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HomeMy WebLinkAboutNV-03-0000 - Supplemental - 0062 Logwood StreetSTITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/fDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATH R. PAGE" E-MAagIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (RFLETCHER@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-9119 TIMOTHY M. EUSTACE ('ALSO ADMITTED IN N.Y.) CERTIFIED MAIL/RETURN RECEIPT REQUESTED August 17, 2004 City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: James P. Smith City of South Burlington Property Taxes 62 Logwood Street Tax ID #1060-00062 Gentlemen: JILL E. SPINELLI The records of the City of South Burlington indicate that there are delinquent taxes due and owing on the property identified on the enclosed Notice of Tax Sale. This property will be sold for taxes by the City of South Burlington at the date and time indicated in the Notice unless the taxes are paid in advance of said sale date. The Land Records of the City of South Burlington indicate that this property may be subject to a mortgage, lien or attachment in your favor, dated March 20, 2004, and of record in Volume 663, at Pages 415-416 of the City of South Burlington Land Records. Your interest in the property will be affected if the property is sold. The total taxes, interest, penalties, attorneys' fees and costs now due is $3,762.26. Additional interest will be added on September 15, 2004, and on the 15th of each month thereafter. There will also be additional charges for attorneys' fees and publication of the Notice of Tax Sale which is to begin on August 27, 2004. If we receive payment in the amount state above (plus any additional accrued interest) before 10:00 a.m. on August 26, 2004, we will stop publication of the Notice of Tax Sale and avoid incurring expenses of publication. By: REF/gmt Enclosure CC: Martha Lyons, Deputy Delinquent Tax Collector D U tVl _r•^ NOTICE OF TAX SALE Tie resi,dVj�kb"� and non-resident owners, lien holders, mortgagees and ersons interested in the purchase of land in the City of South Burlington, County of Chittenden and State of Vermont, are hereby notified that the taxes assessed by such City for the 2003-2004 and prior fiscal years remain, either in whole or in part, unpaid on the following described lands and/or premises situated in the City of South Burlington: Property known and numbered as 62 Logwood Street, owned by James Peter Smith, conveyed to him by Warranty Deed of Horace A. Bronson, Jr. and Joyce J. Bronson, dated October 28, 1994, and recorded in Volume 370, at Pages 248-249, of the City of South Burlington Land Records. Said lands and/or premises will be sold at a public auction at the City Offices, 575 Dorset Street, South Burlington, Vermont, on Wednesday, the 22nd day of September, 2004, at two o'clock in the afternoon, to discharge such taxes with costs, unless the same are previously paid. Information regarding the amount of taxes due may be obtained at the offices of Robert E. Fletcher, Esq., Stitzel, Page & Fletcher, P.C., P.O. Box 1507, Burlington, Vermont 05402-1507, (802) 660-2555. DATED at South Burlington, Vermont, this day of August, 2004. _f_&Lj e Charles E. Ha er, Collector of Delinquent Taxes City of South Burlington CITY LER 'S OFFICE , Received 206 at M Recorded in . 6_1 3 on p FATE OF VERMONT Qf So. Burlington lurid R ecords `, 4//� Attest: \_ `�=RONMENTAL COURT Donne S. Kinville, City Clerk City of South Burlington } V. } } James P. Smith } 663041s , F� I ►D �n .. FIvVIROM-iir dTA l COURT Docket No. 205-11-03 Vtec Amended Tudgment Order The City of South Burlington served Defendant James P. Smith with a Notice of Violation on October 10, 2003, for operating a junk yard without a zoning permit. The Defendant failed to appeal the Notice of Violation to the Development Review Board of the City of South Burlington and the Notice of Violation became final. The City then commenced the above -entitled action by filing a complaint, including a request for preliminary injunctive relief, on November 24, 2003, and serving it on Defendant on December 8, 2003. The parties entered into some discussions that resulted in Defendant's signing a stipulated order for preliminary injunctive relief on December 22, 2003, which was entered as a court order on December 26, 2003. On February 11, 2004, the City moved for default, as Defendant had not filed an answer to the complaint. In a February 23, 2004 entry order, the Court allowed the Defendant until March 15, 2004 to file an answer to the City's complaint because it was unclear whether Defendant realized that, even though he signed the stipulated order for preliminary injunctive relief, he still needed to file. an answer to the original complaint. As Defendant failed to file an answer or make any response to the motion for default, the Court entered judgment for the City on March 16, 2004 based on the pleadings, including affidavits in support thereof, and Defendant's lack of response to the Court's February 23, 2004 Order. The City moved to alter or amend that judgment order to include a penalty for the period from October 18, 2003 through at least February 2, 2004. Upon consideration of the 66304164 f NOT AN Or;,^111..!AL City's Motion to Alter or Amend the March 16, 2004 Judgment Order, it is hereby ordered that the March 16, 2004 Judgment Order is amended as follows. It is hereby ORDERED and ADJUDGED that: 1. No later than 30 days from the date that this Order is served upon Defendant, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk, as that term is defined in the City's Land Development Regulations. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Giving Defendant the benefit of having entered into discussions and having agreed to the stipulated order for preliminary relief, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $25.00 per day for every day of violation from October 18, 2003 to December 22, 2003, for a total for that period of $1,650. As Defendant did not thereafter respond to the complaint, the default motion, or this Court's order, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $50.00 per day for every day of violation from December 23, 2003 to April 20, 2004, plus costs of filing fees and service of process in the amount of $176.47, for a total for that period of $6,176.47. This order results in a total judgment amount of $7,826.47. 4. In addition, Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $100.00 per day for every day the violation continues after the removal date in paragraph 1, above, (that is, 30 days from the date this Order is served upon the Defendant). Done at Barre, Vermont, this 20th day of April, 2004. Merideth Wright Environmental Judge 2 EN® 0F MEPRIT r-E"OFFICE Received - Recorded i, 'FATE OF VERMONT Attest. °-� r�FTVIRONMENTAL COURT Dom; ° City of South Burlington } } V. } } James P. Smith } 2 0 2004 iQCd':�iE'4'i;yl C0URT E��VI Docket No. 205-11-03 Vtec Amended Tudgment Order The City of South Burlington served Defendant James P. Smith with a Notice of Violation on October 10, 2003, for operating a junk yard without a zoning permit. The Defendant failed to appeal the Notice of Violation to the Development Review Board of the City of South Burlington and the Notice of Violation became final. The City then commenced the above -entitled action by filing a complaint, including a request for preliminary injunctive relief, on November 24, 2003, and serving it on Defendant on December 8, 2003. The parties entered into some discussions that resulted in Defendant's signing a stipulated order for preliminary injunctive relief on December 22, 2003, which was entered as a court order on December 26, 2003. On February 11, 2004, the City moved for default, as Defendant had not filed an answer to the complaint. In a February 23, 2004 entry order, the Court allowed the Defendant until March 15, 2004 to file an answer to the City's complaint because it was unclear whether Defendant realized that, even though he signed the stipulated order for preliminary injunctive relief, he still needed to file an answer to the original complaint. As Defendant failed to file an answer or make any response to the motion for default, the Court entered judgment for the City on March 16, 2004 based on the pleadings, including affidavits in support thereof, and Defendant's lack of response to the Court's February 23, 2004 Order. The City moved to alter or amend that judgment order to include a penalty for the period from October 18, 2003 through at least February 2, 2004. Upon consideration of the 1 Iasi i Ai' U ...� . City's Motion to Alter or Amend the March 16, 2004 Judgment Order, it is hereby ordered that the March 16, 2004 Judgment Order is amended as follows. It is hereby ORDERED and ADJUDGED that: 1. No later than 30 days from the date that this Order is served upon Defendant, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk, as that term is defined in the City's Land Development Regulations. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Giving Defendant the benefit of having entered into discussions and having agreed to the stipulated order for preliminary relief, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $25.00 per day for every day of violation from October 18, 2003 to December 22, 2003, for a total for that period of $1,650. As Defendant did not thereafter respond to the complaint, the default motion, or this Court's order, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $50.00 per day for every day of violation from December 23, 2003 to April 20, 2004, plus costs of filing fees and service of process in the amount of $176.47, for a total for that period of $6,176.47. This order results in a total judgment amount of $7,826.47. 4. In addition, Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $100.00 per day for every day the violation continues after the removal date in paragraph 1, above, (that is, 30 days from the date this Order is served upon the Defendant) . Done at Barre, Vermont, this 20th day of April, 2004. Merideth Wright Environmental Judge 2 STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRM2555@FIRM SPF. COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 April 22, 2004 Kevin McLaughlin, Sheriff Chittenden County Sheriff's Dept. P.O. Box 1426 Burlington, VT 05402-1426 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03 Vtec Dear Sheriff McLaughlin: JILL E. SPINELLI Enclosed for service upon James P. Smith is an original and copy of the Amended Judgment Order in connection the above - referenced matter. Please make service upon Mr. Smith at his residence, 62 Logwood Street, South Burlington, Vermont. Once service has been completed, please return to me your Return of Service, together with the copy of the above document. If you have any questions, please do not hesitate to give me a call. Sincerely, Amanda S. E. Lafferty ASEL/br son5452.cor Enclosure cc: Charles Hafter, City Manager STATE OF VERMONT ENVIRONMENTAL COURT City of South Burlington } } V. } } James P. Smith } F'! 20 2004 ENVIRONMENTAL ENTAL COURT Docket No. 205-11-03 Vtec Amended Tudgment Order The City of South Burlington served Defendant James P. Smith with a Notice of Violation on October 10, 2003, for operating a junk yard without a zoning permit. The Defendant failed to appeal the Notice of Violation to the Development Review Board of the City of South Burlington and the Notice of Violation became final. The City then commenced the above -entitled action by filing a complaint, including a request for preliminary injunctive relief, on November 24, 2003) and serving it on Defendant on December 8, 2003. The parties entered into some discussions that resulted in Defendant's signing a stipulated order for preliminary injunctive relief on December 22, 2003) which was entered as a court order on December 26, 2003. On February 11, 2004) the City moved for default, as Defendant had not filed an answer to the complaint. In a February 23, 2004 entry order, the Court allowed the Defendant until March 15, 2004 to file an answer to the City's complaint because it was unclear whether Defendant realized that, even though he signed the stipulated order for preliminary injunctive relief, he still needed to file an answer to the original complaint. As Defendant failed to file an answer or make any response to the motion for default, the Court entered judgment for the City on March 16, 2004 based on the pleadings, including affidavits in support thereof, and Defendant's lack of response to the Court's February 23, 2004 Order. The City moved to alter or amend that judgment order to include a penalty for the period from October 18, 2003 through at least February 2, 2004. Upon consideration of the 1 City's Motion to Alter or Amend the March 16, 2004 Judgment Order, it is hereby ordered that the March 16, 2004 Judgment Order is amended as follows. It is hereby ORDERED and ADJUDGED that: 1. No later than 30 days from the date that this Order is served upon Defendant, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk, as that term is defined in the City's Land Development Regulations. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Giving Defendant the benefit of having entered into discussions and having agreed to the stipulated order for preliminary relief, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $25.00 per day for every day of violation from October 18, 2003 to December 22, 2003) for a total for that period of $1,650. As Defendant did not thereafter respond to the complaint, the default motion, or this Court's order, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $50.00 per day for every day of violation from December 23, 2003 to April 20, 2004, plus costs of filing fees and service of process in the amount of $176.47, for a total for that period of $6,176.47. This order results in a total judgment amount of $7,826.47. 4. In addition, Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $100.00 per day for every day the violation continues after the removal date in paragraph 1, above, (that is, 30 days from the date this Order is served upon the Defendant). Done at Barre, Vermont, this 20th day of April, 2004. ZAcr:�t"� 4e4 Merideth Wright Environmental Judge 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) April 22, 2004 Ray Belair City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03 Vtec Dear Ray: JILL E. SPINELLI Enclosed please find in connection with the above -referenced matter, the Court's Amended Judgment Order entered April 20, 2004. At least in part in response to the City's Motion to Alter or Amend a Judgment, the Court has increased the penalty from $4,376.47 to $7,826.47. Please record this Order and return to me a copy with the recording information. Please call with questions. Thank you. Sincerely, C, I vv Amanda S. E. Lafferty ASEL/br son5451.cor Enclosure STATE OF VERMONT ENVIRONMENTAL COURT City of South Burlington } } V. } } James P. Smith } 111 !=1 E c 20 2004 ENVIRQ d,;ACNTAL COURT Docket No. 205-11-03 Vtec Amended Judgment Order The City of South Burlington served Defendant James P. Smith with a Notice of Violation on October 10, 2003, for operating a junk yard without a zoning permit. The Defendant failed to appeal the Notice of Violation to the Development Review Board of the City of South Burlington and the Notice of Violation became final. The City then commenced the above -entitled action by filing a complaint, including a request for preliminary injunctive relief, on November 24, 2003) and serving it on Defendant on December 8, 2003. The parties entered into some discussions that resulted in Defendant's signing a stipulated order for preliminary injunctive relief on December 22, 2003) which was entered as a court order on December 26, 2003. On February 11, 2004) the City moved for default, as Defendant had not filed an answer to the complaint. In a February 23, 2004 entry order, the Court allowed the Defendant until March 15, 2004 to file an answer to the City's complaint because it was unclear whether Defendant realized that, even though he signed the stipulated order for preliminary injunctive relief, he still needed to file an answer to the original complaint. As Defendant failed to file an answer or make any response to the motion for default, the Court entered judgment for the City on March 16, 2004 based on the pleadings, including affidavits in support thereof, and Defendant's lack of response to the Court's February 23, 2004 Order. The City moved to alter or amend that judgment order to include a penalty for the period from October 18, 2003 through at least February 2, 2004. Upon consideration of the 1 City's Motion to Alter or Amend the March 16, 2004 Judgment Order, it is hereby ordered that the March 16, 2004 Judgment Order is amended as follows. It is hereby ORDERED and ADJUDGED that: 1. No later than 30 days from the date that this Order is served upon Defendant, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk, as that term is defined in the City's Land Development Regulations. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Giving Defendant the benefit of having entered into discussions and having agreed to the stipulated order for preliminary relief, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $25.00 per day for every day of violation from October 181) 2003 to December 22, 2003, for a total for that period of $1,650. As Defendant did not thereafter respond to the complaint, the default motion, or this Court's order, Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $50.00 per day for every day of violation from December 23, 2003 to April 20, 2004, plus costs of filing fees and service of process in the amount of $176.47, for a total for that period of $6,176.47. This order results in a total judgment amount of $7,826.47. 4. In addition, Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $100.00 per day for every day the violation continues after the removal date in paragraph 1, above, (that is, 30 days from the date this Order is served upon the Defendant) . Done at Barre, Vermont, this 20th day of April, 2004. Merideth Wright Environmental Judge 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) rEC.h0 FRARr 6 2004 DOCKET NO. 205-11-03 Vtec JAMES P. SMITH, ) 2rsi .. 4 200-4at Agipm Defendant. ) R , r,.��r� in Vol._ 11 3,a1 ;: ' Of So. Burlington Land Records JUDGMENT ORDAWS't The above -entitled action came before tW61 �2iJ�w oh"N Iv Plaintiff's Motion for Entry of Default Judgment. By and in consideration of the pleadings in this ca se, including �a Iac.A. � ,"P�s.Q_ t 4N 2�=,s r�Z3 r p�F affidavits in support thereof it is hereby ORDERED that: ` yr WiS e04.r- to !k." 1. No later than 3P days from the date a€ th i r, ^rvdgr vr, 10- Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk- a,5 c ef-c heJ 441 T1,& C, T,P j (5 444'"d elxa--- S 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $ Lf. ZO a , calculated at vd a rate of $ E 0 per day for every day of violation since ix'4, 2004, plus costs to date in the amount of $ 1?(A , q7 , for a total judgment amount of $ Li 37(o . Lf7 4 t�� j""•ln�'W Ib. 4. Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $ 100 00per day for every day theviolation continues t date r � +'f(� 61'IkSJ—( 30 A". s rr �rvc tGt� t o er� DATED at c'� Vermont this day of 2004. son1178.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 177 BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Honorable Merideth ight Environmental Court 3 �,..' t i t:'a ''iI: 2 s �r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) March 18, 2004 Raymond J. Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03 Vtec Dear Ray: JILL E. SPINELLI Enclosed please find the Judgment Order signed by Judge Wright in connection with the above -referenced matter. Please have it recorded by the Clerk and return to me a copy of it with the recording information in the enclosed stamped, self addressed envelope. Thank you. Sincerely, l Amanda S. E. Lafferty ASEL/jp Enclosure son5436.cor STEVEN F. STITZEL PATTI R. PAGE* ROBERT E.FLETCHER JOSEPH S. McLEAN TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (-ALSO ADhaTTED IN N.Y.) STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEIT'DD) FAX (802) 660-2552 or 660-9119 E-MAIL(FIRW 555@FIRMSPF.COM) WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) WRITER'S FAX (802) 660-2552 March 18, 2004 Jacalyn M. Stevens, Clerk Vermont Environmental Court 255 N. Main Street, Suite 2 Barre, VT 05641 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03Vtec Dear Jackie: JILL E. SPINELLI Enclosed for filing with regard to the above -captioned matter is a Motion to Alter or Amend a Judgment, as well as a Judgment Order for Judge Wright's consideration. Please give me a call with any questions. Thank you. Sincerely, aw.ov� N • ` , 1_9,#� Amanda S. E. Lafferty ASEL/jp Enclosures cc: Raymond J. Belair James P. Smith son5439.cor 7777 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) DAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec MOTION TO ALTER OR AMEND A JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and pursuant to V.R.C.P 59(e), requests that the Court alter it's Judgment Order entered March 16, 2004, for the following reasons. Memorandum Rule 59(e) of the Vermont Rules of Civil Procedure provides the court an opportunity to "reconsider issues previously before it, and generally . . . examine the correctness of the judgment itself." In re Robinson/Keir Partnership, Jack C. Keir & Jack C. Keir, Inc., 154 Vt. 50, 54 (1990). "A motion under Rule 59(e) suspends the finality of the judgment, and allows the trial court to revise its initial judgment if necessary `to relieve a party against the unjust operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party."' Osborn v. Osborn, 147 Vt. 432, 433 (1986). The City of South Burlington commenced this action to enforce its Land Development Regulations (hereinafter the "Regulations"). The Defendant failed and/or refused either to STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 appeal the notice of violation that the City issued to him on or about October 10, 2003, or to answer the City's Complaint dated November 21, 2003. It is therefore a foregone conclusion that Defendant's violation commenced on the 8tn day after the City issued the notice of violation, or October 18, 2003, and continued until at least February 3, 2004, the date of the affidavits filed in support of the City's Motion for Entry of Default Judgment. See 24 V.S.A. §§4464(a), 4472. By Judgment Order entered March 16, 2004, this Court ordered that "Plaintiff shall have judgment against Defendant for fines and penalties in the about of $4,200.00, calculated at a rate of $50.00 per day for every day of violation since December 22, 200[3] . . ." See Judgment Order, dated March 16, 2004, page 1, in Docket No. 205-11-03 Vtec. As reason for this refusal to recognize every day during which Defendant was in violation of the Regulations, the Court states "[g]iving Defendant the benefit of having agreed to the preliminary injunction order that date." The Vermont Supreme Court has held that this Court does not have authority to recognize any less than all of Defendant's offenses': the trial court [] set the daily fine at fifty dollars but recognized only twenty days of duration, although the violation has continued for a much longer time . . . As long ' Each day that a violation is continued shall constitute a separate offense. 24 V.S.A. §4444(a). 2 as defendant has the benefit of the zoning ordinance violation, the statute requires that he pay a daily fine. The cap imposed by the trial court limited defendant's exposure and prevented the Town from bringing future actions should defendant continue to violate the ordinance. The statute [24 V.S.A. section 4444(a)] does not authorize such a cap. See Town of Sherburne v. Carpenter, 155 Vt. 126, 133 (1990). Conclusion For the above -stated reasons, the City of South Burlington respectfully requests that the Court alter or amend its Judgment Order, entered March 16, 2004, in the above -referenced matter, to recognize each day that Defendant violated the Regulations. The City has enclosed a proposed Judgment Order for the Court's consideration. DATED at Burlington, Vermont this 18t' day of March 2004. son1191.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys Amanda S. E. Lafferty tv 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec JUDGMENT ORDER The above -entitled action came before the Court on Plaintiff's Motion for Entry of Default Judgment. By and in consideration of the pleadings in this cause, including affidavits in support thereof and Defendant's lack of response to the Court's February 23, 2004, Order, it is hereby ORDERED that: 1. No later than 30 days from the date that this Order is served upon Defendant, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk, as defined in the City's Land Development Regulations. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $ , calculated at a rate of $ per day for every day of violation since October 17, 2003, plus costs to date in the amount of $176.47, for a total judgment amount of $ 4. Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $100.00 per day for every day the violation continues after the date established in Paragraph 1 of this Order (30 days after service of this Order). DATED at , Vermont this day of 2004. son1192.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURUNGTON, VERMONT 05402-1507 Honorable Merideth Wright Environmental Court 2 -, �04 & L41) :) --� 61 /k."- H'.1u; ? Z41- 2o)m, �,Nz I3o`I 03/10'EQ04 THIJ 11:89 rtaZi OQi.09Q9119 ®TITZEL TALE Q. rLZTOSEtR 1�QQZ CITY OF $00 SURLINOTON, } Plaintiff , } } V. ) ) IT MES P . SMITH, ) DOCKET NO. 205-11-03 Vtlac Th�.:! abeve-ent.i.tled :action came before, the Court. on Plainti:L'f`s Motions for Entry of Default Judgment. By and in c:nsida::ation of the pleadings in this ca se, includ�g ' &!16& `s ia6 c.�!'. *l Pexec-v%S� -*ma- s s c'# affidavits in support thereof it is hereby ORDERED that: ? tA"6- e � 1. No_ layer thanC3 days from the sate o€; n Defendant shall remove from the property located at 52 Logwood Street zn South Burlington, Vermont, all junk, GeS de�Cnec�r Ti'' 2. Thereafter, Defendant shall, not store or accumulate junk on the Iroperty referenced in paragraph 1, above, without first obtainLig a zoning permit from the City of South Burlington. 3. Plaintiff shall have judgment against Defendant for fines aid penalties in the amount of $ I Z-©_ _._, calcculated at 9-6 a rate of S_per day for every day of violation since q� �2, l'r 3a, 2004, plus costs to date in the amount of $ 17(o, q7 , for- a total j°adgment amount of $143-7(e � 47 STITZEL, PAGE & F LET'CHM PC, ATTORNEYS AT LAW 271 RAT?W !rMMT mwKw. ELUMUCN V=0"T awm_Is0 03/13/2004 THU 11:39 FAX 3020609119 STITZEL PAGE & FLETCHER [j003 - i 4. Plaintiff shall have judgelent against Defendant for fines si').d penalties calculated at a rate of S OCR" per day for every day the violation contin � ���xr t date 'Wt�o rd Qr DA,.ED at Clermont this lb day of ii;�ea 2004. I 3on;178.11t STI2 14 PAGE & FUTCHER, P.C. ATY0RMS AT Law 171 DA1TBi!' BTN= 9UR-1NS'TY7N, Y ZRKOM Y6{0 i"I Honorable Merideth Wight Environmental Court V STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAII.(FHZM2555@FRUASPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (`ALSO ADMITTED IN N.Y.) February 10, 2004 Jacalyn M. Stevens, Clerk Vermont Environmental Court 255 N. Main Street, Suite 2 Barre, VT 05641 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03Vtec Dear Jackie: JILL E. SPINELLI Enclosed for filing with regard to the above -captioned matter is a Motion for Entry of Default Judgment, Affidavit of Raymond Belair, Affidavit as to Military Service on Default of Appearance of Defendant and a Judgment Order. Please give me a call with any questions. Thank you. Sincerely, ? Amanda S. E. Lafferty ASEL/jp Enclosure cc: Raymond J. Belair James P. Smith son5409.cor 7777 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec MOTION FOR ENTRY OF DEFAULT JUDGMENT NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C., and moves pursuant to Rule 55 of the Vermont Rules of Civil Procedure for entry of default judgment in its favor against the Defendant James P. Smith, for failure to appear or defend the above -entitled action. MEMORANDUM Pursuant to Rule 55 of the Vermont Rules of Civil Procedure, when a party fails to plead or otherwise defend against a prayer for affirmative relief in the manner and time specified by the Rules of Civil Procedure, the Clerk of the court shall enter the party's default, V.R.C.P. 55(a), and the non -defaulting party may apply for and have entered a default judgment in its favor. Id. at 55(b). Plaintiff has filed its Motion for Entry of Default Judgment, dated of even date herewith, and asks that the Court grant the same on the following basis. Plaintiff is a Vermont municipal corporation situated in Chittenden County and State of Vermont. At all times material to this matter, Plaintiff has had Land Development Regulations STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 (hereinafter the "Regulations") in effect. On or about October 10, 2003, Plaintiff notified Defendant that he was in violation of the Regulations as the result of activity occurring on property owned and/or occupied by Defendant and located at 62 Logwood Street in South Burlington, Vermont (hereinafter the "Property"). See Affidavit of Ray Belair. Notwithstanding said notice, Defendant has failed and/or refused to comply with the requirements of the City's Regulations. See id. Therefore, Defendant's violation has continued for 109 days as of February 3, 2004. See id. Plaintiff filed it's Complaint on or about November 24, 2003. Plaintiff's Complaint, together with a Summons, were served on Defendant on December 8, 2003, and Plaintiff filed the Return of Service on or about December 16, 2003. To date, Defendant has not filed an answer or taken any other action in defense of the allegations set forth in Plaintiff's Complaint. As noted above, failure to plead or otherwise defend against a prayer for affirmative relief subjects one to entry of default and a default judgment pursuant to the provisions of V.R.C.P. 55. Plaintiff seeks judgment in its favor that: 1. Grants permanent injunctive relief providing that Defendant shall: a. Remove from the Property all junk, and 2 b. Not store or accumulate junk on the Property without first obtaining a zoning permit from the City; 2. Requires Defendant to pay fines and penalties (pursuant to 24 V.S.A. §4444(a)), in an amount which can, by computation, be made certain; 3. Awards such other relief as the Court deems proper. Hence, the Plaintiff's Motion for Default Judgment is governed by the provisions of Rule 55(b)(2). Plaintiff has submitted to the Court the requisite affidavits regarding Defendant's infancy and incompetence, Defendant's membership in military service and amounts due the Plaintiff. For the foregoing reasons,, Plaintiff believes that it is entitled to default judgment and respectfully requests that the Court grant Plaintiff's Motion for Entry of Default Judgment. DATED at Burlington, in the County of Chittenden and State of Vermont, this loth day of February 2004. son1176.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its attorneys Amanda S. E. Lafferty 3 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec AFFIDAVIT I, Raymond Belair, having been duly sworn, depose and state, based upon my personal knowledge, as follows: 1. I am the duly appointed Administrative Officer for the Plaintiff, City of South Burlington. This Affidavit is made pursuant in support of Plaintiff's Motion for Default Judgment, pursuant to V.R.C.P. 55. 2. On or about October 10, 2003, I provided Defendant with a written notice of violation. Defendant failed to appeal said written notice of violation. 3. To date, Defendant has failed and/or refused to comply fully with the requirements of the City's Land Development Regulations by completing the required corrective action enumerated in said written notice. 4. As of today, Defendant has continued the violation for 109 days for a total of 109 offenses. Based on this number of offenses, the City requests $10,900.00 in fines, as well as an 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 additional $100.00 per day for each day the violation continues past today's date. 5. In pursuing this claim, the City has incurred the costs of Environmental Court filing fees, in the amount of $150.00, and service of process on Defendant, in the amount of $26.47. DATED at South Burlington, in the County of Chittenden, and 1-, State of Vermont, this 3rd day of F�f rruary 200 R ear STATE OF VERMONT CHITTENDEN COUNTY, SS. Subscribed and sworn to before me this 3' day of February 2004. Notary Pu 1 c My Commission Expires: A * son1177.1it 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec AFFIDAVIT AS TO MILITARY SERVICE ON DEFAULT OF APPEARANCE OF DEFENDANT I, Corporal Todd LeBlanc, of the City of South Burlington Police Department, on oath, depose and say: To my knowledge and belief, JAMES P. SMITH, who owns and/or occupies property located at 62 Logwood Street in South Burlington, Vermont, is not in the military service or other service of the United States included in the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. This belief is based on my personal dealings with and knowledge of the Defendant for approximately three (3) months. To my knowledge, Defendant is otherwise employed or unemployed. During my acquaintance with the Defendant, I have never seen the Defendant in uniform. To my knowledge and belief, the Defendant, JAMES P. SMITH, is not an infant or incompetent. DATED at South Burlington, in the County of Chittenden, and State of Vermont, this _ day of February 2004. odd LeBlanc STATE OF VERMONT CHITTENDEN COUNTY, SS. OWL Subscribed and sworn to before me thisv day of February 2004. Notary Public My Commission Expires: son1179.1it STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec JUDGMENT ORDER The above -entitled action came before the Court on Plaintiff's Motion for Entry of Default Judgment. By and in consideration of the pleadings in this cause, including affidavits in support thereof, it is hereby ORDERED that: 1. No later than days from the date of this Order, Defendant shall remove from the property located at 62 Logwood Street in South Burlington, Vermont, all junk. 2. Thereafter, Defendant shall not store or accumulate junk on the property referenced in paragraph 1, above, without first obtaining a zoning permit from the City of South Burlington. 3. Plaintiff shall have judgment against Defendant for fines and penalties in the amount of $ , calculated at a rate of $ per day for every day of violation since October 17, 2004, plus costs to date in the amount of $ , for a total judgment amount of $ STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 4. Plaintiff shall have judgment against Defendant for fines and penalties calculated at a rate of $ per day for every day the violation continues from the date of this Order. DATED at , Vermont this day of February 2004. son1178.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 Honorable Merideth Wright Environmental Court K STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MA14FIRM2555(a.)FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY(cJFIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) February 3, 2004 Raymond J. Belair Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03 Vtec Dear Ray: JILL E. SPINELLI Enclosed please find two original Affidavits in the above - referenced matter. Please sign where indicated before a notary public, ask Mr. LeBlanc to do the same, and return both to my office. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/tlm Enclosures son5404.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec AFFIDAVIT AS TO MILITARY SERVICE ON DEFAULT OF APPEARANCE OF DEFENDANT I, Corporal Todd LeBlanc, of the City of South Burlington Police Department, on oath, depose and say: To my knowledge and belief, JAMES P. SMITH, who owns and/or occupies property located at 62 Logwood Street in South Burlington, Vermont, is not in the military service or other service of the United States included in the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. This belief is based on my personal dealings with and knowledge of the Defendant for approximately three (3) months. To my knowledge, Defendant is otherwise employed or unemployed. During my acquaintance with the Defendant, I have never seen the Defendant in uniform. To my knowledge and belief, the Defendant, JAMES P. SMITH, is not an infant or incompetent. DATED at South Burlington, in the County of Chittenden, and State of Vermont, this day of February 2004. Todd LeB anc STATE OF VERMONT CHITTENDEN COUNTY, SS. Zlf Subscribed and sworn to before me this = day of February 2004. Notary Public r`J rr My Commission Expires: son1179.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET RO BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec AFFIDAVIT I, Raymond Belair, having been duly sworn, depose and state, based upon my personal knowledge, as follows: 1. I am the duly appointed Administrative Officer for the Plaintiff, City of South Burlington. This Affidavit is made pursuant in support of Plaintiff's Motion for Default Judgment, pursuant to V.R.C.P. 55. 2. On or about October 10, 2003, I provided Defendant with a written notice of violation. Defendant failed to appeal said written notice of violation. 3. To date, Defendant has failed and/or refused to comply fully with the requirements of the City's Land Development Regulations by completing the required corrective action enumerated in said written notice. 4. As of today, Defendant has continued the violation for 109 days for a total of 109 offenses. Based on this number of offenses, the City requests $10,900.00 in fines, as well as an 1 w r STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1607 BURLINGTON, VERMONT 05402-1507 additional $100.00 per day for each day the violation continues past today's date. S. In pursuing this claim, the City has incurred the costs of Environmental Court filing fees, in the amount of $150.00, and service of process on Defendant, in the amount of $26.47. DATED at South Burlington, in the County of Chittenden, and State of Vermont, this 3rd day of February 20047. Tr \ Rai �Bey�ar STATE OF VERMONT CHITTENDEN COUNTY, SS. Subscribed and sworn to before me this 31 day of February 2004. Notary Pu 1 c My Commission Expires:, !® son1177.1it 2 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICF/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE AMANDA S. E. LAFFERTY (*ALSO ADMITTED IN N.Y.) January 7, 2004 James P. Smith 62 Logwood Street South Burlington, Vermont 05403 Re: City of South Burlington v. Smith Docket No. 205-11-03 Vtec Dear Mr. Smith: JILL E. SPINELLI In connection with the above -referenced matter, enclosed please find a Stipulated Order for your review and consideration. If acceptable, please sign above your printed name and return to me. In the City's Complaint dated November 21, 2003, the City requests that the Court impose permanent injunctive relief and a fine. This proposed Stipulated Order includes the City's requested relief. The amount of the fine is based on what the City has spent pursing your compliance with the City Land Development Regulations. You have failed to answer the City's Complaint. The City may now ask the Court for default judgment. Should you refuse to agree to the enclosed Stipulated Order, the City intends to file a motion for default judgment and ask for a fine in the amount of One Hundred Dollars ($100.00) per day for each day you have been in violation of the City Land Development Regulations. As of today, that amount is Eight Thousand Two Hundred Dollars ($8,200.00). Given that you have chosen not to appear and defend yourself in this matter, it is possible that the Court will impose a fine greater than that in the enclosed Stipulated Order. Please call me to discuss this matter. If I have not received the Stipulated Order back from you or if you have not contacted me by January 14, 2004, than the City will assume that you do not wish to enter into the stipulation and will go forward with a motion for default judgment. Please be aware that the James P. Smith January 7, 2004 Page 2 amount of the fine in the stipulation may increase if the City is required to spend more time resolving this matter. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure CC: Ray Belair, Administrative Officer son5364.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec STIPULATED ORDER NOW COME the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and James P. Smith, Pro Se, and hereby stipulate that the Court may enter the following order, granting the City's request for permanent injunctive relief and for fines. 1. No later than February 16, 2004, James P. Smith (hereinafter "Defendant") shall remove from the property located at 62 Logwood Street in South Burlington, Vermont (hereinafter the "Property"), all junk, as defined in Article 2 of the South Burlington Land Development Regulations. 2. From February 16, 2004, Defendant shall not store or accumulate or allow the storage or accumulation of junk on the Property, without first obtaining a zoning permit from the City. 3. No later than February 16, 2004, Defendant shall pay to the City One Thousand Three Hundred Dollars ($1,300). SO ORDERED: Honorable Merideth Wright 1 Date DATED at Burlington, Vermont this day of January 2004. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It attorneys Amanda S. E. Lafferty DATED at South Burlington, Vermont this 2004. son1173.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 James P. Smith 2 day of January STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTYLFIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) December 30, 2003 Raymond Belair, Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: City of South Burlington v. Smith Docket NO. 205-11-03 Vtec Dear Ray: AMANDA S.E. LAFFERTY JILL E. SPINELLI In connection with the above -referenced matter, please find a copy of the Stipulated Order so -ordered by Judge Wright. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure son5362.cor TITZEL, PAGE & FLETCHER, P.C. PTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 -RLINGTON, VERMONT 05402-1507 FILED STATE OF VERMONT r^ ENVIRONMENTAL COURT =r Z 6 s CITY OF SOUTH BURLINGTON, ) EP4VIRO 1�EfV1Al COURT Plaintiff, ) DOCKET NO. 205-11-03 Vtec V. ) JAMES P. SMITH, ) Defendant. ) STIPULATED ORDER NOW COME the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and James P. Smith, Pro Se, and hereby stipulate that the Court may enter the following order, granting the City's request for preliminary injunctive relief. From the date of this Order until the final adjudication of this matter, James P. Smith shall not store or accumulate any additional junk on the property located at 62 Logwood Street in South Burlington, Vermont. DATED at Burlington, Vermont this 151h day of December 2003. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It attorneys .- Amanda S. E. Lafferty DATED at South Burlington, Vermont this day of December 2003. -, r. -e:2 Ja s P. Smith SO ORDERED: onorable Meridet Wr' ht Date son1170.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/I'DD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAH,(FB2M2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (`ALSO ADMITTED IN N.Y.) December 24, 2003 Jacalyn M. Stevens, Clerk Vermont Environmental Court 255 N. Main Street, Suite 2 Barre, VT 05641 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03Vtec Dear Jackie: AMANDA S.E. LAFFERTY JILL E. SPINELLI Enclosed for filing with regard to the above -captioned matter is original Stipulated Order, which has been signed by the parties. It is my understanding that upon receipt of the signed Stipulated Order the hearing scheduled for January 2, 2004 will not be necessary. Thank you. Sincerely, Amanda S. E. fferty ASEL/gmt Enclosure cc: Raymond J. Belair�' James P. Smith Signed and mailed in Ms. Lafferty's absence. SON5360.COR 7777 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec STIPULATED ORDER NOW COME the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and James P. Smith, Pro Se, and hereby stipulate that the Court may enter the following order, granting the City's request for preliminary injunctive relief. From the date of this Order until the final adjudication of this matter, James P. Smith shall not store or accumulate any additional junk on the property located at 62 Logwood Street in South Burlington, Vermont. DATED at Burlington, Vermont this 15th day of December 2003. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It attorneys , Ja Amanda S. E. Lafferty DATED at South Burlington, Vermont this day of December 2003. efl�22 2,e Jan#s P. Smith SO ORDERED: Honorable Merideth Wright Date son1170.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M.EUSTACE (*ALSO ADMITTED IN N.Y.) December 16, 2003 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street, Suite 2 Barre, VT 05641 RE: City of South Burlington v. James P. Smith Docket No. 205-11-03Vtec Dear Jackie: AMANDA S.E. LAFFERTY JILL E. SPINELLI Enclosed please find for filing the Sheriff's Return of Service in connection with the above -referenced matter. If you have any questions, please feel free to call me. Thank you. Sincerely, Amanda S.E. Lafferty ASEL/jp Enclosure CC: Raymond J. Belair James Smith son5355.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, Plaintiff V. JAMES P. SMITH, Defendant VERMONT ENVIRONMENTAL COURT DOCKET NO. 205-11-03Vtec RETURN OF SERVICE On the F day of December, 2003, I made service of the Order for Hearing, Summons, Complaint with Request for Preliminary Injunctive Relief and Pre -Hearing Memorandum, upon Service Mileage Postage 3 % Total Due $ SON1167.LIT 777 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICEITDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE' E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) December 15, 2003 James P. Smith 62 Logwood Street South Burlington, Vermont 05403 Re: City of South Burlington v. James P. Smith Docket No. 205-11-03 Vtec Dear Mr. Smith: AMANDA S.E. LAFFERTY JILL E. SPINELLI In connection with the above -referenced matter, enclosed please find for your review and consideration, a Stipulated Order. If the Stipulated Order is agreeable to you, please sign and date in the appropriate places and send back to me at the above address. As soon as I receive it, I will file it with the Environmental Court, with a copy to you. If the Court enters this Stipulated Order as an Order of the Court, the Court will provide you with copy signed by the Court. If you have any questions, please call me. Thank you. Sincerely, �f;z� k- Amanda S. E. Lafferty CC: Ray Belair, Administrative Officer son5352.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURUNGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) DOCKET NO. 205-11-03 Vtec STIPULATED ORDER NOW COME the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C. and James P. Smith, Pro Se, and hereby stipulate that the Court may enter the following order, granting the City's request for preliminary injunctive relief. From the date of this Order until the final adjudication of this matter, James P. Smith shall not store or accumulate any additional junk on the property located at 62 Logwood Street in South Burlington, Vermont. DATED at Burlington, Vermont this 15th day of December 2003. CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. It attorneys Amanda S. E. Lafferty DATED at South Burlington, Vermont this _ day of December 2003. SO ORDERED: Honorable Merideth Wright James P. Smith Date son1170.1it DEC-12-2003 FRI 02:07 PM STITZEL PAGE FLETCHER PC FAX NO. 8025602552 P. 02 SotiTIL V. STATT OF VERM01,TT ENVIRONMENTAL COURT DOCNET NO. 205-11-03 Vtec B7 T R, 9 L AMT 4 A'. � Q N AM CitY Of SOUL;h 13112-1irigton, by and througi-i its Poge & Fletcher, P.C. and James P. Smith, Pro 110-C-0hy -11LIpulaLe that' tho Court may Crites: t11a fQjj.0wijjg thc` C!tY'F; X'Cq'uF'Vt: for Preliminary injunctive f "tO. Of Ordt-Ir U11til the ii al Lij, JL E I a idication of J;Imes 11, SMiLh shall not -tare or accumulate any locztted at 62 Logwood Street in VormoviL. Vormont thio 11"' clay Of DeCCm'I)ez, 2003. CITY OF SOUTH BURLINGTON BY: STITZEL, PAGR & FL8TCHSR, V,C. It attorneys iT�7'-a ni 4RA-11"1 y WITLY'D FIL '9011th D-Ur1ingtol-A, vL , UZw. aY of December 200.4. -To AP J&1�'62 P-.­Smith Ja r- e soxil 110, 1.1 u DEC-122-2003 FRI 02:07 PM STITZEL PACE FLETCIER PC FAX NO. 8026602552 P. 01 PAC.: &Fl,Isl't:Iiri�, P.C. ATRAN A71.AW 171 11A'iTFRY S7'i LL"I' P.O. LOX 1507 1111R1..INki YON, VVRM0N'I' 05402.1507 (sus}pG0-2i5.5 (�'011'iJl'I)ii) 441 VI N I'. tit t i',,i:t PAN (M07) rn( 759] t,rw-oin I' k4 t I R• i°•h<'i i•' I.' -'-IA 1141*11W2.')S$f f,NRMSPF C OM) 8oI,I':N 1')' ,1 C :;'fI"I I R 1VRI'(t,lt'ti C'. A4n11,(AGAfi'C',R'l'Y;+ 1'1ltvCSl'i'.t"0�1) 16:' VI11. Me I ,.,1,r; 1'A:1(ewp) 6aU 2si7 'ilTv VIIIY M J NI,M (! t'ALSO l tt:,:1, i t I.I IN, ! I Y J G A(.'S1M11,1? TRANSMlTTA7, SHFT—r I tx(;mber 12., 2003 111(4; Ray F ohit w a."„ ("I i iY V. i th Sc1)d (: Amila do l nf'14-rty AMANnA S.tn I.Ar -00Y 1111, E..;N"'1.1 I.I Yr)ll tthuulclr;c(s), i11C1111:1i11g III is Cover sheet. 1f you do 1111 C'Iw.. )si�;t;5...lall'rth� call (802) 660-2555._. M F I SSAC1 1 ri:w:l (14 (I funinvith il; t) cirall. Stipulnled Order for your and Chuck Haller's review and toil, 1110,180 IQ[ li o know ifit's acceptable to you. Thank you. 1 iila Ii>l:' .,1"4' 1'S it,Q,„fad oill1' 111of 01I; u'c 1.1C Ilh' 8c?(lrc.+ ru tntl mdy contain itiArrrimuon thlt i,a gu'ivllLJ,,:d and cunfidtnli;tl If you arc; not the 111t� i,.�r'li ro;:iploli' pw Ury 11VA:13y ik,lilic,l 111,11 Lily lli'ibClitlttna,ul ol'1hW COI11YnulliCalion is ,Irictly'poobibrtud. Ifyou have received t)Yis ran:,trall:l,)h1'ar ur rl'ua', plra•r vu'i (y ir, Inufi•xlt:,tsly by Wl�phhn0 (90_1-660-2555). 11iank yolt. STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY(a;FIRMSPRCOM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y) December 3, 2003 Ray Belair, Administrative Officer City of South Burlington 575 Dorset Street South Burlington, VT 05403 Re: City of South Burlington v. Smith Docket NO. 205-11-03 Vtec Dear Ray: AMANDA S.E. LAFFERTY JILL E. SPINELLI In connection with the above -referenced matter, please find a copy of the Court's Order for Hearing. Please set the afternoon of December 23, 2003, aside on your calendar. Thank you. Sincerely, Amanda S. E. Lafferty ASEL/jp Enclosure son5350.cor STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) V. ) JAMES P. SMITH, ) Defendant. ) FILED bLc-120 L ENVIRONMENTAL COURT — DOCKET NO. Vtec ORDER FOR HEARING Upon the City of South Burlington's Motion for Preliminary Injunctive Relief set forth in its Complaint, it is ordered that James P. Smith show cause before this Court on the " i-dday of AOff-m " 2003 at 3 o'clock in the noon, or as soon thereafter as he may be heard why this Court should not grant the preliminary injunctive relief requested by the Town. DATED at Barre, in the County of Washington, State of Vermont, this 1L day of &=Ir 2003. BY: J4-,m (M C rk E vironmental Court son1163.1it 3� ChU-An7 CITZEL, PAGE & TETCHER, P.C. TORNEYS AT LAW 71 BATTERY STREET P.O BOX 1507 RUNGTON, VERMONT 05402-1507 1 Fv. ,7VW No Text cz-a-�' STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O. BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICE/TDD) STEVEN F. STITZEL FAX (802) 660-2552 or 660-9119 PATTI R. PAGE* E-MAIL(FIRM2555@FIRMSPF.COM) ROBERT E. FLETCHER WRITER'S E-MAIL (ALAFFERTY@FIRMSPF.COM) JOSEPH S. McLEAN WRITER'S FAX (802) 660-2552 TIMOTHY M. EUSTACE (*ALSO ADMITTED IN N.Y.) November 21, 2002 Jackie Stevens, Clerk Vermont Environmental Court 255 North Main Street, 1st Floor Barre, VT 05641 RE: City of South Burlington v. James P. Smith Docket No. Not Assigned Yet Dear Jackie: AMANDA S.E. LAFFERTY JILL E. SPINELLI Enclosed for filing please find the following documents in the above -referenced matter: 1. Complaint with Request for Preliminary Injunctive Relief; 2. Pre -Hearing Memorandum of City of South Burlington; 3. Order for Hearing; and 4. A check in the amount of $150 representing the filing fee. Please schedule, at the Court's earliest convenience, in connection with the City's request for preliminary injunctive relief, a hearing and return the Order for Hearing to me to be served upon the Defendant. If you have any questions, please feel free to call me. Thank you. Sincerely, 9` ,a Amanda S.E. Lafferty ASEL/tlm Enclosures CC: Raymond Belair son5335.cor STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, Plaintiff, ) DOCKET NO. Vtec V. ) JAMES P. SMITH, ) Defendant. ) COMPLAINT WITH REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF NOW COMES the City of South Burlington, by and through its attorneys, Stitzel, Page & Fletcher, P.C, and for is Complaint, states as follows: 1. The City of South Burlington (hereinafter the "City") is a Vermont municipality situated in Chittenden County. 2. At all times material to this Complaint, the City has had Land Development Regulations (hereinafter the "Regulations") in effect. 3. Defendant James P. Smith (hereinafter the "Defendant") owns and/or occupies real property located at 62 Logwood Street in the Residential 4 Zoning District in South Burlington, Vermont (hereinafter the "Property"). 4. The Property consists of 0.18 of an acre and a single- family dwelling. S. Commencing on or before October 10, 2003, the Defendant operated a junk yard on the Property. 1 STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 6. At no time has Defendant obtained approval or a permit from the City to use the Property in the manner described in paragraph 5, above. 7. The operation of a junkyard, referenced in paragraph 5, above, without first having obtained approval from the City, constitutes a violation of both Section 17.02(A) of the Regulations and 24 V.S.A. section 4443(a)(1). 8. On or about October 10, 2003, the City provided Defendant with a written notice of violation pertaining to the operation of a junkyard on the Property without the approval from the City. A true and correct copy of said notice, marked as Exhibit A, is attached hereto. 9. Defendant failed to appeal said written notice of violation to the City Development Review Board within the required fifteen (15) day time period and the time for taking such an appeal has now passed. 10. In spite of said notice, Defendant has failed and/or refused to comply with the requirements of the Regulations as of the date of this Complaint. WHEREFORE, the City requests that this Court grant it the following relief: 1. Enter an Order granting preliminary injunctive relief, in the City's favor, that requires Defendant to cease the storage and accumulation of junk on the Property; 2 2. Enter an Order granting permanent injunctive relief, in the City's favor, providing that Defendant shall a. Remove from the Property all junk; and b. Not store or accumulate junk on the Property without first obtaining a zoning permit from the City. 3. Award the City fines of One Hundred Dollars ($100.00) per day, for each day Defendant has been in violation of the City Land Development Regulations. 4. Award such other relief as the Court deems proper. DATED at Burlington, Vermont this 211t day of November 2003. son1160.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.0 BOX 1507 BURLINGTON, VERMONT 05402-1507 CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys �{ Amanda S. E. Lafferty 3 CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONE4G 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 October 10, 2003 James P. Smith 62 Logwood Street South Burlington, VT 05403 RE: Zoning Violation - 62 Logwood Street Dear Mr. Smith: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a zoning permit from the City as required by Section 17.02 of the Land Development Regulations and 24 VSA 4443 (a) (I). Specifically, you have initiated the following activities on the above -described property. Operating a junk yard without a zoning permit. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Remove all junk and all unregistered, inoperable motor vehicles from the premesis. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceedings, the City will be entitled to seek appropriate injunctive relief and fines of up to $100.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. EXHIBIT P .9 A E m STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, Plaintiff, ) DOCKET NO. Vtec V. ) JAMES P. SMITH, ) Defendant. ) PRE -HEARING MEMORANDUM OF CITY OF SOUTH BURLINGTON This is an action commenced by the City of South Burlington to enjoin a violation of its duly adopted Land Development Regulations (hereinafter the "Regulations"). Defendant James Smith is the record owner of real property located at 62 Logwood Street in South Burlington (hereinafter the "Property"), which is the subject of this proceeding. On or before October 10, 2003, Defendant commenced the operation of a junkyard on the Property, without first having obtained approval from the City to do so. Section 17.02(A) of the City Land Development Regulations and 24 V.S.A. section 4443(a)(1) provide that "[n]o land development may be commenced within the area affected by such [] [R]egulations without a permit therefor issued by the administrative officer." Land Development, as defined in Article 2 of the Regulations, includes "any change in the use of any building or other structure, or land ." It is the City's position that the Defendant has commenced land development within the meaning of the Regulations. The City further contends that since it has not issued any permits I STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171 BATTERY STREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 granting Defendant the authority to operate a junk yard on the Property, Defendant has violated the Regulations. By its Complaint dated November 21, 2003, the City has asked this Court to grant preliminary injunctive relief that requires Defendant to cease the storage and accumulation of junk on the Property. Section 4445 of Title 24 of the Vermont Statutes Annotated specifically gives the City authority to bring an action to obtain an injunction "to prevent, restrain, correct or abate such construction or use, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation." Based on this statutory language, the City is entitled to preliminary injunctive relief upon establishing the likelihood of the existence of a violation. See Town of Sherburne v. Carpenter, 155 Vt. 126, 129 (1990). The City need not demonstrate any irreparable injury, special damage or the non-existence of an adequate remedy at law. . Id. Similarly this Court is not required to weigh the injury to the public from the violation of the Regulations against the cost of compliance to Defendant, since it is normally assumed that the public injury outweighs the private cost. Id. at 129-130. DATED at Burlington, Vermont, this 21s' day of November 2003. son1161.1it CITY OF SOUTH BURLINGTON By: STITZEL, PAGE & FLETCHER, P.C. Its Attorneys -1 Amanda S. E. Lafferty 2 STATE OF VERMONT ENVIRONMENTAL COURT CITY OF SOUTH BURLINGTON, ) Plaintiff, ) DOCKET NO. V. ) JAMES P. SMITH, ) Defendant. ) ORDER FOR HEARING Vtec Upon the City of South Burlington's Motion for Preliminary Injunctive Relief set forth in its Complaint, it is ordered that James P. Smith show cause before this Court on the day of 2003 at o'clock in the noon, or as soon thereafter as he may be heard why this Court should not grant the preliminary injunctive relief requested by the Town. DATED at Barre, in the County of Washington, State of Vermont, this day of November 2003. son1163.1it STITZEL, PAGE & FLETCHER, P.C. ATTORNEYS AT LAW 171BATTERYSTREET P.O BOX 1507 BURLINGTON, VERMONT 05402-1507 M-No Clerk Environmental Court 1 .1. T V 1j L. Filing Fee City of South Burlington v. James Smith STiTZEL, PAGE & FLETCHER, P.C. PH: (802) 660-2555 171 BATTERY STREET, P.O. BOX 1507 BURLINGTON, VT 05402-1507 THE HOWARD BANK, N.A. BURLINGTON, VT 05402 58-31116 DATE 11/21/03 PAY One hundred fifty and no/100 Dollars 8 TO THE DER OFVermont Environmental Court L ) SECURITY FEATURES INCLUDED. DETAILS ON 111014892113 1:0 L i6000331: 11060 L4903611■ STITZEL, PAGE & FLETCHER, P.C. 11/21/03 $150.00 Vermont Environmental Court Filing Fee City of South Burlington v. James Smith AMOUNT $150.00 • • • LR2279-LN-1 TUTTLE LAW PRINT 800-776-7682 PRINTED IN U.S.A. CITY OF SOUTH BURLINGTON DEPARTMENT OF PLANNING & ZONING 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 (802) 846-4106 FAX (802) 846-4101 October 28, 2003 Amanda S.E. Lafferty, Esq. Stitzel Page & Fletcher, P.C. PO Box 1507 Burlington, VT 05402-1507 RE: Zoning Violation — James P. Smith Dear Amanda: Enclosed, please find a copy of a Notice of Violation sent to James P. Smith at 62 Logwood Street. Also enclosed is a copy of the Certified Mail Receipt indicating that this letter was received by Mr. Smith on October 11, 2003. The 15 day appeal period has run and he has not appealed my decision. I have spoken to Chuck Hafter regarding this violation. He has given me the approval to request that you file a complaint in Environmental Court as soon as possible. If you need mdre information, please let me know. ive Officer C I71 O1 S�J 7,11P H BURLINGTO ,, DEPARTMPF, TT OF PLAINTN IG 0k GiN�rG 575 DORSET STREET SOUTH BURLINGTON, VERMOINT 05403 (802) 846-4106 FAX (802) 846-4101 October 10, 2003 James P. Smith 62 Logwood Street South Burlington, VT 05403 RE: Zoning Violation - 62 Logwood Street Dear Mr. Smith: Please be advised that based on information available to the City, you have commenced land development on your property at the above address without obtaining a zoning permit from the City as required by Section 17.02 of the Land Development Regulations and 24 VSA 4443 (a) (I). Specifically, you have initiated the following activities on the above -described property. Operating a junk yard without a :coning permit. You have seven (7) days from the date of this letter to discontinue this violation and take appropriate remedial action. Specifically, you must accomplish the following: Remove all junk and all unregistered, inoperable motor vehicles from the premesis. If you do not accomplish the actions directed in this letter within seven (7) days of the date of this letter, the City may pursue this matter in court. In such court proceedings, the City will be entitled to seek appropriate injunctive relief and fines of up to $100.00 per day for each day your violation continues beyond the seven (7) day period provided in this letter. If the violation described in this letter occurs within twelve (12) months of the date of this letter, you will not be entitled to receive a further Notice of Violation from the City before the City pursues further enforcement proceedings. You may appeal this Notice of Violation to the Development Review Board by filing a written notice of appeal (see enclosed) and $110 within fifteen (15) days of the date of this letter with the Clerk of the Development Review Board at this address: 575 Dorset Street, South Burlington, Vermont 05403. Sincerely,...-" Rays fy Belair Administrative Officer Encl. CC: Amanda S.E. Lafferty, Esq. Certified Mail Receipt.#7002 2030 0651 3528 'y*+A' 4 �". ,{�Pa ��w'��T~ 1•'' ,a'�'+'y^ � .d'`" JI /7Y a -. ! JLP .74 + 3�Iirlp`""'y� _� � _ n�. n ' ! �,�,y ti •;�''•-Tw''� .. '�"` " i �� 'r i"" ''oar M •--� r ., � fir,, _. �... y I r i. ry r^ , qt No Text Tit AL t � � IA JRQ bpi 1 &kp?w g ( •fFl� C..;f OFF rw INOTICE OF INTENT Under the authority granted to me as Health Officer of the City of South Burlington per Title 18. I.S.A. section 126, 1 hereby seek a health order against James Smith, 62 Logwood Street, South Burlington, Vermont 05403, based upon the following reasons: On November 2, 2003, 1 -received a copy of e-mail from Ms. Mary Fran Holly of 95 Logwood Street complaining of a pile of refuse at 47 ( sic ) Logwood Street; the actual address was 62 Logwood Street. 2. On, November 12, 2003 1 visited the Smith residence at 62 Logwood Street on observed a large pile of household refuse on the side yard of the house, inciuding some organic material. I took photographs of the area. On November 12, 2003 1 sent acertified letter to Mr. Smith asking that the garbage be removed prior to November 24, 2003. I did not receive back a notice of service. On numerous occasions I have called Mr. Smith, but have never received an answer or connected to an answering machine. The last occasion was at I I :'j 0 am on November 24, 2003. 4. OnNovember '24, 2003 1 returned to the residence at 62 Logwood Drive and observed the same collection of refuse in the same location. I again photographed the area. No change had been made to the amount of refuse. 5. 1 believe the situation to be a public health hazard and that there will be significant public health risks to the neighbors from rodents and other small animals as the weather turns colder and the animals seek refuge in the garbage pile. In addition, the organic material will decompose and cause unsanitary conditions. A neighbor to 62 Logwood reports a rat in her garage. Therefore, I will be seeking a health order at the December 15, 2003 City Council meeting at the City Hall, 575 Dorset Street, at 7:30 p.m. Notice is hereby give to James Smith, 62 Logwood Street, of my intent and if -[\/fr. Smith requests that a hearing be held to rebut my allegations, I will place an item on the agenda. Attached is a draft of the Health Order I will seek, 'my supporting evidence and a statement of procedural rights. Charles Hafter Health Officer cue A 7 M E N! � 0 F1,71 u a O C E D U L"'=az L d`v� 11 G uH Pursuant `'o T .18 V.S.A. Sec. 126 9= Sep;. I. 7 ycu a re- in ero-by '9otffi?d of ;!ou6 r9gf11sa UPON (0UR REQUEST A HEARING WILL BE HELD BEFORE THE BOARD OF SELECTMEN AT WHICH T WE YOUWILL HAVE THE OPPORTUNITY TO REBUT THE ALLEGATIONS MADE AGAINST T YOU AND DEdAONSTRA T E THAT NO HEALTH ORDER SHOULD BE ISSUED. 2, YOU HAVE THE RIGHT TO APPEAL TO THE STATE BOARD OF HEALTH ANY ACT, DECISION OR ORDER OF THE SELECT ME6Mj. 3. YOUR ,APPEAL Gir�U?ST EE MADE WITHIN 30 DA DAYS OF THE AC T , DECISION OR ORDER. 4� THE .:APPEAL HEARING IBEFC)RE THE STATE ATE BOARD OF HEALTH SHALL BE SUBJECT TO THE PROV00KIS OF T. 3 V.S.A. CHAPTER 25, THE ADMINI ST ' TiVE PROCE-DURE ,d\C T , FtEl-ATING TO CONTESTED CASES. Z, THE STATE BOARD OFHEALTH WILL HEAR FOUR APPEAL DE ONO, T HAa HS, ff WILL CONSIDER YOUR CASE ANEW, AND ALL PERSONS AND PARTIES OF 6NTEREST, AS DETERMINED BY BOARD �RL6LE, MA ,APPEAR AND BE HEARD. A, DECBS�O ON Y(r,.)UR APPEAL WILL BE MADE WITHIN 30 DABS FOLLOWING THE CONCLUSION OF THE HEARING. S. YOU IMAY APPEAL THE DECBSiON OF THE STATE BOARD OF HEALTH TO THE VERMONT SUPREME COURT. ff , FAILURE TO COMPLY WITH THE PROVISIONS OF THE HEALTH ORDER ISSUED BY THE BOARD OF SELECTMEN MAY SUBJE I T YOU TO FURTHER LEGAL ACTION INCLUDING Cl'VIL ENFORCEMENT OF THE ORDER IN THE SUPERIOR COURT AND CRIMINAL PENALTIES. STATE OF VERMONT COUNTY OF CHITTENDEN, SS. IN THE MATTER OF ACCUMULATED REFUSE AT 62 LOGWOOD STREET, HEALTH ORDER SOUTH BURLINGTON, VERMONT 05403 Upon investigation, Charles Hafter, Health Officer for the City of South Burlington has found the following: 1. On November 2, 2003 Charles Hafter received e-mail from Mary Holly, 95 Logwood Street complaining about accumulation of household refuse and garbage on the James Smith property, which is 62 Logwood Street. 2. On November 12, 2003 , Charles Hafter observed and photographed the garbage accumulated at 62 Logwood Street. 3. Charles Hafter sent a certified letter to Mr. Smith on November 12, 2003 which requested he remove the garbage by November 24, 2003. 4. On November 24, Charles Hafter re -inspected the Smith property and observed the same collection of trash and refuse and again took photographs. 5. The presence of this garbage represents an unhealthful condition and a public health hazard. Therefore, by the authority granted under 18 V.S.A. sections 107,126, and 602a., it is hereby: ORDERED, that within 3 days of receipt of this order, James Smith shall have all of the garbage on his property removed to a landfill. The South Burlington Board of Health may bring an action in Chittenden Superior Court to enforce the provisions of this Health Order. Such action shall include a request for penalties up to $10,000.00 for each violation, with each day°s continuance of the violation deemed a separate violation. ORDERED, that Mr. Smith shall store all future garbage in appropriate containers and have it removed to a landfill as often as necessary to avoid future public health hazards. Date: November 25, 2003 Signed: South Burlington City Council Supporting Evidence Attached is the supporting evidence that I, Charles Hafter, Health Officer for the City of South Burlington submit as required by 18 V.S.A. section 126 and/or 127: 1. Copy of e-mail complaint I received. 2. Photographs from the November 12, 2003 inspection. 3. Copy of the certified letter I sent to Mr. Smith on November 12, 2003. 4. Photographs from my November 24, 2003 inspection. Charles I-Iafter - Health Officer City of South Burlington Page i of 1 From: "Mary Fran Holly" <mfholly@adelphia.net> To: <chafter@sburl. com> Subject: Logwood Street Hear Mr. Condos, I am not sure if you have been on Logwood Street recently but we truly have an eyesore on our street. I believe the house number is 47, however you can not miss it as you drive on our street or up Forest to Logwood. Not Only is this house an eyesore, it is a health hazard. The owner has a pile of trash on the side of the house that is approximately six feet long, 3 feet wide and 2 feet high. The police have had to be called to this house quite frequently. I am not sure what the city can do, however, I do believe the rest of the neighborhood should have to live with this disaster in the neighborhood. Many of us discussed this house Halloween night and we all agree that we all need to take action so I am appealing to our city council to guide us on how this mess can be corrected. 1 hope to hear from you and the other council members shortly to find out what we may do. Thank you -for your time and concern in this matter. Sincerely, MaryFrances Holly 95 Logwood Street 575 DOhRSw? S T E i SCRUTH YERMION7 05403 3 H. (302) 3464 7 rAN (302) 346_4LI O u MY MANAGES CHARLES s.:HACTE November 12, 2003 REGISTERED MAIL NIT. Jaynes Smith 62 Logwood Street South Burlington, Vermont 05403 RE: Health Violation at 62 Logwood Street Dear Mr. Smith: This morning I conducted a health inspection at your home at 52 Logwood Street. This letter details any findings and requests your compliance in correcting an unhealthy situation on your property. The letter also describes actions that zviil 'be taken should you not correct the situation. Upon my inspection. I found a huge amount of garbage, household debris and other assorted gunk" piled on the side of your home. The debris pile contained organic material as well as inorganic material. It is my decision that the pile is in violation of state and local health codes based upon the presence of organic material which is likely to attract insects and other vermin. Further. the pile is in violation of state and local health codes in that the large .amount encourages the habitation of the pile by vermin and other wild animals seeking a winter refuge. Several of your neighbors have reported seeing rodents that aright be associated with your junk pile. In addition, the pile creates a fire hazard for your property. The City of South Burlington is providing you with the opportunity to clean-up this nuisance on a voluntary -basis. In order to comply, you have ten days, until November, 24, 2003 to abate the health hazard. If you do not do so. I will issue a health order requiring you to clean- up the property. Failure to do so may result in a alne or arrest; in addition the City may enter your property to do the cleaning and then bill you the cost. I hope a health order will not be required and that you will clean your property of your own will. Please feel free to contact my office if you have any questions. Sincerely, Charles Hafter City Manager Health Officer No Text cal u ck, `777,77, now 01 chuck 11/24/2003 12:46:32 PM