17.
22. The 2010 NOV is only addressed to Appellant, that is, to Marc Wood. There was no
evidence presented that the Town addressed the 2010 NOV to Susan Wood or served her with
it.
23. Appellant did not submit the verification as requested; nor did he submit a complete
application to cure as requested.
24. The 2010 NOV also provided details of what Appellant’s future application would need
to include, at a minimum, to be considered a complete application. Appellant had, by the time
he was issued the 2010 NOV, experience in what a complete zoning application must include
because he had litigated that issue in two prior appeals to this Court.8
25. The 2010 NOV specified that if Appellant wished to submit an application to bring his
wall into conformance with the applicable Regulations, Appellant must include the following
documentation with his application:
a. A slope stabilization plan prepared by a Vermont licensed engineer;
b. Certification from a licensed engineer of the existing wall’s design, structural
stability, and actual construction, if Appellant intended to keep the retaining
wall as constructed; and
8
These prior appeals proved unsuccessful for Appellant. The Court upheld the Town of Hartford Zoning
Administrator’s determination that Appellant’s prior applications to amend Permit #99-1180 were not complete
because of his failure to submit necessary plans and certifications from a licensed engineer concerning the non-
complying wall. See In re Appeal of Wood, Nos. 185-10-04 Vtec and 174-8-05 Vtec, slip op. at 14−16 (Vt. Envtl.
Ct. Apr. 13, 2006) (Durkin, J.).
8
c. A site plan prepared by a Vermont licensed engineer, if site plan approval
and/or conditional use approval would be necessary for Appellant’s plans.
See Town Exhibit 17.
26. The 2010 NOV further advised Appellant that if he failed to cure the alleged violation,
the Town would institute an enforcement action in this Court and “seek appropriate injunctive
relief and fines of $100.00 per day for each day [his] violation continues.”
IV. Appellant’s Response to the Town’s Latest NOV
27. In response to the 2010 NOV, Appellant submitted an application to the Zoning
Administrator. In the section of the application form where an applicant is asked to describe
the “Type of Work Proposed,” Appellant responded: “Permit to bring my property into
compliance with Zoning Reg’s [sic] as it pertains to the Retaining Wall.” Appellant’s
application only listed the property at 1498 Maple Street (i.e., the Club Parcel) as the subject
property. A copy of Appellant’s application, dated April 2, 2010 and including supporting
documentation, was admitted as Town Exhibit 18.
28. The Zoning Administrator reviewed Appellant’s 2010 application and six supporting
exhibits and returned the application, supporting documents, and check to Appellant with her
letter of April 9, 2010, a copy of which was admitted as Town Exhibit 19. By this letter, the
Zoning Administrator advised Appellant that she was returning his application and check
because she had deemed Appellant’s application incomplete:
a. The Zoning Administrator indicated that since the retaining wall was already
partially constructed and located on both of Appellant’s Maple Street
properties (the Diner and Club Parcels), any application for a zoning permit
for the wall must include specifications for the wall “in its entirety.”
b. The Zoning Administrator further advised that if Appellant wished to
resubmit his application concerning the wall as constructed, he must include
with his resubmitted application the following:
i. The full application fee ($40.00);
ii. A slope stabilization plan prepared by a Vermont licensed engineer and
certification from a licensed engineer of the design, structural stability,
and construction of the existing wall in its entirety, as required under
Regulations § 260-28(D); and
iii. A written acknowledgement from Appellant that he is financially
responsible for the technical review of his application by an engineer
hired by the Town (pursuant to Regulations § 260-51) and that Appellant
is responsible for addressing any concerns raised in this review.
Town Exhibit 19 at 1.
9
29. Appellant chose not to submit a complete application as the Zoning Administrator
directed. Instead, Appellant appealed the Zoning Administrator’s April 9, 2010 determination
that his wall renovation application was incomplete to the Town of Hartford Zoning Board of
Adjustment (“the ZBA”). His appeal to the ZBA was assigned Application #12-10.
30. Appellant also appealed the March 19, 2010 NOV to the ZBA; his NOV appeal was
assigned Application #07-10. The ZBA coordinated the proceedings for Appellant’s NOV
appeal with the proceedings for his appeal contending that Application #12-10 was incomplete.
V. Appellant’s Application for Single-Family Development of the Diner
Parcel
31. Appellant also filed an application concerning further development on the Diner Parcel.
A copy of this application, with supporting documents, was admitted as Town Exhibit 20. By
this application, Appellant sought authority to construct and use a single-family dwelling on
the Diner Parcel.9
32. The Zoning Administrator reviewed this application and determined that it was also
incomplete. By letter dated April 22, 2010 (admitted as Town Exhibit 21), the Zoning
Administrator advised Appellant that she was returning his application for the following
reasons:
[Since the single-family dwelling] proposal relies on the construction of a
retaining wall on [both Parcels] that was not built in conformance with the
permit authorizing its construction (permit #99-1180) . . . , the application for a
single-family dwelling on [the Diner Parcel] is incomplete; a zoning permit for a
single-family dwelling or any other use on this lot will not be complete until such
time a permit is obtained for the retaining wall.
An application for a permit for the retaining wall must include:
• A design of the entire existing retaining wall, including a plan accurately
depicting the location and height of the wall, proposed grading related to the
wall, and any other engineering and design elements that relate to the design
of the wall. In addition, the plan must accurately depict property lines,
existing/proposed buildings, vehicular access points, location of the zoning
district boundary line, rights-of-way, and easements. The design and plan
must be prepared and stamped by a Professional Engineer licensed by the
State of Vermont.
• A slope stabilization plan prepared and stamped by a Professional Engineer
licensed by the State of Vermont.
9
It is unclear to the Court whether Appellant intended to remodel the former Hartford Diner building into a single-
family dwelling, or if he wished to wholly remove this structure and construct a new single-family dwelling. This
factual discrepancy is immaterial to our analysis of the legal issues in these consolidated proceedings.
10
• Certification by a Professional Engineer on the design, structural stability,
and construction of the existing retaining wall as required under section 260-
28 D* of the Zoning Regulations. This certification needs to reference the
plans and designs outlined above.
• Written confirmation that [Appellant] understand[s he is] responsible for the
full cost of a technical review of [his] application as provided for under
section 260-51 of the Zoning Regulations; that [he] must address any concerns
relating to this review to the satisfaction of the town; and pay for the full
expense of the review before [his] application for a zoning permit will be
deemed complete.
*In Commercial Districts, retaining walls over 42 inches in height shall require
the issuance of a zoning permit and certification by a professional engineer on
their design, structural stability, and construction. In Residential and Rural
Districts, a permit shall be required for such walls only when the distance
between the wall and any boundary or easement line is less than twice the height
of the wall.
See Town Exhibit 21.
33. Appellant chose not to resubmit his application in the manner directed by the Zoning
Administrator. Instead, Appellant appealed the Zoning Administrator’s April 22, 2010
determination to the ZBA.
34. The ZBA assigned Application #13-10 to Appellant’s appeal concerning his application
for authority to construct a single-family dwelling on the Diner Parcel. The ZBA coordinated
the proceedings for this appeal with the proceedings for Appellant’s two other appeals (those
concerning the 2010 NOV and Application #12-10), conducted a duly warned hearing, and
issued three separate decisions on Appellant’s appeals on July 19, 2010.
35. By its July 19, 2010 decisions, the ZBA upheld the Zoning Administrator’s
determinations in each of the appeals. The ZBA concluded that Application #13-10 was
incomplete, that there was a sufficient factual and legal basis for the 2010 NOV, and that
Application #12-10 was incomplete. Appellant thereafter filed a timely appeal with this Court;
his appeal of the ZBA decision on these three applications was assigned Docket No. 138-8-10
Vtec.
VI. The Town’s Enforcement Action
36. The Town initiated an enforcement action against the Woods on January 3, 2001. The
Town’s complaint generally recites the facts pertaining to Permit #99-1180, cited above,
including Appellant’s failure to construct the retaining wall as designed and permitted. The
11
Town also alleges that Appellant conducted other development on the two Maple Street Parcels
without authority to do so and in violation of the applicable Regulations, including renovations
and other work to the buildings on the Diner and Club Parcels.
37. It is beyond dispute that Appellant constructed the retaining wall on the Diner and Club
Parcels in disregard of both the engineered design the Woods submitted in support of their
original application and the permit that issued in reliance on their plans and representations.
The wall as constructed materially deviates from the wall as designed and permitted in the
manner detailed in our Findings ¶¶ 18(a) through (k), above.
38. The Town’s basic premise that Appellant failed to construct the retaining wall in the
manner it was designed and permitted was established by the facts presented at trial and
supported by the following prior determinations of this Court:
a. Town of Hartford v. Marc and Susan Wood, Nos. 72-3-00 Vtec, 91-5-00 Vtec,
and 219-5-00 Wrcv, slip op. at 2 (Vt. Envtl. Ct. Sept. 21, 2001) (Wright, J.)
(concluding that concrete slabs stockpiled on site deviated from those
required by the approved plans in three material ways: (1) slab thickness; (2)
slabs had been hammered rather than sawn and their integrity was not
certified; and (3) steel rebars protruded from the ends of the slabs), aff’d on
other grounds, No. 2001-473 (Vt. May 29, 2002) (unpublished mem.).
b. In re Appeal of Wood, Nos. 185-10-04 Vtec and 174-8-05 Vtec, slip op. at 1, 9–
11, 13–16 (Vt. Envtl. Ct. Apr. 13, 2006) (Durkin, J.) (concluding that Marc
Wood’s second and third application to either amend Permit #99-1180 or
seek a new permit for the retaining wall as constructed were incomplete
because the revised wall design was required to be completed by a licensed
engineer).
c. Town of Hartford v. Wood, Nos. 72-3-00 Vtec, 121-7-03 Vtec, 185-10-04 Vtec,
81-4-07 Vtec, and 176-8-07 Vtec, slip op. at 14–15 (Vt. Envtl. Ct. Mar. 6, 2008)
(Durkin, J.) (concluding that Permit #99-1180 had expired and that Marc
Wood’s fifth application to amend Permit #99-1180 to authorize the retaining
wall as constructed was deficient because his site plans were deficient).
d. In re Wood Certificate of Occupancy, No. 176-8-07 Vtec, slip op. at 2 (Vt.
Envtl. Ct. June 10, 2009) (Durkin, J.) (concluding that Marc Wood’s material
deviations from the permitted design when constructing his retaining wall
foreclosed his claims to a certificate of occupancy for the wall).
39. Appellant failed to “make the necessary arrangements during construction to insure that
[his] Engineer will have the necessary information” to certify that the concrete slab wall was
constructed in accordance with the approved design,” as directed by Permit #99-1180. Town
Exhibit 5 and Appellant Exhibit I (emphasis added).
12
40. Appellant Exhibit L (the revised site plan) includes a certification and stamp from
Appellant’s engineer. However, that certification confirms that Appellant constructed a wall or
walls that differ materially from the wall authorized by Permit #99-1180. Appellant did not
retain his engineer to inspect the wall during construction. Instead, Appellant directed his
engineer to complete his certifications concerning the retaining wall by relying only upon the
engineer’s brief site visit and Appellant’s off-site representations. For these reasons, we found
the engineer’s testimony and written certifications not credible and not relevant to the material
factual issue: whether Appellant constructed the retaining wall in conformance with
Permit #99-1180.
41. In addition to the retaining wall, from 1999 through 2010, Appellant completed other
development on the Diner and Club Parcels, including renovations and other work to the
buildings on those Parcels, without permit approval and in contradiction of the Regulations.
42. During trial, Appellant alleged that the retaining wall on his property was not a single
wall, but three separate walls, labeled as walls “A,” “B,” and “C.” See Appellant Exhibit L.
This assertion, made now well after Permit #99-1180 has expired and after the Town has
commenced its enforcement action, has no factual foundation in either Appellant’s designs or
actual construction of the wall.
43. Lastly, Appellant offered a partial defense to the Town’s enforcement action by asserting
that he has continually used the building on the Club Parcel, thereby entitling him to continue
to use it as a lawful, pre-existing non-conformity. Appellant’s assertion lacks any credible
factual foundation. The evidence supplied at trial establishes the following facts which indicate
that Appellant’s use of the Club parcel building has been sporadic and is best characterized as
abandoned:
a. The Cascadnac Grange #507 last used the building on the Club Parcel just
prior to Appellant’s purchase of that property in the late 1990s. Use of this
building as a club then ceased; Appellant offered no credible evidence that
the building has since been used except for his intermittent use in the last few
years. Use of the building has been abandoned on several separate occasions
for more than two years.
b. The building is in an unstable and unsafe condition. There are voids in the
foundation, which partially rests near the uncompleted, unpermitted
retaining wall. Access to the building is unsafe and difficult due to the
condition of the front of the building.
13
c. There is no heat or electricity in the building, and the building’s prior
connection to the Town wastewater and water supply systems has been
disconnected for years. Many windows have been broken by vandals.
d. In the thirteen years that Appellant has owned the building, he has never
requested nor received a certificate of occupancy for its use. When
Appellant’s counsel questioned a Town official as to why he had not
inspected the Club Parcel building or issued a certificate of occupancy, the
Town official advised that he does not inspect abandoned buildings. That
official’s characterization of the building as abandoned was credible and the
most accurate assessment of the building, given its condition.
44. Having abandoned the use of the Club Parcel building for over 180 days, Appellant had
an obligation under Regulations § 260-54(c)(3) to apply for and receive a new zoning permit if
he wished to resume a use that did not conform to the current Regulations.10 Appellant chose
not to apply for, nor did he receive, such a permit.
VII. The Town’s Claims for Relief
45. Appellant maintains that Permit #99-1180 allows him to use and develop his property in
the manner in which he has used and developed it for the previous twelve years. His
arguments are unfounded, since he never constructed the retaining wall on his property in
compliance with that Permit.
46. The Town has expended immense amounts of staff time and resources over the course
of many years in direct response to Appellant’s construction of his retaining wall in
contradiction with the design plans he submitted to the Town, Permit #99-1180, and his
obligation to abide by the applicable Regulations.
47. Most recently, in response to Appellant’s non-compliance with the directives contained
in the 2010 NOV (Town Exhibit 17) and up until the time of trial, the Town has been required to
spend in excess of $50,000.00, as itemized on Town Exhibit 55. This sum reflects only the
amount expended for legal services provided to the Town and directly related to Appellant’s
non-compliance since the 2010 NOV was issued. The sum does not include the expenditures of
time and resources by Town staff, including time and resources spent monitoring and
responding to Appellant’s most recent zoning violations. The evidence presented convincingly
shows that the amount of time and resources spent by the Town staff, while not specifically
itemized, was considerable.
10
Regulations § 260-54 provides that a lawful, pre-existing non-conforming use is deemed abandoned if there are
more than 180 days of non-use.
14
48. A total of 513 days accrued from the deadline contained in the 2010 NOV for Appellant
to provide confirmation of his intent to cure to the first day of trial. Because the NOV was
dated March 19, 2010, and Appellant was given seven days to confirm his intent to cure with
the Town, Appellant’s first day of violation was March 27, 2010. The first day of trial was
August 22, 2010.
Discussion
The Court, following the efforts of the parties, has attempted to present the relevant and
material facts in these consolidated proceedings in an organized fashion. This task has not been
easy, as is evidenced by the Findings presented above and the nearly twelve years that this and
related litigation has encompassed. Despite this complexity, the current litigation presents us
with the following basic legal questions: whether it is a violation of the Regulations for
Appellant to develop his land in a way that does not conform to a previously issued permit, and
whether it is a violation of the Regulations for Appellant to complete other development that is
premised upon the prior work conducted in contradiction of that prior permit. For the reasons
stated below, we answer both of these questions in the affirmative, concluding that Appellant
has committed serious zoning violations.
A. Appeal of the 2010 NOV
The Town’s Regulations provide that “[n]o land development, as defined in § 260-59,
may be commenced without a permit . . . .” Regulations § 260-4. When a zoning permit issues,
only the development specified in the permit is authorized; if a landowner wishes to conduct
development other than that which is authorized by the permit, the landowner must seek an
additional permit or permit amendment to do so. Id.
Here, Permit #99-1180 authorized Appellant to construct a single retaining wall
travelling along the southern and western boundaries of both Parcels, solely in the manner
detailed in the design prepared by Appellant’s engineer. Both Appellant and his engineer
conceded that the retaining wall Appellant actually constructed differs greatly from that design.
The various arguments and explanations Appellant offers that other work was authorized
outside of that sanctioned by Permit #99-1180 has no foundation and was not credible.
The Town’s engineer provided the most credible analysis of the deficiencies in the wall
Appellant constructed and the risks and dangers that exist because of those deficiencies. His
15
report was admitted as Town Exhibit 23 and provides the foundation for many of this Court’s
factual and legal conclusions.
It is difficult for the Court to overstate the gravity of Appellant’s actions. He has
constructed a wall along, on, and over the boundaries of his property that does not conform
with his own design plans. The wall rises at a much steeper vertical angle than his plans
require. Appellant’s own engineer, when called upon to do so at trial, could not calculate the
vertical angle of the wall that Appellant actually constructed. The wall includes hammered
concrete slabs of varying length, width, and thickness and with uneven surfaces, the integrity of
which has never been verified. The concrete slabs are stacked higher than specified in the
design and in a manner so that the vertical joints between the slabs are in line, rather than offset,
as directed by Appellant’s engineer. The vertical joints are wide and open, larger than the
engineer specified, and apparently not filled in by pea stone as required. The weight of the
concrete slabs was not estimated at trial but is obviously many tons.
Because the wall was constructed along, on, and over Appellant’s boundary line, any
failure of the wall may cause it to topple onto adjacent Town properties and highways, and
adjacent private properties and homes. Failure of the wall could cause serious property loss
and personal injury, including death. The Court is at a loss to recall another zoning violation
that has come before it with the potential for such great calamity.
Appellant’s most recent argument is that he actually constructed three walls, not one
continuous wall, and that, because of this, he is not in violation of the Regulations. This
argument is unfounded. We note that the Town’s enforcement action is premised upon its
claims that Appellant did not construct his retaining wall in conformance with Permit #99-1180
and that none of the various applications Appellant presented provide design details for an
alternate wall or walls. The wall Appellant actually constructed belies his present claim that he
constructed three walls: the actual wall as constructed is clearly a single wall.
Importantly, Appellant’s argument is premised upon a faulty legal analysis. He argues
that since two of his three walls are located in the VR-1 District, he is not obligated to obtain a
permit for them. But his legal argument here is founded upon a misinterpretation of the
applicable provision in the Regulations. Regulations § 260-28(D) provides that in a residential
zoning district, a permit is required for a retaining wall “when the distance between the wall
and any boundary or easement line is less than twice the height of the wall.” This provision
16
appears premised upon a common-sense safety precaution: if a wall that was built without a
permit was to fail, at least it would be located far enough away from a boundary line so as to
limit damage or injury to others. Appellant constructed his wall along, on, and over the
southern and western boundary lines of his Parcels. We therefore do not need to complete the
mathematical analysis to determine if Appellant’s proposed walls “B” and “C” needed a permit.
Since the wall (or walls) as constructed is located along, on, and over the nearest boundary line,
and ranges from 10 feet to more than 30 feet high in places, the wall (or walls) is closer to the
nearest boundary than its height. Appellant’s wall (or purported three separate walls) was
constructed in violation of Regulations § 260-28(D).
Once Appellant constructed a non-conforming retaining wall, he was the cause of the
frustrations he thereafter faced when attempting to secure permits for future development of
his parcels. The Town reasonably required that Appellant include in any subsequent permit
applications the design and construction details for the as-built or to-be-modified retaining
wall, certified by an engineer as required under the Regulations, before those applications could
be considered complete. See Regulations §§ 260-28(D) and §260-51. Instead of satisfying the
technical certification requirements, Appellant chose to appeal the Zoning Administrator’s
determinations that his applications were incomplete. Given that his applications (#12-10 and
#13-10) relied upon an unpermitted retaining wall, the Zoning Administrator had a right, even
a duty, to require that Appellant submit verification from an engineer that the retaining wall
Appellant constructed would meet safety standards. Appellant still has not provided
engineering details indicating either the integrity of the wall as constructed or a plan for
modifying his wall.
B. The Town’s Claims for Injunctive Relief and Penalties
Having concluded that Appellant has committed serious zoning violations, we now
consider the appropriate relief to be afforded the Town. First, Appellant must be ordered to
safely remove the offending wall and all other unauthorized improvements. We reach this
conclusion because Appellant has shown an inability to construct the wall as permitted. When
confronted with his non-compliance, Appellant has refused to cure the deficiencies and has
been unable to supply a complete, comprehendible application for either an amendment to his
now-expired permit or for a new zoning permit. The Court recognizes Appellant’s fortitude
17
and perseverance. But Appellant has shown, above all else, that he is unwilling to respect the
Regulations and the public health and safety that those Regulations were enacted to protect.
We therefore conclude that Appellant must be required to either contract with a third
party to remove the offending wall or remove the wall himself. Whether the work is completed
by a qualified third-party contractor or Appellant, the work must be overseen by a professional
engineer who is licensed by the State of Vermont and who submits weekly reports to the Town
Zoning Administrator. These reports must detail the wall demolition work, starting from the
day that work begins and continuing until the wall removal is complete. The work may only
begin after Appellant’s engineer submits a detailed plan for the work and the Town accepts or
approves that plan. Once work begins, the engineer’s weekly certifications must identify the
work completed since his last report and any material deviations from the approved plan.
Our authority to enjoin a zoning violator derives from 24 V.S.A. § 4452, which provides
that in an action brought on behalf of a municipality against a zoning violator, this Court may
“prevent, restrain, correct, or abate that construction or use . . . .” Interestingly, these provisions
differ from those authorizing the imposition of fines in that a municipality is not obligated to
provide notice and an opportunity to cure to someone against whom the municipality is
seeking injunctive relief. Compare 24 V.S.A. § 4451 with 24 V.S.A. § 4452. Thus, we are
authorized to impose injunctive relief not only against Appellant, but also against Susan Wood,
in her capacity as co-owner of the Club Parcel, even though she was not named in or sent the
2010 NOV.
The relief we grant to the Town here is guided by specific precedent that directs that
injunctive relief is appropriate when the zoning violation is “substantial” or is the result of
“conscious wrongdoing.” Town of Sherburne v. Carpenter, 155 Vt. 126, 131-32 (1990).
Appellant here has certainly committed serious zoning violations and has done so after
repeated notices and demands from the Town that he cease his non-compliant construction.
Appellant continued the construction of his non-complying retaining wall and building
renovation long after receiving the Town’s various notices, including the 2010 NOV. The
standards authorizing injunctive relief established in Carpenter have unquestionably been met
here. We therefore direct that the Woods remove the offending wall and cease all development
activities on their Parcels. We specifically enjoin the Woods from conducting development on
their Parcels until they have received permit authority to do so.
18
We now turn to the Town’s request that penalties also be assessed against Appellant for
his zoning violations.11 Vermont municipalities are authorized to enforce their zoning
regulations and to prosecute individuals who violate those regulations. See 24 V.S.A. §§ 4451,
4452, 4454. In addition to the injunctive relief authorized by these statutory provisions,
Vermont municipalities are also authorized to demand that a zoning violator pay a fine of up to
$100.00 for each day the zoning regulation continues. 24 V.S.A. § 4451(a). The municipality is
required to give prior notice and an opportunity to cure of “at least seven days’ warning notice
by certified mail.” Id. This Court is charged with determining what level of fine should be
assessed against the zoning violator.
Id.
Section 4451(a) provides us with some parameters for an appropriate penalty by
establishing that this Court may impose a penalty of “not more than $100.00 per day for each
offense.” We have held that this provision implies that “we reserve a fine of $100.00 per day for
the most egregious of zoning infractions.” In re Huntington NOV Appeal and Town of
Bradford v. Huntington, Nos. 204-8-06 Vtec and 209-9-06 Vtec, slip op. at 8 (Vt. Envtl. Ct. Mar.
18, 2008) (Durkin, J.); see also Town of Hinesburg v. Dunkling,
167 Vt. 514 (1998). Fines
authorized by 24 V.S.A § 4451(a) are civil in nature; they must not be punitive and they must be
“rationally related to the damages suffered from landowner’s violation of [the] Town’s bylaw.”
Id. at 528. It is beyond dispute that, in light of Appellant’s persistent avoidance of his
obligations to abide by Permit #99-1180 and the applicable Regulations, the Town has incurred
considerable expense, including expenditures for both legal services and staff time and
resources, to compel Appellant’s compliance, and that Appellant’s continued non-compliance
puts neighboring properties and people at risk of suffering considerable damages.
As discussed above, Appellant has committed serious zoning violations and Appellant’s
construction of the non-conforming retaining wall and other improvements represent some of
the most egregious violations this Court has witnessed. However, in light of the injunctive
relief we are also imposing against the Woods, we conclude that $10.00 per day is an
appropriate fine. Thus, we assess a total fine against Appellant as a consequence of his zoning
violations, and the violations as represented in the 2010 NOV, of $51,300.00. This fine
assessment will at least partially reimburse the Town for what Appellant caused the Town and
11
We decline to impose penalties against Susan Wood, since she was not named in nor sent a copy of the 2010
NOV. We interpret 24 V.S.A. § 4451(a) as requiring those steps in order for a municipality to seek penalties against
a zoning violator.
19
its officers to expend in public monies, time, and effort in response to his serious zoning
violations.
C. Completeness of Applications #12-10 and #13-10
By his Application #12-10 Appellant sought a “[p]ermit to bring [his] property into
compliance with Zoning Reg’s [sic] as it pertains to the Retaining Wall.” Town Exhibit 18. In
support of this application, Appellant attached copies of his prior site plan, dated October 1,
1998, and his engineer’s design for the wall Appellant first proposed, consisting of dry-laid
stone. Appellant did not construct that wall, as he readily admitted at trial. He also attached to
Application #12-10 a copy of a letter from his engineer, dated March 6, 2007, in which his own
engineer advised that “[t]here is a difference between the plans and the constructed wall . . . .”
Town Exhibit 18.
Appellant offered no details of the wall he actually constructed nor of the corrections or
modifications he intended to complete to bring his wall into compliance with the Regulations.
Appellant has left the Zoning Administrator, the ZBA, and this Court to wonder what specific
work he intends to perform to ensure compliance with the Regulations.
Because of the location and height of Appellant’s wall, he was required to provide
“certification by a professional engineer on [the wall’s] design, structural stability, and
construction.” Regulations § 260-28(D) (requiring such certification for retaining walls more
than 42 inches high). Appellant provided none of these certifications. As is authorized by
Regulations § 260-51, the Town employed an engineer to conduct “an independent technical
review” of Appellant’s application submissions and the wall he actually constructed. That
engineer provided the most credible assessment of Appellant’s retaining wall and confirmed
that Appellant’s current applications (both Applications #12-10 and #13-10) fail to provide the
necessary certifications and specifications that would ensure that whatever wall Appellant
hoped to complete would be safe and in compliance with the Regulations. We conclude that
Appellant’s Application #12-10 is materially deficient. The Zoning Administrator was
obligated to deem this application incomplete and return it to Appellant.
We reach a similar conclusion as to Application #13-10. Appellant’s plans to develop
the Diner Parcel for single-family use rely upon the wall that he has already constructed on that
Parcel. That wall violates the Regulations and does not comply with Permit #99-1180, which
had expired at the time Appellant submitted Application #13-10. When Appellant submitted
20
this application, he failed to provide any of the engineer certifications and design specifications
for the wall he had actually built or for the wall as modified by work he intended to complete.
As the Zoning Administrator properly concluded, no development may be allowed on the
Diner parcel, or either of the Woods’ Parcels for that matter, without Appellant first providing
the necessary engineering designs and certifications concerning the retaining wall. We
conclude that Appellant’s Application #13-10 is materially deficient. The Zoning Administrator
was obligated to deem this application incomplete and return it to Appellant.
Conclusion
Accordingly, based on the foregoing, the following is hereby ORDERED and
ADJUDGED:
A. Marc Wood’s applications to bring his retaining wall on the Club Parcel into
compliance (Application #12-10) and to develop a single-family dwelling on the
Diner Parcel (Application #13-10) are incomplete, since neither application
includes the necessary engineering details or design specifications for his
retaining wall, either as actually constructed or as proposed, and neither
application includes the necessary certifications by a Vermont licensed engineer.
We therefore DEEM BOTH APPLICATIONS INCOMPLETE.
B. The notice of alleged zoning violations, dated March 19, 2010 and served upon
Marc Wood by the Town of Hartford Zoning Administrator, has a sufficient
factual and legal foundation and is therefore UPHELD. As a consequence of
committing the zoning violations evidenced by the 2010 notice of violations,
Marc Wood shall pay to the Town of Hartford penalties in the total amount of
$51,300.00.
C. As a consequence of the zoning violations they committed or allowed to be
committed on their Diner and Club Parcels, Marc and Susan Wood are hereby
ORDERED to immediately cease all construction activities and other
development on their Parcels and not begin any development on those Parcels
without first consulting with the Town of Hartford Zoning Administrator to
determine if a zoning permit is required for their proposed activities. If a permit
is necessary, Marc and Susan Wood cannot begin such development without first
submitting a complete application for a zoning permit to the Town of Hartford
Zoning Administrator or the appropriate municipal panel and receiving the
necessary permits. Any future development on these Parcels shall only occur in
strict conformity with any issued and outstanding zoning permits.
D. Marc and Susan Wood shall remove the retaining wall located on the Diner and
Club Parcels, and all other unauthorized improvements on these Parcels, either
themselves or by hiring a qualified third-party contractor to do so. In the event
that either Marc or Susan Wood, or the both of them, conduct this removal work
themselves, they shall hire a professional engineer, licensed by the State of
Vermont, to conduct daily inspections of all the work they conduct. Whether the
21
Woods conduct the removal work themselves, or hire a qualified third-party
contractor to do so, thye must also hire a Vermont licensed professional engineer
to file weekly reports with the Town of Hartford Zoning Administrator, detailing
and certifying the removal work conducted each week until such work is
complete. Such certifications shall specify the work completed since any prior
certification and disclose any material deviations from any engineering plans
approved by the Town.
E. Prior to beginning the removal work directed in ¶ D, above, Marc and Susan
Wood shall cause a Vermont licensed professional engineer to submit to the
Zoning Administrator a plan for the safe removal of the wall and unauthorized
improvements on the Diner and Club Parcels as well as a bank stabilization plan
that will dictate necessary safety precautions to be taken both during the removal
period and after removal. Both of these plans must be submitted, in writing, to
the Town of Hartford Zoning Administrator thirty days after the engineer is
selected in accordance with ¶¶ F and G, below. The removal work directed in
¶ D, above, must be completed in conformance with these plans and cannot
commence until thirty (30) days after receipt of the plans by the Zoning
Administrator or until the Town approves such plans (whichever date is later),
as described in ¶ H, below.
F. The engineer whom the Woods employs for all of the work directed in ¶¶ D and
E, above, is subject to the approval of the Town. If the parties are unable to agree
on the engineer to be employed, each party shall submit the names and resumes
of one or more engineers acceptable to them to the Court and the Court will
thereafter select the engineer that the Woods shall employ to complete this work.
G. Marc and Susan Wood shall submit to the Town of Hartford Zoning
Administrator the name and resume of the engineer they wish to employ for all
of the work directed in ¶¶ D and E, above, within thirty (30) days after the
Judgment Order that accompanies this Decision becomes final. If it wishes to do
so, the Town shall then have fifteen (15) days to give written notice to the Woods
of its rejection of their engineer. If the Town provides a timely notice of its
rejection of the Woods’ engineer, an engineer shall be selected pursuant to ¶ F,
above.
H. The Town shall have thirty (30) days from its receipt, as directed in ¶ E, above, of
the engineer’s plans to give written notice to Marc and Susan Wood and their
engineer of any concerns or objections to such plans. The lack of such written
notice from the Town shall constitute its approval of the plans. If the Town
raises concerns about or objections to the plans, Marc and Susan Wood shall
work with the Town to resolve the issues in a timely fashion and to adjust the
plans, if necessary, so that the Town is able to approve them. If the parties are
unable to resolve any material disagreement as to the design plans, the parties
shall submit their disagreement for resolution by the Court.
I. The engineer’s plans required in ¶ E, above, shall specify a reasonable period of
time for the removal and bank stabilization work to begin and be completed. In
the event that the engineer specifies more than sixty (60) days, the engineer must
specify the reasons for the delay.
22
J. Once all work is completed, Marc and Susan Wood shall employ the engineer to
conduct the necessary final site inspections so that the engineer may certify to the
Town and this Court that all work necessary for the removal of the retaining wall
and unpermitted improvements is complete and the resulting earthen bank is
stable.
This completes the current proceedings before this Court. A V.R.C.P. 58 Judgment
Order accompanies this Decision.
Done at Berlin, Vermont, this 22nd day of February, 2012.
Thomas S. Durkin, Environmental Judge
23
