OFFICE OF THE ZONING BOARD OF ADJUSTMENT
Town of Halifax, Vermont
ZBA PUBLIC HEARING MINUTES–DRAFT
January 31, 2018
Vice Chairman Bill Pusey opened the hearing at 7:02 p.m. Zoning Board of Adjustment members Bill Pusey, Patricia Dow, and Alice Aldrich were present; Turner Lewis and Kaitlin Stone were unable to attend. Also present were Town Attorney Robert Fisher, Zoning Administrator Bill Moore, Valerie Ashcroft, Jason Ashcroft, Kathleen Ashcroft, and Robbin Gabriel. Richard Jeffrey arrived between 7:10 and 7:15 p.m.
Attorney Fisher, acting as moderator, introduced himself as Town attorney and advised the purpose of the hearing was to hear the evidence on a notice of appeal and stay of enforcement filed by landowner Bonnie Lemay and Richard Jeffrey, who lives on the property (194 Old Green River Road). The ZBA will have an opportunity to ask questions, and then the Board can either deliberate later tonight or on another date, said Fisher. The two absent members of the Board can listen to the tape and can participate in the deliberations. If the Board feels it needs additional information, it can continue the hearing to another date and receive more evidence. Fisher noted that the ZBA received the appeal of the Zoning Administrator’s decision that was issued on November 24th. That violation notice advised the shed on the property was too large. A subsequent notice of violation issued by the Zoning Administrator, that the shed was not removed by October 31st, 2017 as required by permit conditions, has not been appealed. The warning of the appeal hearing was timed to allow for an appeal of the second violation notice, said Fisher, and had that notice been appealed, the ZBA could have considered both issues at tonight’s hearing.
Fisher asked those present whether they had any evidence to present. Other than it’s still there?, asked Valerie Ashcroft. What does the appeal state?, asked Jason Ashcroft. Bonnie Lemay and interested person Richard Jeffrey appealed Bill Moore’s November decision, replied Fisher, stating that the notice of violation does not provide adequate information for the landowner to ascertain whether the shed on the property is even in violation. That notice stated the shed was too large. The shed can’t be any smaller than it is, because it has to house the water and electric service that serves the primary dwelling. The approval was made to rebuild an emergency shed after the fire. The appeal alleges that the Zoning Administrator said “you’re all set with that,” and the Town now can’t go back on its word. Fisher said the appeal cites a case that does say that, but the facts of the cited case differ somewhat from the current situation. The appeal says just stating the shed is too large is too ambiguous. Jason Ashcroft asked if there was any information about square footage. (Transcriber’s note: At this point Richard Jeffreys arrived and Fisher summarized the proceeding to date for his benefit, before responding to Jason Ashcroft’s question.) The original zoning application, filed May 8, 2017, states that the existing shed dimensions are 12’ x 10’, said Fisher. Is that correct? Bill Moore confirmed. What were the dimensions previously and how do you know that?, asked Fisher. Moore said the original shed (which burned in the fire) was 8’ x 10’, based on lister card information.
Jeffrey said the RV and the shed on the property are listed as temporary structure and temporary residence in order to rebuild, under the grandfather clause, the original size of the home there. He believes neither the town nor the State have any zoning laws governing the temporary structure and residence. As far as I can tell, said Jeffreys, I’m farther back off the road than the original structure was, my shed is farther back off the road than the original structure was. It seems as though there’s been no blockage of the road for the plows or anybody else. Jeffrey went on to say he had set a dumpster on the property, and had spent about $20,000 trying to clean the property up so it could be saved, and Mrs. Lemay would not lose her 20-year mortgage investment. He requested that things be left as they are until summer, when he will get rid of the shed, remove the RV, bring in a single-wide, and finish the project. Jeffrey described a failed plan to purchase an additional acre on the other side of the (Old Green River) road. We own six feet on both sides of the road all the way down to where Old Green River Road starts, he added.
Pusey asked Bill Moore the date of the fire, and what was set up last summer to satisfy the situation with the burned-out car. Valerie Ashcroft recalled the fire occurred in November (2016). Jeffrey said the car title had burned in the fire, and they had to apply for a new title before the car could be moved. After the fire, the RV was brought in, and there were problems with the septic and potable water, Pusey remembered. Jeffrey described rebuilding the water system, and said he had the septic cleaned out and hooked up with PVC pipe. That still doesn’t answer my question, said Pusey. This was temporary housing until something was going to be done by a certain date, was it not? Yes, responded Bill Moore. And the reason it hasn’t been?, asked Pusey. Are you buying the land yourself? (This to Jeffrey.) No, said Jeffrey; Mrs. Lemay is retaining ownership. There are about four years left on the mortgage. Is she (Mrs. Lemay) going to rent to you?, Pusey asked Jeffrey. No, he answered, we’re going to cooperate and probably sell once we get the new single-wide on there. It would be a lot closer to being done right now if I hadn’t had to engage in all of this hoo-rah over the size of a temporary shed. He said his attorney had advised no permits were needed for temporary structures, and referred to a previous Vermont case cited in his appeal.
There are two zoning permits that were issued, said Fisher. One is for the shed which was to be removed by October 31, 2017. The second one deals with the RV, and that one was issued a week later for temporary housing for one year. That permit expires May 17th of this year; it’s not the one we are dealing with tonight. Fisher read the section in the appeal referring to Vermont case law (the Langlois 2017 Supreme Court case), as follows: “. . . that the Town [of Halifax] is equitably estopped from finding a zoning violation based on the Zoning Administrator’s opinion and advice that the shed was a conforming temporary accessory structure.” In the Langlois case, “the Supreme Court held the town was equitably estopped from enforcing its zoning regulations against a landowner where the zoning administrator had knowledge of sufficient facts to determine whether a proposed structure was in conformance with the zoning laws of that town and advised the landowner the proposed structure would be in conformance with the ordinance. The court found injustice would arise if the government were not estopped from enforcing its regulations, as the zoning administrator is charged with knowing the applicable laws better than a citizen. The court found that where a government official charged with administering zoning regulations provides inaccurate advice, the court will not assume that the citizen was nevertheless aware of the [actual] legal requirements.” Fisher said that in the cited case, the zoning administrator advised that the citizen was in compliance, but the administrator was wrong in regard to the ordinance. The property didn’t comply, but the court said that a violation ruling would be unfair because the person had relied on the zoning administrator’s advice. Mr. Jeffrey is making the same argument, but is alleging that Mr. Moore told them the shed was conforming. Did you ever tell them that the shed was conforming?, Fisher asked Moore. No, responded Moore. Jeffrey told the meeting he had no knowledge of Mr. Moore or the Road Commissioner until he brought in his RV. He said he had been told by the Constable that he needed to get the place cleaned up, and about the shed problems, so he went out and bought a very expensive fifth-wheel which is now in place and nicer inside than many homes. Referencing the appeal letter, he reiterated that according to his attorneys the RV and shed are temporary structures and the zoning law does not apply. This seems like an awful lot of discussion over the size of the shed, and I have spent considerable money trying to restore that property and replace the burned-out home and shed, he added. Jeffrey said he had the option of applying for an additional year (on the permit) to continue to finish it, especially since he stopped because of all the arguments and discussions.
The permit was issued for a particular size (12’ x 10’), said Pusey. Was that okay? No, responded Moore, I told him the shed was too big. The permit was never applied for, same with the trailer. Those are both violations, aren’t they?, asked Pusey. Jeffrey said he didn’t know a permit was required. You seem to be arguing Section 407 (of the Halifax Zoning Regulation), said Fisher. That section, titled “Temporary Uses and Structures,” says a temporary permit may be issued by the zoning administrator for temporary structures, listed below, for a period of one year. The section below speaks of emergency rebuilding when a dwelling has been destroyed by natural disasters and states that every effort shall be made by the property owner to comply with all zoning setbacks and requirements. The zoning administrator may permit the establishment of temporary residential dwellings in cases where such setbacks cannot be reasonably met by the property owner. According to Section 407, temporary structures must have a permit. Jeffrey said evidently permits were issued without his knowledge; he had no knowledge of the two permits that were issued. Fisher advised the permit appeared to have been signed by Bonnie Lemay, and received confirmation from Moore that the shed was on the property before the permit application was submitted. Jeffrey asked again that the Town allow the shed to remain until summer, when he would remove it. He said the current structures were set further back from the road than the originals. Do you have a measurement?, asked Alice Aldrich. Jeffrey replied with a description of the property as a non-conforming lot before the fire. He mentioned Mr. Durfey (Bonnie Lemay’s husband) and said neither he nor Durfey had unlimited resources. I’ve already spent over $25,000 trying to recover the property, and hope to recover that when a single-wide is in place and the property is sold. Who will be funding the trailer you’re going to put in there?, asked Pusey. Jeffrey said he would be purchasing the trailer, Bonnie Lemay would put the property up for sale, and he (Jeffrey) would live there until the property was sold. The shed was brought in in one piece, and perhaps the numbers got mixed up, said Jeffrey, adding that Mrs. Lemay is not very technical. Jeffrey told Pusey he had paid for the shed, the RV, and the camping trailer which was on the property prior to the RV. Jeffrey said he was told the camper was unsatisfactory, even though there don’t seem to be any laws about that. There is, replied Aldrich; the State of Vermont says you cannot live in a camper in the winter. The RV has to be gone by May 31st?, asked Pusey. Jeffrey said yes, unless the second year permit was issued. Especially, he added, since I’ve been stopped in mid-construction because of the shed issue. I’ve lost about six months of my time. You could have brought a trailer in last fall, if you had the wherewithal, said Pusey. My wherewithal comes from a trust fund, replied Jeffrey, so I have certain amounts of money available to me when they’re available. He said the RV was within his means to buy. The camper cost $4,000 and the fifth-wheel he’s in now is a 1994 that cost him $10,000. Pusey asked what would happen if, in May, Jeffrey didn’t have the means to put in a single-wide. Then I guess it will have to be all taken off, and Mrs. Lemay will lose the mortgage and her investment, said Jeffrey. Fisher confirmed for Aldrich that the landowner could apply for an additional year’s permit prior to May 31st, 2018.
Fisher asked the neighbors present, and the Zoning Administrator, whether they had anything to add. They did not. Does the Board have anything to add?, asked Fisher. Aldrich advised the permit for the shed gives 10’ x 12’ measurements, and Moore had signed it with a condition it be removed by October 31st, 2017, or snowfall, whichever comes first. If the permit says 10’ x 12,’ does he have a right to have a 10’ x 12’?, she asked. What is the right-of-way footage of the road? Jeffrey said it was an impossible set-back. The right-of-way is 25 feet, and you would be hanging off the back of the lot to meet it. Fisher said the Board could discuss this in deliberation. The shed on the property before the fire was 8’x 10’, he summarized. A new shed was put on the property without a permit, Moore said a permit was required, and Mrs. Lemay came in and put down that 12’ x 10’, which is the dimension of what’s there now. Am I right about that?, he asked. Mrs. Lemay did not come in, said Patty Dow. Mr. Jeffrey came in with the permit and the $150. Moore said Fisher was correct about the permit timeline; when Jeffrey applied for the permit Moore told him he would need to replace the 10’ x 12’ unit with an 8’ x 10’ by October 31st. He (Jeffrey) had six months, but never did it.
Fisher then asked the Board if they needed further evidence, and said if not, the Board could either deliberate tonight or at a later date once the two absent members had reviewed the tape. Pusey said he would direct the Board to take the latter course, with all five members deliberating. The Board set a deliberative session for 6:00 p.m. on Tuesday, February 13, 2018, immediately before the Planning Commission meeting. Jeffrey repeated some of his earlier testimony, and then described his dealings with an electrician and the power company regarding an electrical connection. Pusey told him the full Board would deliberate to the best of their ability.
Aldrich made a motion to close the hearing at 7:50. Pusey seconded the motion, which passed, 3-0. Aldrich made a motion to hold the deliberative session at 6:00 p.m. on February 13, 2018. Pusey seconded the motion, which passed, 3-0.
The meeting closed at 7:53 p.m.