Nordlund v. Van Nostrand
190 Vt. 188
| Vt. | 2011Background
- Nordlund parcel (front) and back parcel abut along West Shore Road; Nordlund holds a contested 18‑foot Nordlund right‑of‑way (ROW) crossing the front parcel to reach the back parcel; Van Nostrand family later secured a separate 50‑foot Van Nostrand ROW to access the back parcel from West Shore Road without crossing Nordlund; DRB denied a variance and the zoning permit for the back parcel due to § 502 width requirements; Environmental Court initially granted the permit based on a subdivision permit, but this Court later held compliance with zoning regulations was required; the 2005 DRB-approved Van Nostrand ROW permitted development of the back parcel, and a house was constructed; Nordlund sued for private zoning enforcement under 24 V.S.A. § 4470(b) to restrict Nordlund ROW use and permit gates/signs; the Environmental Court granted summary judgment for lack of jurisdiction, and the Vermont Supreme Court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §4470(b) provides subject matter jurisdiction to enforce the Nordlund ROW use | Nordlund argues §4470(b) authorizes enforcement of decisions limiting ROW use. | Van Nostrand argues there is no enforcement decision to enforce. | No jurisdiction; no enforceable decision within §4470(b). |
| Whether the Oct. 21, 2009 denial implicitly restricts use of the Nordlund ROW | Denial relied on 18‑foot width and thus restricts ROW use for access. | Denial did not curtail the ROW's scope; it concerned width under §502. | Denial did not limit use of the Nordlund ROW. |
| Whether Sunset Cliff governs or supports enforcement here | Sunset Cliff permits §4470 enforcement to prevent noncompliant activity. | The case is distinguishable; enforcement would only apply if the permit denial prevented ongoing prohibited activity. | Inapplicable/distinguishable; not supportive of §4470 enforcement in this context. |
| Whether §4412(3) or §502 precludes use of Nordlund ROW to access the back parcel | Statutes preclude access other than the Van Nostrand ROW. | §4412(3) requires a 20‑foot ROW for development; Van Nostrand ROW satisfied regulations; does not void other rights. | Statutes do not void the Nordlund ROW; no private enforcement action exists. |
| Whether Environmental Court lacked jurisdiction because there was no violation of a zoning decision | Defendant's use violates prior decisions; §4470(b) should enforce. | There is no current violation of a zoning decision to enforce; §4470(b) not triggered. | Lacked jurisdiction; no violation of a zoning decision to enforce. |
Key Cases Cited
- Sunset Cliff Homeowners Ass'n v. City of Burlington, 184 Vt. 533 (2008 VT 56) (enforcement under §4470 depends on a binding prohibition)
- Nordlund v. Van Nostrand, 184 Vt. 557 (2008 VT 77) (remanded to address compliance with zoning regulations (mem.))
- Trybulski v. Bellows Falls Hydro-Elec. Corp., 112 Vt. 1 (1941) (statutory agency jurisdiction not presumed; special powers not defined by common law)