Phillips Construction v. Ferrisburg

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. 89-098


Phillips Construction Services, Inc.         Supreme Court

     v.                                      On Appeal from
                                             Addison Superior Court
Town of Ferrisburg
                                             November Term, 1989

Hilton H. Dier, Jr., J.

Peter Sidel and Diana Pikulski of Sidel & Associates, Waitsfield, for
   plaintiff-appellant

Geoffrey Commons of Kelley, Meub, Powers & English, Ltd., Middlebury, for
   defendant-appellee

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


     PECK, J.  Plaintiff Phillips Construction Services, Inc. appeals from
the superior court's order granting defendant Town of Ferrisburg's motion to
dismiss.  We affirm.
     On March 2, 1987, William Kennerson applied to the zoning administrator
of the Town of Ferrisburg for a zoning permit allowing him to rebuild a
garage and make improvements to his home.  According to the application, the
height of the proposed structure was twenty-one and one-half feet; local
zoning regulations restrict building height to twenty feet in the district
in question.  The applicant also indicated compliance with setback require-
ments in the plans submitted, but when the garage was ultimately built,
plaintiff, an adjoining landowner, maintains that it did not conform to
those requirements.  This latter claim is still disputed by the parties,
since it is based on the existence of an alleged right-of-way which is the
subject of a separate action in superior court.
     The application was approved on March 9, and the permit noted that
pursuant to 24 V.S.A. { 4464(a), interested persons had fifteen days to
appeal the administrator's decision.  The trial court found that notice of
the decision was duly posted in accordance with the statute, 24 V.S.A. {
4443(b)(2).  Plaintiff appealed the decision to the Zoning Board of
Adjustment (ZBA) on July 1, 1987.  On July 7, plaintiff also appealed to the
ZBA the decision of December 3, 1986, permitting a subdivision of the land
where Kennerson's home and garage are located.
     In both appeals, plaintiff claimed that Kennerson had been allowed an
extension of a nonconforming use without a proper variance under the Town's
zoning bylaws, and that the Town's actions violated the bylaws and various
provisions of Title 24, Chapter 117.  The ZBA dismissed both appeals as
untimely, and plaintiff filed suit in superior court, seeking relief in the
nature of a writ of mandamus to compel the Town to perform its ministerial
duties.  The court determined that it had no authority to order the
requested relief, and granted defendant's motion to dismiss.  This appeal
followed.
     The trial court determined that the exclusive remedy available to
plaintiff was a timely appeal to the zoning board under Chapter 117, 24
V.S.A. (FN1)  We agree.  This Court has previously noted a clear "legislative
policy  to deny extraordinary relief, and other collateral remedies" to
plaintiffs who had not availed themselves of the relief provided by statute.
Fisher v. Town of Marlboro, 132 Vt. 533, 534-35, 323 A.2d 577, 578 (1974).
The trial court was correct in deciding that it had no authority to issue a
writ of mandamus.  Because plaintiff did not challenge the zoning board's
actions by timely appeal under the statute, it was bound by those proceed-
ings.  McGlynn v. Town of Woodbury, 148 Vt. 340, 343, 533 A.2d 1187, 1190
(1987).
     Plaintiff claims that because the Board acted outside the scope of its
authority, mandamus is the appropriate relief, particularly since plaintiff
alleges lack of notice of the Board's determinations.  We have recently
held, however, that "even where the board's ruling is ultra vires," 24
V.S.A. { 4472(d) "unequivocally forecloses" a challenge to that ruling,
absent a timely, direct appeal.  Levy v. Town of St. Albans Zoning Bd. of
Adjustment,     Vt.    ,    , 564 A.2d 1361, 1363-64 (1989).  Furthermore,
the trial court's opinion and order notes that after examining the permit in
relation to the zoning bylaws, the court was "satisfied that the permit
[was] in conformity therewith."
     The Town urges that sanctions be imposed in this case, characterizing
plaintiff's contentions as frivolous and unfounded in law.  A similar motion
was denied in the trial court, and we decline to reconsider it here.
     Affirmed.
                                        FOR THE COURT:

                                        __________________________________
                                        Associate Justice




FN1.  24 V.S.A. { 4472(a) provides that

	the 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 a superior court from an adverse decision
	upon such appeal under section 4471 of this title.