STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION

} In re Richard Notice of Violation } Docket No. 151-9-10 Vtec } }

Decision and Order on Cross-Motions for Summary Judgment Appellant Donald Richard appealed from a September 8, 2010 decision of the Development Review Board (DRB) of the Town of Colchester, upholding a notice of violation issued to him on June 24, 2010 for the operation of a marina on his condominium property in violation of the Colchester Zoning Regulations (Zoning Regulations). Appellant is represented by John L. Franco, Jr., Esq.; the Town of Colchester is represented by Thomas G. Walsh, Esq. and Annie Dwight, Esq. Interested parties Roland and Brenda Pepin, Jeffrey Lefebvre, and Steve Senesac have entered appearances representing themselves.

Appellant and the Town have each moved for summary judgment. The Pepins and Mr. Lefebvre have also filed memoranda addressing the pending motions. The following facts are undisputed unless otherwise noted.

Factual and Procedural Background The Sunset Beach Condominium is a three-unit residential condominium development with a free-standing single-family house on each of the units. The condominium development is located between Lake Champlain (to its west) and the roadway of East Lakeshore Drive (to its east), in the Residential-2 zoning district and the Shoreland overlay zoning district of the Town of Colchester. Appellant currently owns the two most northerly units of the condominium; another owner owns the southernmost unit. The northernmost of Appellant’s two units has the address of 1355 East Lakeshore Drive and is the sole address that is the subject of the Notice of Violation at issue in this appeal.^[1]

The Sunset Beach Condominium was established by Appellant and the other original property owners by a Declaration of Condominium executed in late 1997 and recorded in the Town’s land records on February 10, 1998. Town’s Ex. G. The condominium is governed by the Sunset Beach Condominium Association, which has not entered an appearance in this case. The membership of the condominium association is composed of the unit owners; each unit’s owner is entitled to a single “vote equal to the undivided percentage of the Common Elements pertaining to [that] Unit.” Town’s Ex. G, at 11.

The Declaration of Condominium provides each unit with limited common elements comprised of the common elements upon which each unit is located, down to the “lakefront.” Town’s Ex. G, at 6. The limited common elements of Unit 1 measure 75 feet in width, extending northerly from the southerly boundary of the condominium development, and the limited common elements of Unit 2 consist of the next northerly adjacent 55 feet in width, and the limited common elements of Unit 3 consist of the next northerly adjacent 67 feet in width. Without a map or plan it is not possible to determine whether any condominium development property remains as common elements northerly of Unit 3, that is, of 1355 East Lakeshore Drive.

Each unit’s owner is entitled to the exclusive use of that unit’s limited common element and any income derived from its use, and is responsible for the cost of its maintenance or repair. The Declaration of Condominium also entitles each unit’s owner “to construct a dock on the lake adjacent to [that unit’s] respective Limited Common Elements provided that the same complies with all applicable federal, state and municipal laws regarding the same.” Town’s Ex. G, at 6. Appellant has constructed a dock in the Lake in front of the house at 1355 East Lakeshore Drive.

Interested persons’ Roland and Brenda Pepin’s property is located along the Lake immediately northerly of the Sunset Beach condominium development. Interested person Steve Senesac’s property is located to the east across East Lakeshore Drive from the condominium development. Interested person Lefebvre’s property is located along the Lake to the north of the Pepins’ property. Appellant also owns two parcels of undeveloped land lying across East Lakeshore Drive from his condominium units.2 Some of Appellants’ and interested persons’ property was at one time part of a larger Lefebvre lot, formerly leased for seasonal dwellings, which obtained a 1989 Act 250 permit to subdivide the property into fourteen residential lots for sale, as well as an open space lot.3

2 Material facts are disputed or have not been provided to the Court, as to the extent to which Appellant allows people to use these parcels for parking when obtaining access to the Lake for the purpose of mooring or docking boats, or the extent to which these parcels have rights of access to the Lake for the purpose of mooring or docking boats. Access to the Lake for any other purpose is not material to the Notice of Violation at issue in this case. 3 If the history of the property and of its use for access to the Lake is at all material to the Notice of Violation at issue in this case, it only relates to whether any Appellant’s dock and its adjacent moorings and boat lifts are used to dock or moor at least nine boats. Some of the boats belong to individuals living in the Sunset Beach condominiums; others belong to individuals who live within walking distance of the dock, including three who live on the east side of East Lakeshore Drive.

On June 23, 2010, a representative of the Planning and Zoning Department conducted a site visit at Appellant’s condominium. On June 24, 2010, the Zoning Administrator sent Appellant a Notice of Violation notifying him that he was “operating a marina on [his] property located at 1355 East Lakeshore Drive without proper permits or approvals.”4 The Notice of Violation stated that “[t]his operation is in violation of Article 12 (p. 18) and Table A-1 of the Colchester Zoning

particular use of any part of it for access to the Lake qualifies as a nonconforming use that predates the provisions of the Zoning Regulations regulating “marinas.” 4 The Zoning Regulations define the term “marina” as “any shoreline property” used to provide either (or both) of the following: (a) Access to public waters for docking or mooring of five (5) or more boats with or without other services; or, (b) A small-craft harbor complex providing access to public water characterized by such activities as boat manufacture, construction or repairs, sales, rentals, chartering, derricks, docks, wharves, moorings, marine railways, boat storage and other marine-type facilities and commercial services which may include the sale of food or other services clearly incidental to the operation of the marine based activities. The definition of the use category “marina” also requires that a marina have 150 feet of shoreline frontage. If a marina accommodates boats with sleeping facilities, it is required to provide shore-based facilities for the “pumping and/or disposal” of wastes. The definition further requires that a marina not create a “hazard to navigation,” that it not “interfere with or prevent use of adjacent shoreland property” or access from the water to that property or to that property from the water, and that a marina be “compatible” with adjacent land uses and not create a “nuisance by reason of noise or fumes.”

Regulations, copies of which are enclosed.”5 Table A-1 lays out the use categories that are allowed in each zoning district, whether as a permitted use or as a conditional use; page 18 contains the entire definition of the term “marina. Although the Notice of Violation only referred to page 18 and Table A-1 as being enclosed, page 19 was also provided, containing the bulk of the definition of “Marine Association, Residential.” 6

The Notice of Violation gave Appellant fifteen days to cure the violation, stating that “[t]o cure this violation you must cease the marina operation.” The Notice warned him that his failure to “correct this violation” within the fifteen-day time period “may result in the issuance of a Vermont Municipal Complaint (ticket) with fines.” The notice also informed Appellant of his right to appeal the Zoning Administrator’s “interpretation of the above[-]referenced Zoning Regulations” to the DRB within 15 days.

Appellant appealed the Notice of Violation to the DRB, which issued a decision on September 8, 2010 upholding it as being for “the operation of a residential marina without proper approvals or permits.” The present appeal followed.

Statutory Authority

The Town lacks jurisdiction to regulate uses in Lake Champlain; the parties do not dispute this principle. In re Svendsen Dock Extension Variance, No. 1-1-09 Vtec, slip op. at 5, (Vt. Envtl. Ct. October 14, 2009) (Durkin, J.). The Lake is subject only to state and federal regulation, unless the state has delegated authority to a municipality, which it has not done in this instance.8 Svendsen, No. 1-1-09 Vtec, slip op. at 5. The Town’s lack of jurisdiction in Lake Champlain means that it may not regulate the location, number, or nature of the dock, moorings or docking berths maintained in the Lake. Svendsen, No. 1-1-09 Vtec, slip op. at 7.

Although the Town lacks authority to regulate the moorings or dock maintained by Appellant in Lake Champlain, it does have the authority to regulate the use of the shorelands within its boundaries. 24 V.S.A. §§ 4411(a)(1); 4414(1)(D). Specifically, the Town may regulate through its zoning provisions the use of lands within the Shoreland overlay zoning district, including the structures located on them, and may regulate access through such lands to public waters. 24 V.S.A. § 4411(a)(1); see also 24 V.S.A. § 4411(b)(3)(B) (town may use zoning map to regulate, restrict, or prohibit uses at or near natural bodies of water); 24 V.S.A.

§ 4414(1)(D)(ii) (“Shoreland bylaws . . . may impose other requirements authorized by [24 V.S.A. ch. 117]”); Svendsen, No. 1-1-09 Vtec, slip op. at 6 (town may “regulate shoreland use and reserve access to public waters”).9

The Town may thus determine which uses are allowed within the Residential-2 zoning district and the Shoreland overlay zoning district, and may require prior conditional use review, 24 V.S.A. § 4414(3), and site plan review, 24 V.S.A. § 4416, for those allowed uses. The Zoning Regulations may restrict and regulate the shore-based features of marinas in the Residential-2 zoning district and the Shoreland overlay zoning district.

The use category of “marina,” which may adjoin any type of shore property and which may involve commercial marine-related services and activities, has the potential to be a more intensive use than the use category of “residential marine association,” which is restricted to use by the owners of residences in the association and which excludes commercial marina services. In the Residential-2 zoning district, neither marinas nor residential marine associations are listed as permitted uses, that is, neither is eligible for a permit from the Zoning Administrator without prior DRB approval. Table A-1. Marinas are also not allowed as a conditional use in the Residential-2 zoning district, although residential marine associations are allowed as conditional uses in all five of the Residential zoning districts, including the Residential-2 district, as well as in the General Development 1 zoning district. Table A-1.10 Site plan approval is also required for approval of a marina in any district. § 8.03.

Neither the site plan review standards nor the conditional use review standards regulate the docking or mooring facilities provided by a marina. §§ 8.07, 8.10(E). Thus, because the Zoning Regulations do not regulate the location, quantity, or other aspects of the docking and mooring facilities provided by marinas, they do not exceed the Town’s statutory authority; summary judgment is therefore GRANTED to the Town on this issue.

moorings or berths that will require the adjacent parcel of shore land, which provides access to such moorings or berths, to obtain approval from the DRB to operate as a marina.

Accordingly, the Zoning Regulations as to marinas do not violate the public trust doctrine or the constitutional right to equal protection of the law; summary judgment is therefore GRANTED to the Town on this issue.

use of the Lake, interstate or otherwise. Appellant may put boats into the water in front of his condominium unit, or may put boats into Lake Champlain at public access points or at permitted private marinas or at an appropriate permitted residential marine association. Although the Zoning Regulations do limit the location of marinas serving five or more boats to certain zoning districts, that limitation does not affect Appellant’s right to travel on the Lake. See, e.g., Town of Southhold v. Town of East Hampton, 477 F.3d 38, 54 (2007) (noting that there is no constitutional right to the most convenient form of travel) (internal citations omitted).

Finally, no provisions of the Zoning Regulations either directly or indirectly penalize individuals such as Appellant for exercising their right to travel on Lake Champlain. See Soto-Lopez, 476 U.S. at 904 (describing how residents are indirectly penalized if the timing of their migration to a state causes them to be treated differently from other residents regarding an entitlement such as food stamps or welfare).

Therefore, the regulation of marinas in the Zoning Regulations does not violate or infringe on Appellant’s constitutional right to travel on Lake Champlain; summary judgment is GRANTED to the Town on this issue.

Violation did not sufficiently inform him of the factual basis for his alleged violation of the Zoning Regulations, and therefore did not sufficiently inform him of what he had to do to cure the violation.

The Notice of Violation in the present case only stated that Appellant was “operating a marina” on his property “without proper permits or approvals” and that this operation was “a violation of Article 12 (p.18) and Table A-1” of the Zoning Regulations. To cure the violation, the Notice of Violation only stated that Appellant “must cease the marina operation.” Although the Notice provided copies of page 18 and Table A-1 of the Zoning Regulations (as well as, confusingly, also providing the definition of “residential marine association” not mentioned in the Notice of Violation), it did not provide any specific statements of what activities of Appellant constituted “operating a marina,” or what characteristics of his property constituted a “marina,” or, most importantly, what he would have to do to “cease the marina operation” and thereby cure the violation.

In particular, the definition of “marina” has two components, either of which is sufficient to bring shoreline property into the use category of “marina.” A marina may be property used simply for “access to public waters” for docking or mooring of five or more boats, regardless of whether any services are provided. Or a marina may be a “small-craft harbor complex” providing access to public waters and characterized by various commercial marine services.

Although apparently the violation cited in the Notice of Violation was meant to be the use of Appellant’s shoreland property for access to public waters for the docking or mooring of five or more boats, rather than his creation of a small-craft harbor complex with marine services, the Notice of Violation did not state the factual basis for the violation.12 Moreover, assuming that the cited violation is the

12 From the staff notes and photographs provided by the Planning and Zoning staff use of some shoreland property to provide access to public waters, neither the Notice of Violation nor the summary judgment materials reveal what path across the condominium property is alleged to be used by persons for that access, from which Appellant or this Court could determine whether it actually involves the limited common elements of Appellant’s unit at 1355 East Lakeshore Drive.

Further, the Notice of Violation did not state the number of boats alleged to be present at Appellant’s dock. Nor did the Notice of Violation state how the violation could be cured, other than by the circular reasoning that Appellant could cure the violation by “ceas[ing] the marina operation.” It is not possible to determine from the text of the Notice of Violation whether the Zoning Administrator was seeking to have Appellant remove a certain number of boats present at any given time; or seeking to have Appellant obtain approval of a residential marine association (recognizing that a marina is not an allowed use in the district); or seeking information regarding whether access across this property for the purpose of docking or mooring a certain number of boats predated the adoption of this provision of the Zoning Regulations; or, indeed, whether there was any other means of curing the alleged violation.13 Without either revealing the facts alleged to constitute the violation, or revealing how Appellant could cure the violation, the June 24, 2010 Notice of Violation did not meet the minimum standards for due process as described in Estate of White, 166 Vt. at 284-5. Summary judgment is therefore GRANTED to Appellant on this issue, and the June 24, 2010 Notice of Violation is therefore vacated, concluding this case, without prejudice to the issuance of any future notices of violation. Because the Notice of Violation has been vacated, the Court does not reach the Town’s motion for summary judgment that Appellant is in violation of the Zoning Regulations as stated in the Notice of Violation.

alleged as being used to reach the public waters of the Lake for the mooring or docking of five or more boats, Appellant may be an appropriate party to receive a notice of violation.

On the other hand, material facts are in dispute, or at least have not been provided to the Court, as to whether access to the Lake for the purpose of mooring or docking five or more boats is instead made over common elements of the condominium association. Accordingly, both motions for summary judgment are DENIED on the issue of whether Appellant or the Condominium Association, or both, were the proper parties to be issued the Notice of Violation.

factual bases and the conclusions related to the relevant review standards. 24 V.S.A. § 4464(b)(1). Because the original Notice of Violation has been vacated for lack of due process, it is not necessary to reach the issue of whether the DRB decision’s conflation of the use categories of “marina” and “residential marine association,” or its recitation of testimony from the hearing in lieu of its own factual findings, meets the minimum statutory standards of 24 V.S.A. § 4464(b)(1).

Therefore, the June 24, 2010 Notice of Violation is HEREBY VACATED, without prejudice to the issuance of any future notices of violation, concluding this appeal.