Town of Sandgate v. Colehamer

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-340


Town of Sandgate, et al                      Supreme Court

                                             On Appeal From
     v.                                      Bennington Superior Court

Raymond Colehamer                            June Term, 1989



Arthur J. O'Dea, J.

Witten, Saltonstall & Woolmington, P.C., Bennington, for plaintiffs-
  appellees

Michael Rose, St. Albans, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   Defendant, Raymond Colehamer, appeals an injunction, dated
June 3, 1988, granted pursuant to 24 V.S.A. {{ 2241-2283, by the Bennington
Superior Court in favor of plaintiffs, the Town of Sandgate and its
selectmen and the Sandgate Zoning Board of Adjustment.  The injunction was
issued in a suit in which plaintiffs sought the removal of junk cars and a
boat from the property occupied by defendant and owned by Sonia Siwik, who
is also joined as a defendant.  We reverse and remand.
     Plaintiffs appeal the court's February 25, 1986 decision denying them
an injunction for failure to set forth sufficient facts supporting the
Town's decision to amend its zoning ordinance.  We reverse and remand that
order also.  The effect of our action is to authorize an injunction similar
to that issued by the trial court but based on the Sandgate Zoning Ordinance
and not on the state junkyard statute.
     Defendant resides in the mountainous region of Sandgate, Vermont,
where, according to the Town Plan, "there is virtually no commercial use of
land . . . other than a few home occupations."  The log cabin in which he
resides and the surrounding land is actually owned by defendant's former
girlfriend, Sonia Siwik,(FN1) but she moved out some time ago to live elsewhere.
Defendant currently makes the mortgage payments on the cabin.
     Since 1968, when defendant moved onto the property, he has accumulated
"a collection of kitchen appliances, lawn mowers, automobiles, used wood,
old tires, gas cans, steel drums, cable reels and a small yacht," which are
left outside around the land.   Among the items strewn about the land are
twenty-one unregistered vehicles and a boat.  The trial court found that the
property was not used as a junkyard, since there is no commercial activity.
A neighbor testified that defendant's residence is an eyesore which devalues
the property of its neighbors in the area.
     Apparently, in response to the situation on the property on which
defendant resided, the Town amended its zoning ordinance in 1985 to prohibit
the storage of junk cars on property within the Town.  An amendment was
adopted that made it illegal to have "more than one inoperable motor
vehicle . . . stored on any lot for a period in excess of thirty days unless
within a building or totally screened from view from off the premises."  The
amendment required existing uses to be brought into compliance within ninety
days of the effective date of the amendment.  On July 16, 1985 the Town
zoning administrator issued citations to Sonia Siwik and Raymond Colehamer
for violation of the newly amended ordinance, giving them thirty days in
which to bring the property into compliance with the amendment.  On August
2, 1985, defendant appealed to the zoning board of adjustment.  Sonia Siwik
did not appeal.  Although the Board found the appeal to be untimely, it held
a hearing on September 30, 1985, and defendant failed to appear.  The Board
found defendant in violation of the ordinance and ordered him to remove the
junk vehicles and the boat, within thirty days of receipt of the decision.
     At this point, the action shifted to Bennington Superior Court to
which defendant appealed the decision of the Sandgate Zoning Board.  Again
Sonia Siwik did not join in the appeal.  Shortly thereafter, plaintiffs
brought an action against defendant and Sonia Siwik seeking an injunction to
require defendant to remove the junk vehicles, along with civil fines. The
actions were combined and heard in early 1986.  Sonia Siwik never answered
plaintiffs' complaint and testified at the hearing that she wanted the court
to order the removal of the cars.  The court denied plaintiffs' requests for
relief and reversed the decision of the zoning board, concluding that the
junk car amendment to the zoning ordinance was invalid because it was not
supported by the Town plan.
     An attempted appeal to this Court failed because we found that there
was no final judgment since the court had not resolved plaintiffs' claim
that they were entitled to relief under the state junkyard statute, 24
V.S.A. {{ 2241-2283, and the common law of nuisance.  The trial court then
decided that plaintiffs were entitled to relief under the statute.  It found
that defendant had maintained junk motor vehicles within view of the main-
traveled public highway in violation of 24 V.S.A. {{ 2242(2) and 2271.
Accordingly, the court issued an injunction requiring defendants to remove
the boat and all unregistered motor vehicles within the view of the traveled
way of any public highway by 5 p.m. on July 5, 1988.  Further, defendants
were prohibited from placing any other junk motor vehicles on the property
within view of the main traveled way of any public highway.  If defendants
failed to comply with the order, plaintiffs were authorized to remove the
junk motor vehicles and dispose of them to pay for their removal costs.
Since the court granted plaintiffs relief under the state junkyard statute,
it did not reach plaintiffs' common-law nuisance claim.  Both defendant (FN2)
and plaintiffs (FN3) appeal the trial court's decision.
                                    I.
     We consider first plaintiffs' appeal from the 1986 decision that the
provisions of the ordinance with respect to junk vehicles are invalid.
Plaintiffs assert that the court's decision is erroneous because: (1)
defendant's appeal should have been dismissed because he is not the owner of
the land and does not have standing to contest the action of the zoning
board; and (2) the ordinance amendments are valid, and plaintiffs were
entitled to an injunction under them.
     There are actually two standing issues in this case, one in each of the
combined cases.  The first issue is whether defendant has standing to pursue
an appeal from the zoning board to the superior court.  Under 24 V.S.A. {
4471, an appeal may be taken only by an "interested person."  This term is
defined in 24 V.S.A. { 4464(b)(1) to include:
           A person owning title to property affected by a by-
         law who alleges that such regulation imposes on such
         property unreasonable or inappropriate restrictions of
         present or potential use under the particular
         circumstances of the case.

There is no other part of the definition that could apply to defendant's
situation; if defendant does not fit within { 4464(b)(1), he lacks standing.
     This Court construed { 4464(b)(1) in Mad River Valley Enterprises, Inc.
v. Town of Warren Board of Adjustment, 146 Vt. 126, 499 A.2d 759 (1985).
There, a developer sought zoning approval to construct a condominium hotel,
but the evidence showed that the developer's interest in the property would
be obtained in the future.  This Court held that the developer's "shared
interest" with the title-owners in the "common goal" of the development of
the property was insufficient to confer standing under the wording of the
statute.  Id. at 129, 499 A.2d 761.  Defendant seeks to avoid the
application of Mad River Valley Enterprises by arguing that the term "title"
in the statute doesn't mean record title and the term "property" can include
personal property, here the cars and the boat, as well as real property.
     We cannot interpret the statute as broadly as defendant argues.  As we
emphasized recently, we must interpret a zoning statute in light of the
whole statutory scheme, "the subject matter, its effects and consequences,
and the reason and spirit of the law."  Nash v. Warren Zoning Board of
Adjustment, 152 Vt. ____, ____, 569 A.2d 447, 450 (1989) (quoting In re R.S.
Audley, Inc., 151 Vt. 513, 517, 562 A.2d 1046, 1049 (1989).  Our objective
is to give effect to the intent of the legislature.  In the context of the
overall zoning statutes, the term "property" clearly refers to the real
property that is regulated by zoning.  See, e.g., 24 V.S.A. { 4401(b)(1)
(zoning regulations relate to "land development").  While something less
than record title to land may be sufficient to confer standing, defendant
has failed to show that he has any title at all. (FN4) For the above reason,
defendant lacked standing to appeal to the superior court, and his appeal
should have been dismissed.
     It is not clear, however, that the reversal of defendant's appeal to
the superior court would have any impact on the trial court's order.  As
noted above, the trial court was dealing with two proceedings, and it denied
plaintiffs relief because it found the zoning provision under which they
were proceeding to be invalid.  Presumably, that ruling would stand despite
the dismissal of defendant's appeal.  Thus, we must address whether a person
in defendant's position can defend against a zoning enforcement action on
the basis that the applicable zoning requirement is invalid.
     To resolve this question, we can first treat defendant as if he were
the record title owner of the property.  Even in this posture, defendant
must confront the appeal statute, 24 V.S.A. { 4472, and its exclusivity-of-
remedy provision.  The appeal statute provides, in relevant part:
         [T]he exclusive remedy of an interested person with
         respect to any decision or act taken, or any failure to
         act, under this chapter or with respect to any one or
         more of the provisions of any plan or bylaw shall be the
         appeal to the board of adjustment under section 4464 of
         this title, and the appeal to superior court from an
         adverse decision upon such appeal under section 4471 of
         this title. . . .

24 V.S.A. { 4472(a).  The exclusivity-of-remedy provision, { 4472(d), adds:
         Upon the failure of any interested person to appeal to a
         board of adjustment under section 4464 of this title, or
         to appeal to superior court under section 4471 of this
         title, all interested persons affected shall be bound by
         such decision or act of such officer, such provisions,
         or such decisions of the board, as the case may be, and
         shall not thereafter contest, either directly or
         indirectly, such decision or act, such provision, or
         such decision of the board in any proceeding, including
         without limitation, any proceeding brought to enforce
         this chapter.

There is an exception to the exhaustion requirement in the zoning board for
challenges to the constitutionality of a zoning ordinance.  24 V.S.A. {
4472(b).  See Hinsdale v. Village of Essex Junction, ___ Vt. ___, ___, 572 A.2d 925, 929 (1990).
     We have strictly enforced the exclusivity-of-remedy provision
consistent with the evident legislative intent to require all zoning
contests to go through the administrative review process in a timely
fashion.  See, e.g., Hinsdale, id. at ___, 572 A.2d  at 929; Levy v. Town of
St. Albans Zoning Board of Adjustment, 152 Vt. 139, 142, 564 A.2d 1361, 1363
(1989) (exclusivity-of-remedy provision applies even where plaintiffs allege
that a zoning board decision was "void ab initio").  We have never addressed
directly whether the provision forecloses a nonconstitutional attack on the
validity of a zoning ordinance as a defense to an enforcement action brought
by the town pursuant to 24 V.S.A. {{ 4444, 4445.  A number of our decisions
involve such attacks although the jurisdictional question was evidently not
raised.  See, e.g., Town of Westford v. Kilburn, 131 Vt. 120, 121, 300 A.2d 523, 524 (1973); Town of Mendon v. Ezzo, 129 Vt. 351, 353, 278 A.2d 726,
727-28 (1971).  Without addressing the statute, the Court did consider the
res judicata affect of earlier zoning board action on an attack on the
validity of the zoning ordinance in Town of Waterford v. Pike Industries,
135 Vt. 193, 194-95, 373 A.2d 528, 529-30 (1977).
     In Pike Industries, the landowner had sought unsuccessfully to obtain a
variance from the requirements of the zoning ordinance, and the town argued
that the unsuccessful variance proceeding precluded the landowner from
defending against an enforcement action with an attack on the validity of
the ordinance.  The Court held that the earlier proceeding was not res
judicata, relying heavily on the fact that the landowner had no opportunity
in the zoning board variance proceeding to make a factual record on the
validity of the zoning ordinance and the superior court on review was
limited to the record made in the zoning board.  Id. at 195, 373 A.2d  at
530.  The Court noted, however, that the statute had been amended after the
landowner's appeal to allow for de novo consideration in superior court,
suggesting that a de novo proceeding in superior court might have res
judicata effect.  This reading of Pike Industries is reinforced by Galanes
v. Town of Brattleboro, 136 Vt. 235, 237, 388 A.2d 406, 408 (1978), where
the landowners attacked the ordinance in a separate proceeding after
failing to appeal from the denial of a variance.  The Court allowed the
proceeding because it was a constitutional attack, stating that "unless the
action . . . violated a constitutional right of the plaintiffs put forward
in the proceedings, the amendments [to the zoning ordinance] cannot now be
attacked in this litigation."  Id. (FN5)
     By its terms, { 4472(d) clearly applies to defenses raised in
enforcement proceedings and clearly applies to attacks on the validity of
zoning provisions unless they raise constitutional issues.  Further, the
statutes broadly give a right of appeal of "any decision or act taken, by
the administrative officer."  24 V.S.A. { 4464(a).  In this case, the zoning
administrator sent defendant a letter stating that he had determined that
defendant was not complying with the ordinance, giving defendant thirty days
to comply and informing defendant of his right to appeal to the zoning board
from "my decision."  He sent an identical letter to Sonia Siwik.  We hold
that defendant's exclusive remedy to challenge the validity of the zoning
amendment dealing with junk cars was in the appeal process from the zoning
administrator's decision to cite him for violation of the ordinance.  He can
not raise it in this enforcement action even if he has no standing in the
appeal.  The Legislature can make the judgment that it will not allow
possessors of land to challenge the validity of zoning restrictions imposed
on that land without the active involvement of the owner of the land.
     Even if defendant had standing, we cannot accept his challenge to the
validity of the amendment covering junk cars.  The trial court held that it
was inadequately supported by the Sandgate town plan, in part because it
concluded that the restrictions were justified solely by aesthetic
considerations.
     In a 1943 decision, Vermont Salvage Corp. v. Village of Saint
Johnsbury, 113 Vt. 341, 351, 34 A.2d 188, 194-95 (1943), this Court held
that land use regulation justified solely on aesthetic considerations is
unconstitutional.  The Court went on to hold that operation of a junkyard is
a legitimate and useful business that cannot be declared a nuisance and
restricted solely because it is unsightly.  Id. at 354-55, 34 A.2d  at 196.
Vermont Salvage Corp. is no longer good constitutional law in light of the
United States Supreme Court decisions in Berman v. Parker, 348 U.S. 26, 32-
33 (1954) and Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510
(1981).  The majority of courts which have looked at this question in recent
years have upheld zoning for aesthetic purposes.  See 3 P. Rohan, Zoning and
Land Use Controls { 16.05 (1990).
     The Vermont Legislature has now recognized aesthetics as a purpose of
zoning regulation.  See 24 V.S.A. { 4302(a)(4) (a purpose of zoning is to
"encourage and enhance the attractiveness of the Vermont scene").  The
Legislature has also specifically authorized local regulation of junkyards
"now or hereafter established."  24 V.S.A. { 2246.  For purposes of this
authorization, "junkyard" means a place of outdoor storage of junk whether
or not in connection with a business.  24 V.S.A. { 2241(7).
     In light of the clear policy of the Legislature, we see no reason to
continue to question the validity of zoning regulations intended in whole or
in part to protect aesthetics.  Further, there is no requirement in our law
that specific regulations that are based in part on aesthetic considerations
have greater support in the local plan.  The issue of plan conformity must
be analyzed under the general standards that have developed in this area.
     Under 24 V.S.A. { 4401(a) zoning ordinances must have as their purpose
the implementation of the town plan and must be in "accord with the policies
set forth therein."  The test of consistency is set forth fully in
Kalakowski v. John A. Russell Corp., 137 Vt. 219, 401 A.2d 906 (1979), as
follows:  "Zoning is properly conceived of as the partial implementation of
a plan of broader scope.  It must reflect the plan, but it need not be
controlled by it."  Id. at 225, 401 A.2d  at 910 (citations omitted).  See
also Smith v. Town of St. Johnsbury, 150 Vt. 351, 361, 554 A.2d 233, 240
(1988) (applying Kalakowski test).  The Sandgate town plan attempts to limit
development, maintain open space and achieve "the best possible quality of
environment for the Town's residents."  It exhorts that "conservation and
proper management of open land is strongly encouraged."  The zoning
amendment in issue here sufficiently "reflect[s] the plan."  It is not
invalid on the grounds relied upon by the trial court.
     Defendant raises two additional arguments here.  We consider them
because they were raised in defendant's pleadings although not addressed by
the trial court.  The first is that the storage of junk cars is a
preexisting nonconforming use that may not now be terminated.  The evidence
supports defendant's position that most, if not all, of the vehicles were
stored on the land prior to the adoption of the zoning amendment.  We will
accept for purposes of argument that the storage of junk vehicles is the
kind of use protected by the preexisting nonconforming use policy, and we
will also assume that such a use cannot be prohibited by a new zoning
provision.  To achieve this status, however, the landowner (or here,
possessor) has the burden of showing that the use was lawful under the
zoning provisions before the amendment.  See Town of Shelburne v. Kaelin,
138 Vt. 247, 249, 415 A.2d 194, 196 (1980).  Defendant has failed to make
this showing.  At best, the evidence suggests that the earlier zoning
provisions were silent on storage of vehicles.  Since the storage of
vehicles is not specified as a permitted use, such storage could be lawful
only as an accessory usage to the primary residential usage.  The ordinance
appears to allow such usage where "customarily incidental to a permitted
use."  We cannot find on this record that the storage of numerous junk cars
and a boat is an accessory use customarily incidental to a residence.  See,
e.g., Galliford v. Commonwealth, 60 Pa. Commw. 175, ___, 430 A.2d 1222,
1224 (1981) (storage of large truck that cannot be screened from public
sight is not usage accessory to the residential use of the property).
     Second, defendant argues that the zoning amendment was passed solely to
eliminate defendant's vehicles and thus is unconstitutional under Chapter I,
Article 7 of the Vermont Constitution as legislation that prefers one group
over another.  See State v. Ludlow Supermarkets Inc., 141 Vt. 261, 269, 448 A.2d 791, 795 (1982).  The  test of constitutionality in the absence of a
fundamental right or suspect class is "whether the law's paramount purpose
is reasonably related to the promotion of a valid public interest."
Choquette v. Perrault, 152 Vt. ___, ___, 569 A.2d 455, 459 (1989).  The
amendment has a number of purposes, including aesthetics, as discussed
above, and the elimination of an unattractive nuisance.  See Vermont
Salvage Corp. v. Village of St. Johnsbury, 113 Vt. at 347-48, 34 A.2d  at
192-93.  We have no doubt that its purposes are reasonably related to the
public interest.  The amendment is neutral on its face and applies both to
preexisting land uses and future ones.  Even if the defendant was the only
person storing a large number of junk cars at the time of the passage of the
amendment, this does not make the amendment unconstitutional. (FN6)
     Having concluded that defendant lacked standing to challenge the
zoning ordinance in defending against plaintiffs' action and that, in any
event, his challenges to the ordinance are unavailing, we see no reason why
plaintiffs are not entitled to appropriate equitable relief.  See Town of
Sherburne v. Carpenter, 1 Vt. L.W. 345, 347 (1990).  The dismissal of the
complaint and the failure to afford appropriate relief pursuant to the
zoning ordinance was therefore error.
                                    II.
     We next consider defendant's challenges to the 1988 injunction issued
under the state junkyard statute.  Defendant argues that (1) his junkyard
preceded the statute and is grandfathered; and (2) he is entitled to be paid
compensation under the statute.  The junkyard statute was first raised in
plaintiffs' complaint under the heading "Public Nuisance."  Plaintiffs
alleged that defendants violated 24 V.S.A. { 2271 which reads:
           No one may place, discard or abandon a junk motor
         vehicle in a place where it is visible from the main
         traveled way of a highway nor may anyone abandon or
         discard any motor vehicle upon the land of another with
         or without the consent of the land owner.  Motor
         vehicles so placed, discarded or abandoned are hereby
         declared to be a public nuisance.

The trial court failed to address this contention in the original hearing,
prompting the remand from this Court.  At the second hearing, with no
further evidence, the court concluded that defendants had violated { 2271
and also that defendants had violated 24 V.S.A. { 2242(2).  That section,
not pled by plaintiffs, requires a person who operates, establishes or
maintains a junkyard to hold a license for such purpose.  A junkyard is
defined to include a place for outdoor storage "not in connection with a
business" that is maintained or used to store "four or more junk vehicles
which are visible from any portion of a public highway."  24 V.S.A. {
2241(7).  The definition was expanded in 1984 to cover junkyards not
operated as a business in the wake of our decision in Vermont Agency of
Transportation v. Sumner, 142 Vt. 577, 579, 460 A.2d 446, 447 (1983) that
the prior law required licensing only of a junkyard business.
     We can quickly dispose of the licensing theory added in the last
hearing before the trial court.  Although the court found that defendant
held no license under { 2242, there was no evidence under which a finding
could be made. (FN7) Accordingly, we cannot affirm a conclusion that defendant
maintained a junkyard without a license. (FN8)
     Plaintiffs' theory under { 2271 is better grounded in the facts of this
case.  The statute makes the abandonment of junk cars in a place visible
from the main traveled way of a highway a public nuisance.  The selectmen of
the town have the power to bring actions seeking an injunction to abate a
public nuisance within the town.  24 V.S.A. { 2121.  There is no question
that defendant has placed junk cars on the land of Sonia Siwik so they are
visible from the main traveled way of a highway.
     Section 2271 was enacted in 1969 and became effective on July 1st of
that year.  See 1969 No. 98, { 1; 1 V.S.A. { 212 (statutes become effective
on July 1st following the date of their passage, unless otherwise
specified).  The court found that defendant's junkyard came into existence
in 1968 and continued to grow thereafter.  The statute, by its terms, is
prospective and applies to placements of junk cars after its effective date.
See Whitney v. Fisher, 138 Vt. 468, 470, 417 A.2d 934, 935 (1980) (except
for certain limited exceptions, statutes are prospective); United States v.
United States Fidelity & Guar. Co., 80 Vt. 84, 97, 66 A. 809, 814 (1907)
(statute should not be construed to operate retrospectively unless "it's
language is so clear as to admit of no other construction.").  Thus, based
on the evidence, some of the vehicles are subject to the statute and some
are not.  The order of the court does not distinguish among vehicles; it
directs the removal of "any and all unregistered motor vehicles, including
the boat, within view of the main traveled way of any public highway."
Plaintiffs did not put on evidence that would have allowed the court to
specify which vehicles were placed on the property after the effective date
of the statute.  We cannot affirm the court's injunction based on a
violation of 24 V.S.A. { 2271. (FN9)
     In summary, our conclusion is that the plaintiffs have shown a
violation of the junk vehicle amendment to the Sandgate Zoning Ordinance and
this amendment is valid.  Thus, they are entitled to an injunction to
enforce the ordinance.  On the other hand, we must reverse and remand the
order requiring the removal of defendant's vehicles because plaintiffs have
failed to show that defendant lacked a state junkyard license and because
the injunction is too broad to enforce a violation of { 2271.  While the
injunction issued to enforce the zoning ordinance will be similar to that
issued to enforce the junkyard law, there will likely be some differences in
the terms.  In any event, a new injunction is needed to specify new dates by
which defendants must act to comply with its terms.
     Reversed and remanded for proceedings consistent with this opinion.

                                        FOR THE COURT:




                                        Associate Justice




FN1.    Although Sonia Siwik is also a defendant, she has not appeared and,
in fact, testified for the plaintiffs in the injunction hearing.  To avoid
confusion, we have referred to her by name in this opinion.  We have
occasionally refer to both Raymond Colehamer and Sonia Siwik as defendants.

FN2.    Defendant appealed the Bennington Superior Court's June 2, 1988,
decision granting plaintiffs' request for injunctive relief.  Defendant's
request for a stay of the injunction was granted until the appeal is decided
by this Court.

FN3.    Plaintiffs cross-appealed the trial court's February 25, 1986
ruling that the amendment to the zoning ordinance is unenforceable.

FN4.    The Mad River Valley Enterprises decision suggests that equitable
title may be sufficient to meet the standing requirement.  The developer in
that case claimed title under an assignment of a purchase and sale agreement
with the record titleholder.  The Court relied on the trial court's finding
that the assignment did not exist, implying that the interest created by the
purchase and sales agreement would have been sufficient.  146 Vt. at 128-29,
499 A.2d  at 760-61.
     Defendant appears to be arguing that he has equitable title based on
possession plus his ongoing mortgage payments.  We cannot conclude that
these two facts alone are sufficient to create equitable title.  At best,
they might create some kind of equitable mortgage interest.  See Tromblay v.
Dacres, 135 Vt. 335, 339, 376 A.2d 753, 756 (1977).

FN5.    We recognize that a broad reading of Pike Industries is undercut
somewhat by Town of Shelburne v. Kaelin, 136 Vt. 248, 250-51, 388 A.2d 398,
399-400 (1978), where we allowed a landowner to defend a zoning enforcement
action on the basis that the usage in question was a preexisting
nonconforming use, although the landowner failed to raise the issue in an
earlier variance proceeding.  It is not clear in Kaelin, however, that the
zoning administrator had ever ruled on the nonconforming use question.
Thus, it is possible that the landowner never had a decision from which he
could appeal.

FN6.    In fact, the evidence indicated that the ordinance amendment was
enforced successfully against another town resident with junk cars.

FN7.    There was evidence that defendant applied for a "junkyard permit"
and received a response from the zoning administrator of the Town of
Sandgate that junkyards are not a permitted use within the town.  The
license referred to in { 2242 is issued by the Vermont Transportation Board.
See 24 V.S.A. { 2262.  Although the town does become involved in the siting
of a licensed junkyard, 24 V.S.A. {{ 2251-56, and the reference in the
testimony could have been to the town certificate of approved location, 24
V.S.A. { 2251, the evidence of the correspondence with the town officer is
too sparse to support a finding that defendant lacks a state license.

FN8.    Although defendant did not raise this issue on appeal, we exercise
our discretion to raise it sua sponte where the claim was not raised in
plaintiffs' complaint and plaintiffs failed to prove an essential element.
See State v. Ward, 151 Vt. 448, 449, 562 A.2d 1040, 1041 (1989).  This is a
case where the fact involved was clearly outside the ambit of the
litigation.  See Moonves v. Hill, 134 Vt. 352, 355, 360 A.2d 59, 62 (1976).

FN9.    Since we conclude that the injunction was issued improperly, we need
not address defendant's claim that he was entitled to compensation under the
statute.