In re Carrier

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
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                                No. 88-351


In re Application of                         Supreme Court
  Bernard and Suzanne Carrier
                                             On Appeal from
                                             Orleans Superior Court

                                             April Term, 1990


Alan W. Cheever, J.

Rexford & Kilmartin, Newport, for appellant

Robert P. Davison, Jr. and Todd C. Hartsuff of Robert P. Davison, Jr., P.C.,
  Stowe, for appellees


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


     GIBSON, J.   Richard and Daniel Scott and Bluffside Farms appeal a
superior court order granting site plan approval to Bernard and Suzanne
Carrier for a nine-lot residential subdivision of a 10.5-acre parcel of land
bordering Lake Memphremagog.  We affirm.
                                    I.
     In July of 1985, shortly after purchasing the 10.5-acre parcel, the
Carriers petitioned the Newport Planning Commission for site plan approval
for a nine-lot residential subdivision of the land, which is zoned "general
residential" but also located within a "shoreland control" district.  The
Commission granted its approval for lots 1-6, but withheld action on lots 7-
9 until the applicants could present an amended permit showing permanent
access to those lots.  Abutting property owners Bluffside Farms and its
owners, the Scotts (hereinafter, collectively, Bluffside Farms), appealed
the site plan approval for lots 1-6 to Orleans Superior Court.  Three months
later, the Commission denied the application for lots 7-9, and the Carriers
appealed that decision to superior court.  At the same time, the Carriers
(1) crossclaimed against the City of Newport, contending that the City had
acquired title to Bigelow's Bluff Road ÄÄ a road adjoining the proposed lots
ÄÄ by dedication and acceptance, and (2) counterclaimed against Bluffside
Farms, asserting that Bluffside had no interest in the road since it was a
public road and its recent conveyance to Bluffside had been fraudulent and
without consideration.
     In March of 1986 in a de novo hearing following consolidation of the
appeals, the Orleans Superior Court denied the site plan application and
dismissed with prejudice all the claims of the parties.  The court found,
among other things, that (1) the Carriers had not submitted a survey of the
property showing the features that existed before excavation and landscaping
of the site began; (2) Bigelow's Bluff Road was a public road, but was only
twelve to seventeen feet wide and was not designed to provide safe access to
the Carrier development; and (3) since Bigelow's Bluff Road was a public
road, there was no need to determine whether an interest in the road had
been conveyed to Bluffside Farms.  The court concluded that the site plan
application failed to comply with the Newport Zoning Regulations; specific-
ally, the court stated that the proposed subdivision was not harmonious with
existing adjacent uses and did not provide for maximum traffic safety and
circulation between the site and the street network.
     The Carriers then filed a motion to amend, asking the court to find
that Bigelow's Bluff Road is a Newport City street by virtue of dedication
and acceptance.  The court denied that motion and a subsequent motion for
reconsideration, pointing out that the motion to amend was not timely filed
and that V.R.C.P. 60 was inapplicable.  The court also noted that the use of
a road by the public does not, by itself, show acceptance.
     In May of 1986, the Carriers made a second attempt at gaining site plan
approval.  The Planning Commission denied this application, and the Carriers
again appealed to the superior court.  Bluffside Farms moved to dismiss the
appeal, claiming that the second application was not sufficiently different
from the first and thus was barred by res judicata.  The court denied this
motion.  Moreover, in response to a Carrier motion, the court determined
that the finding in the first appeal that Bigelow's Bluff Road was a public
road had not been essential to that judgment and thus was not conclusive for
purposes of the second appeal.
     On October 26, 1987, the court denied the Carriers' second appeal,
insofar as the proposed development did not comply with Newport Zoning
Regulation { 352(2) and (3), which requires that the Commission consider
"maximum safety of vehicular circulation between the site and the street
network" and "adequacy of circulation, parking and loading facilities with
particular attention to safety."  Although the court found that the
"interior road and Bigelow's Bluff Road are functionally inadequate to
accommodate the flow of traffic that would arise from the development," it
also found that Bigelow's Bluff Road had been dedicated to the public and
accepted by the City of Newport, and, therefore, was a public road as
required by { 502 of the Newport Zoning Regulations.  The court found that
the road had been dedicated to public use since the early part of the 20th
century, and that city maintenance of the road constituted acceptance.
     After several motions from both sides, the court granted the Carriers'
motion for a partial retrial.  On April 11, 1988, following an evidentiary
hearing, the court amended certain findings and conclusions and granted site
plan approval based on the fact that the proposed improvements to Bigelow's
Bluff Road satisfied { 352(2) and (3) of the Newport Zoning Regulations.
The court denied Bluffside Farms' motion for a new trial, and the present
appeal followed.
     On appeal, Bluffside Farms argues that (1) the court's order from the
first litigation, which dismissed all claims of the parties with prejudice,
was res judicata concerning the status of Bigelow's Bluff Road; (2) the
court was required to deny the Carriers' second site plan application
because res judicata and collateral estoppel precluded the court from
reconsidering the lack of a survey of preexisting conditions, the forbidden
use of stumps for fill, the unsafe condition of Bigelow's Bluff Road, and
the lack of a harmonious relationship between proposed uses and existing
adjacent uses; and (3) the court, while acting as the Newport Planning
Commission in the second litigation, exceeded its subject matter juris-
diction and acted without necessary parties in determining title to
Bigelow's Bluff Road.
                                    II.
     Bluffside Farms first argues that the dismissal of the Carriers'
counterclaim and crossclaim in the first litigation constituted a final
determination that Bigelow's Bluff Road is not a public road in satisfaction
of { 502 of the Newport Zoning Regulations.  We disagree.
     Under state law, municipal zoning regulations must require development
projects to front on or have access to public roads or waters.  24 V.S.A. {
4406(2).  Accordingly, { 502 of the Newport Zoning Regulations provides as
follows:
            No land development may be permitted on lots which do
          not either have frontage on a public road or public
          waters or, with the approval of the Planning Commission,
          access to such a road or waters by a permanent easement
          or right-of-way at least twenty feet in width.
In the first litigation, the court stated in several findings that Bigelow's
Bluff Road was a public road, noting that the City had maintained it since
1949.  In its last finding, it stated,
            Bluffside Farms . . . claim[s] that a quit-claim
          [deed] by Rudolph Bigelow on July 6, 1985, conveyed the
 road to them.  However, Bigelow's Bluff Road is a public
          road.  There is no need for the court to make a deter-
          mination whether the conveyance from Rudolph Bigelow to
          the Scotts conveyed an interest in the road to the
          Scotts.
The court nevertheless rejected the Carriers' application and dismissed the
claims of the parties, concluding that the site plan failed to meet the
Newport Zoning Regulations' objectives of traffic safety and harmony with
existing uses.
     In no way can this order be construed as a determination that Bigelow's
Bluff Road is not a public road as required by { 502.  To the contrary, the
court's findings clearly state that the road is a public road for purposes
of site plan approval, and that the court did not need to adjudicate a
claimed conveyance of the road.  At best, Bluffside Farms could argue that
the court's findings regarding the status of the road were unessential to
its judgment that the Carriers' application did not satisfy other related,
but distinct, sections of the zoning regulations; in such a case, collateral
estoppel would not bar further litigation of the issue.  See Turner v.
Bragg, 117 Vt. 9, 11-12, 83 A.2d 511, 513 (1951).  In either case, however,
Bluffside Farms' contention that the first appeal resolved the issue of
whether Bigelow's Bluff Road was a public road in its favor is untenable.
Moreover, the court's denials of the Carriers' motions following the first
appeal were based on the procedural inadequacy of the motions; therefore,
the court's statements regarding the dedication and acceptance of Bigelow's
Bluff Road were dicta, and did not preclude further consideration of that
issue.
                                   III.
     Next, Bluffside Farms contends that res judicata and collateral
estoppel barred the court in the second litigation from reconsidering the
following findings and conclusions made by the court in the first liti-
gation: (1) the proposed development was not in harmony with existing
adjacent uses; (2) Bigelow's Bluff Road did not provide safe vehicular
access to the proposed development; (3) the Carriers unlawfully used tree
stumps for fill; and (4) the Carriers had failed to provide a survey of the
preexisting conditions of the land before they began development.  We do not
agree that the court could not reconsider these matters.
     Although res judicata does not apply to administrative proceedings as
an inflexible rule of law, see, e.g., Klein v. Colonial Pipeline Co., 55 Md.
App. 324, 339, 462 A.2d 546, 555 (1983), the principles of res judicata and
collateral estoppel generally apply in zoning cases as in other areas of the
law.  Kollock v. Sussex County Board of Adjustment, 526 A.2d 569, 572 (Del.
Super. Ct. 1987).  Thus, as a general rule, a zoning board or planning com-
mission "may not entertain a second application concerning the same property
after a previous application has been denied, unless a substantial change of
conditions had occurred or other considerations materially affecting the
merits" of the request have intervened between the first and second appli-
cation.  Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me.
1985).  This rule, which provides some finality to zoning determinations and
protects the integrity of the process, Driscoll v. Gheewalla, 441 A.2d 1023,
1027 (Me. 1982), has been applied consistently to zoning variances and
special exceptions, and we believe it is equally applicable to planning
commission proceedings.  See Dellinger v. Hagest, 157 Ind. App. 158, 165,
299 N.E.2d 222, 226 (1973); Silsby, 501 A.2d  at 1295.
     Accordingly, a planning commission (or a court acting as a planning
commission) may grant a second application for site plan approval when the
application has been substantially changed so as to respond to objections
raised in the original application or when the applicant is willing to
comply with conditions the commission or court is empowered to impose.  Cf.
In re Crescent Beach Ass'n, 126 Vt. 140, 141, 224 A.2d 915, 916 (1966)
(successive applications to operate private beach must be different in
content and show changed circumstances); Rocchi v. Town of Glastonbury
Zoning Board of Appeal, 157 Conn. 106, 111, 248 A.2d 922, 925 (1968)
(relocation of access road to city landfill and addition of buffer zone
created substantial changes in second application for special exception);
Driscoll, 441 A.2d  at 1028 (modified proposal for zoning variance filed less
than one month after first application contained significant changes in
setbacks and building dimensions, and therefore was not barred by ordinance
requiring six-month delay between successive applications).
     The burden of proof of changed circumstances rests with the applicant.
Boutwell v. Town of Fair Haven, 148 Vt. 8, 11, 527 A.2d 225, 226 (1987);
Kollock, 526 A.2d  at 572.  Although we prefer that the court specifically
find changed circumstances before considering a second application, we will
not require such an explicit finding if the court's findings implicitly
indicate that the modified proposal is sufficiently changed to satisfy
concerns that prevented approval of the prior application, and the findings
are supported by credible evidence.  See Crescent Beach, 126 Vt. at 141, 224 A.2d  at 916; Driscoll, 441 A.2d  at 1028.  But cf. Kollack, 526 A.2d  at 574
(zoning board should not have made a decision on the merits until it had
determined that change in applicant's proposal was substantial enough to
remove bar of res judicata).
     In the instant case, the court denied the first application for site
plan approval because the proposal was not harmonious with existing adjacent
uses and the road did not provide safe access to the development.  Bluffside
Farms notes that the second application, like the first, was for a nine-lot
residential subdivision, and claims that the applications are virtually the
same.  The Carriers, however, point out that the applications differ sub-
stantially in that (1) the interior road network was redesigned; (2) the
lots were reconfigured; (3) extensive landscaping, screening, and plantings
were proposed; (4) accesses to Bigelow's Bluff Road were reduced in number
and were realigned to improve traffic safety and circulation; and (5) the
internal-road-system turnaround was redesigned to make it safer for school
buses and service vehicles.
     The court eventually approved the second site-plan application based on
the new landscaping proposals and road-improvement plan.  The court was sa-
tisfied that the new proposals met the site-plan review objectives requiring
that the proposed development be in harmony with existing adjacent uses and
offer safe vehicular access to, and circulation throughout, the development.
Upon review of the record, we conclude that the court's ruling was not
erroneous.  See In re McDonald's Corp., 151 Vt. 346, 349, 560 A.2d 362, 364
(1989) (Supreme Court will uphold superior court's ruling in zoning case
absent clear error).
     Regarding the burying of tree stumps and the lack of a survey of
preexisting conditions, the court in the first litigation found that in
June, July and August of 1985 the Carriers divided their parcel into nine
lots, engaged in excavation and landfilling on all of the lots, and buried
stumps for landfill on lots 4, 5 and 7 without filing for a landfill permit.
The court also found that the Carriers were given permission to grade lots
1-6 and remove cottages therefrom, but lots 7-9 were excluded from the
approval.  According to the court's findings, permission for a landfill was
given on August 8, 1985.  In addition, the court found that the survey the
Carriers had submitted did not show features existing prior to any develop-
ment.  The court, however, did not deny site plan approval based on the
absence of such a survey or the burial of tree stumps; rather, it refused to
approve the site plan because of traffic circulation and safety problems and
the fact that the proposed project was not harmonious with existing adjacent
uses.
     In the second litigation, the planning commission did not object to the
survey provided by the Carriers, but it conditioned approval, among other
things, on the removal of tree stumps from the vicinity of lot 7.  On
appeal, the court found that the Carriers had submitted a survey of the
property showing features existing as of May 20, 1986 ÄÄ the date of the
second application.  Despite Bluffside Farms' protests to the contrary, the
court also found that stumps buried on lots 4, 5 and 7 were not under
proposed interior roads or residences.
     The essence of Bluffside Farms' complaint regarding the stumps and the
survey is that the Carriers engaged in land development prior to obtaining
the proper permits and, therefore, site plan approval must be denied.
Although we agree the findings indicate that the Carriers developed at least
some portions of their property in violation of the Newport Zoning Regu-
lations, we do not agree that site plan approval must be denied as a result
of these violations.
     No land development ÄÄ including division of parcels, excavation,
landfill, or change in the use of land ÄÄ may take place within a zoned
area without a proper zoning permit.  See 24 V.S.A. {{ 4303(3), 4441, and
4443(a)(1); Newport Zoning Regulations { 320.  Further, no zoning permit
shall be issued, except for one- or two-family dwellings, until the planning
commission grants site plan approval.  Newport Zoning Regulations { 350.  In
addition, the applicant must submit site plan maps that include a "[s]urvey
of the property showing existing features."  Id. { 351(2).  Thus, pursuant
to the Newport Zoning Regulations, the survey should show features existing
before new development began, since land development on a subdivision may
not commence until site plan approval has been given.  Although the findings
of the courts in the two Carrier applications are somewhat ambiguous as to
when development took place and what permits were given at what time, it is
clear that some unlawful development took place, at least on lots 7-9,
before the site plan was approved.
     Violations of the Newport Zoning Regulations "shall be regulated as
prescribed in Sections 4444 and 4445 of the [Vermont Planning and Develop-
ment] Act."  Newport Zoning Regulations { 330.  Under the enabling act, 24
V.S.A. { 4444 prescribes penalties for violations of a zoning regulation,
and { 4445 authorizes the administrative officer to institute an appropriate
action to abate an unlawful use.
     Although we deplore the precipitate, unlawful development of land, and
note the duty of the administrative officer and planning commission to pre-
vent such development, see Wright v. Preseault, 131 Vt. 403, 410, 306 A.2d 673, 678 (1973), the failure of the Carriers to obtain the proper permits in
a timely manner is not before us here.  Cf. In re Poole, 136 Vt. 242, 247,
388 A.2d 422, 425 (1978) (in reviewing zoning board's grant of zoning
permit, trial court's deferral to planning commission to enforce ordinance
and to condition or waive zoning regulations was improper).  Unlike Poole,
we are not reviewing the issuance of a zoning permit; rather, we are review-
ing the superior court's decision to grant site plan approval.  Bluffside
Farms' arguments regarding the burial of stumps and the lack of a proper
survey address the issue of prior, unpermitted development; neither the
planning commission nor the court was obligated to reject the site plan on
those bases.  Cf. Klein v. Colonial Pipeline Co., 55 Md. App. at 338, 462 A.2d  at 554 (refusal to grant conditional use permit based on applicants'
violation of prior permit improperly transformed zoning application
proceedings into an enforcement process).
                                    IV.
     Next, Bluffside Farms argues that the court in the second litigation
exceeded its subject matter jurisdiction when it determined that Bigelow's
Bluff Road was a public highway dedicated and accepted by the City of
Newport.  We disagree.
     As noted, state law and the Newport Zoning Regulations prohibit land
development on lots that do not front a public road (or waters) or access
such a road by a permanent easement at least twenty feet in width.  24
V.S.A. { 4406(2); Newport Zoning Regulations { 502.  Therefore, before
deciding whether to grant site plan approval, the planning commission, and
the court on de novo review, see 24 V.S.A. { 4472(a), must determine whether
the lots of a proposed subdivision front a public road.
     This is precisely what the court did.  In the first litigation, the
court found that the City had maintained Bigelow's Bluff Road since 1949 by
grading the road, filling potholes, plowing the road in the winter, placing
a "dead end" road sign at the entry of the road, and providing fire truck
and school bus service.  In the second litigation, upon finding that for
decades the public had used the road and that the City had maintained the
road, the court concluded that
          the road is a public highway for purposes of { 502 and
          as such is a "street" within the definition of { 103.
          Consequently, lots 1, 8 and 9 of the proposed develop-
          ment have frontage on a public road and lots 1-7 have
          access by permanent right-of-way over an interior road
          which is 20' wide.  Thus, { 502 of the regulations is
          satisfied.
     The court did not order condemnation of any property; it merely
declared Bigelow's Bluff Road to be a public road "for purposes of { 502," a
threshold requirement for obtaining site plan approval.  The court's action
was perfectly proper.  See Vermont Division of State Buildings v. Town of
Castleton Board of Adjustment, 138 Vt. 250, 255-56, 415 A.2d 188, 192 (1980)
(in de novo appeal from decision by board of adjustment, court can grant
declaratory and injunctive relief; "court may grant such relief as is
otherwise within its jurisdiction and consistent with law and equity"); see
also In re Gadhue, 149 Vt. 322, 325-26, 544 A.2d 1151, 1153 (1987) (rein-
forces Castleton).  Further, for purposes of this proceeding, all parties
necessary for the court's declaration concerning the road were present.
     Affirmed.




                                 FOR THE COURT:

                                 ______________________________________
                                 Associate Justice