Chester board begins to look at regulating junk Zoning administrator under fire from area businesses

By Shawn Cunningham
© 2018 Telegraph Publishing LLC

The third try was the charm as town attorney Jim Carroll of Middlebury finally made his twice-snow-delayed trek to Chester to brief the Select Board on a draft salvage yard ordinance, the employee status of a zoning administrator, and the town’s budget committee and how it might be reconstituted.

Carroll also briefly discussed Sandri Corp.’s purchase of a slice of town property behind the Sunoco station on Main Street.

The question of a salvage yard ordinance had come up 15 years or more in the past, Carroll told the board, and it was narrowly defeated at the polls. The current question was raised last September when residents near the intersections of Route 10 and Chandler Road and Amsden Hill Road complained about three residences where tires, old cars, appliances and other items were piled up – sometimes blocking roadway sight lines and even blocking the roadway itself.

Since then, Carroll has researched the statutes and worked on a draft salvage yard ordinance. Last Wednesday, he walked the board through the statutory authority for enacting such an ordinance and the downsides of trying to enforce it.

He noted that a salvage yard conducting a commercial business would need a conditional use permit, but that such a use does not exist under the current zoning bylaws. He added that material collected on a residential property would be difficult to regulate since defining that collection is subjective:  One man’s trash is another man’s treasure.

“Is it junk or the property of someone who treats it in a different way than you and I do? When does property cross that line?”

Jim Carroll
Attorney
Town of Chester

Carroll said that’s why the term “junk” is not used in statute, and that the term “salvage” is more appropriate and also regulated by state law. “Is it junk or the property of someone who treats it in a different way than you and I do?” asked Carroll. “When does property cross that line?”

“The courts have given leeway to the landowners,” Carroll told the board.

While he said that under state law, the Select Board has the authority to enact a salvage ordinance separate from the zoning code (and subject to a public vote if 5 percent of the town’s voters petition to overturn it) he noted that getting the change the town wants – a cleanup – may prove much more difficult and expensive.

“Owners often have little or no resources,” said Carroll. “And it takes a lot of time and energy to enforce.”

According to Carroll, these violations are civil – like tickets – and go to the Judicial Bureau. Unlike unpaid traffic tickets where a driver’s license can be suspended, there is no privilege to take away for unpaid trash fines. If fines build up over time, the town might be able to foreclose on a property, but the process would be expensive and the town would end up paying for the cleanup and inherit the liability for problems such as hazardous material contamination.

“You are stepping into the breach,” said Carroll who urged due diligence in assessing a foreclosure action.

Chester resident Gary Rappanoti brought up the situation on Amsden Hill Road in which a truck in the right-of-way caused a school bus with children aboard to drive around and go into a ditch. Carroll said that he would advise the town how to use Title 19 as it relates to obstructions in the highway and that there is the potential to do something in such a case.

Audience members pointed to an address on Rt. 11 West where objects are next to, and sometimes spill into, the road. Carroll said that on a state road, it becomes a state issue and offered to make sure the Assistant Attorney General gets a copy of any letter the town sends to VTrans regarding a cleanup.

Budget committee considered; zoning admin status mulled

Carroll also walked the board through a history of the town’s budget committee dating back to the 1950s when it consisted of the Select Board, town manager, school directors, school superintendent, auditors and between five and 15 citizens including the listers, all elected at Town Meeting. The only rub was that the town was acting outside of legal bounds.

It was not until 2013 that the legislature allowed towns to create a budget committee – with advisory powers only – of up to five members elected by ballot if the voters decided to create such a committee.

Carroll noted that in the past few years not many have run for the town committee of six members and he suggested that an article be crafted for the next Town Meeting that brings it in line with statute at five members, if the board wants a public budget committee.

The reappointment Michael Normyle as the town’s zoning administrator has raised questions around the supervision of that post and issue of discipline or dismissal if it were to be necessary.

Carroll told the board that ZA position is not “at will” as many town posts are, but “for cause,” referring to the bar that must be reached for dismissal. In such cases, employment is a “property interest” and discipline and dismissal require a hearing.

In such an event, according to Carroll, the town manager would be the supervisor and he or she would consult with the Planning Commission and bring a recommendation to the Select Board, which would then decide.

Carroll said that the statute clearly says that the zoning administrator must administer the town’s bylaws literally and that he has no power to permit any land development that is not in conformance with the bylaws.

One resident asked if a zoning administrator knew a law was going to be changed, could he allow a new use before the change was made.

Carroll said no, the administrator must use the bylaws as they exist.

Business owners question zoning enforcement fairness

During  public comment, Melissa Howe, owner of the Endless Creations Pottery Studio at Maple and Main streets, complained that Zoning Administrator Michael Normyle had brought an action against her for sign violations while other businesses in town had similar installations of signs that have been out of compliance for years.

Howe said that she received a notice with an enforcement date, then another with a different (sooner) date and with the threat of $100 per day in fines. Under that pressure, she said, she felt she had to rip down expensive signs that she sees as necessary to her business. Howe said it will be two years in June since she purchased the building and renovated what she said was an eyesore.

Howe said she had tried to keep signage tasteful and was told that she could put signs in her windows if she wanted. “That works for selling cigarettes at the gas station, but I don’t want to junk up my windows,” said Howe.  “What are my rights here, do I have to get a lawyer?” Howe asked if Normyle is sending the notices to everyone.

“We definitely don’t want to
discourage business in town.”

Arne Jonynas
Select Board chair

“I don’t know the background – we can look into it, but we’re not able to do anything tonight,” said Jonynas. “But we definitely don’t want to discourage business in town.”

“We were told it was an issue and we can’t ask for anything if we are out of compliance,” said Howe.

Jonynas said he hopes that they can come to some sort of solution.

Toward the end of the meeting, following Carroll’s discussion of the Zoning Administrator’s position, Jersey Girls Dairy owner Lisa Kaiman told the board that Normyle had put her Route 103 retail store out of business.

“He called the state on me,” said Kaiman. The state “told me that no town had ever called them on this,” she said. The fix, she said, would have been a $20,000 upgrade of a mound septic system that Kaiman said was functioning properly and the only alternative was to close the business.

“We want him to be fair and hope he doesn’t go out after people,” said Jonynas.

“I’m not the only person who has had issues with him,” said Kaiman.

“At least now we have a process,” said board member Ben Whalen.