In Re Maple Tree Place

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. 90-354


In re Maple Tree Place                       Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court

                                             September Term, 1990


Stephen B. Martin, J.

Spokes, Foley & Peterson, Burlington, for appellant

Fred I. Parker, Mark L. Sperry and Alison J. Bell of Langrock Sperry
  Parker & Wool, Burlington, for appellee

Harvey D. Carter, Jr., Burlington, for Williston Citizens for Responsible
  Growth


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


     DOOLEY, J.   This interlocutory appeal involves Maple Tree Place
Associates' (MTP) pursuit of a subdivision and site plan approval.  The Town
of Williston and Williston Citizens for Responsible Growth appeal a decision
by the Chittenden Superior Court remanding the case to the Williston
Planning Commission.  We affirm.
     In 1987 MTP filed an application with the Williston Planning
Commission for conceptual subdivision approval for a 477,159-square-foot
shopping mall under the Town of Williston Subdivision and Zoning
Regulations.  Conceptual approval was granted in March 1988, and in May of
1988 MTP applied to the commission for site plan approval and preliminary
subdivision approval.  After sixteen public hearings the commission on
December 5, 1989 concluded on a five-to-four vote that MTP did not meet five
of the twelve standards for review set forth in the subdivision and site
plan regulations, and denied MTP's application.
     MTP appealed to the Chittenden Superior Court under 24 V.S.A. {{ 4471
and 4475, referencing in addition V.R.C.P. 74.  Soon thereafter, MTP moved
for remand to the Williston Planning Commission for leave to present
additional evidence, namely a plan for phasing the project.  In support of
its motion, MTP pointed to numerous references in the commission's decision
to the ill effects of the immediate, unphased development of so large a
project on the Town's plan for orderly growth; on secondary commercial
growth in the Town; on land values; and on the impression of a rural
community, historic resources, and other values.  MTP focused particularly
on paragraph 39 of the decision, which stated:
            Phasing a development is often appropriate to
         mitigate unreasonable highway congestion or unsafe
         conditions.  The Applicant has indicated it would not
         accept a condition to phase its project.  Other
         developments in the Taft Corners area have been phased
         by conditions imposed in the Town permitting process or
         by the District Environmental Commission.  Phasing would
         allow the Town to control traffic by being assured that
         increased use of the highways does not outpace the
         necessary road improvements.  Alternative traffic
         routing patterns and roadway improvements could be
         explored if initial phases of the project result in
         unacceptable impacts.

MTP argued that it was misled into not presenting a phasing plan by the
commission's conceptual review and, thus, it was not at fault for this
omission.  It denied that it had expressed to the commission that it would
not accept a phased project.
     MTP relied in its remand motion on the language of 24 V.S.A. { 4471
providing that an "appeal [from a planning commission to a superior court]
shall be taken in such manner as the supreme court may by rule provide for
appeals from state agencies governed by sections 801 through 816 of Title 3
[the Administrative Procedure Act]."  MTP contended that 3 V.S.A. { 815(b)
allowed a reviewing court to remand a matter to the originating agency for
presentation of additional evidence upon a showing of "good reasons for
failure to present it in the proceeding before the agency . . . ."  The Town
opposed the motion on grounds that { 815(b) was limited to appeals from
state agencies and that the Administrative Procedure Act did not apply to
appeals under 24 V.S.A. { 4471.
     The trial court granted the motion to remand, adopting MTP's theory.
It noted that the permit denial included other reasons besides the lack of
phasing but concluded that it was unable to determine "which concerns caused
a majority of the commission to rule against the project or whether a
majority would have voted in favor of the project if MTP had presented a
'phase in' plan."  Initially, it specified that the review would be under
the "current town plan."  It amended the order, however, to specify that
review of the phased proposal should occur under the plan in effect when
MTP originally sought approval.  The court subsequently granted the Town's
motion for interlocutory review, pursuant to V.R.A.P. 5, of the decision to
remand, and Williston Citizens for Responsible Growth (CRG), an intervenor,
joined in the appeal.
     The court certified the following controlling question of law pursuant
to the Rule:
         Whether the superior court has authority under 3 V.S.A.
         section 815 to remand an amended application for
         subdivision and site plan approval to a town planning
         commission.

The Town repeats on appeal its central argument before the superior court
-- that 3 V.S.A. { 815 does not apply to appeals brought from municipal
zoning and planning bodies under 24 V.S.A. { 4471 and the language of the
latter section does not make it applicable by reference.  It is clearly
correct on the first part of its argument.  As set out in 3 V.S.A. {
801(b)(1), "agency" is defined in the APA with only state, rather than
municipal, entities in mind:
         "[A]gency" means a state board, commission, department,
         agency, or other entity or officer of state government,
         other than the legislature, the courts, the Commander in
         Chief and the Military Department, authorized by law to
         make rules or to determine contested cases.

The APA does not apply to local boards or commissions.  See Burroughs v.
West Windsor Bd. of School Directors, 141 Vt. 234, 236, 446 A.2d 377, 379
(1982) (APA does not apply to school boards); City of Winooski v. Vincent,
137 Vt. 252, 252, 402 A.2d 1192, 1192 (1979) (city council is not a "state
board, commission, department, or officer" for purposes of { 801(b)(1) of
the APA).  The statute on which the trial court rested, 3 V.S.A. { 815, is
part of the APA.
     The trial court, however, found the statute applicable through an
alternative route, that is, by cross-reference from { 4471.  Although { 4471
provides that an appeal "shall be taken in such manner as the supreme court
may by rule provide for appeals from state agencies governed by sections 801
through 816 of Title 3," the words "in such manner" fall far short of
incorporating the sections 801 through 816 themselves into appeals from
decisions from other-than-state entities.  In any event, the statute by its
terms cross-references procedures imposed by rule of this Court.  The
applicable rule is V.R.C.P. 74, see V.R.C.P. 74(a) (applicability), and that
rule nowhere provides for a remand (FN1) or the incorporation of other APA
procedure.  The trial court should not have relied on 3 V.S.A. { 815 as the
basis for its remand.
     Although our holding on the applicability of 3 V.S.A. { 815 answers the
question certified by the trial court, the question must be treated as a
"landmark, not a boundary," and we may affirm on other grounds if fairly
raised by the order appealed from.  State v. Dreibelbis, 147 Vt. 98, 100,
511 A.2d 307, 308 (1986).  MTP urges here as an alternative that the court
had the inherent authority to remand to the commission.  We find this ground
to be persuasive and affirm on this basis.
     Although we have never faced the question directly, most courts have
found that trial courts reviewing administrative decisions have the inherent
or implied authority to remand the matter to the administrative agency in
the interests of justice.  See, e.g., City of Nome v. Catholic Bishop of N.
Alaska, 707 P.2d 870, 876 (Alaska 1985); Texter v. Department of Human
Services, 88 N.J. 376, 383, 443 A.2d 178, 181 (1982); Wilson v. Borough of
Mountainside, 42 N.J. 426, 442, 201 A.2d 540, 548 (1964) (in a zoning case,
"[p]rotection of the public interest may justify such a course in particular
situations as an appropriate exercise of judicial discretion"); cf. B.B. &
J. v. Bedell, 2 Vt. L.W. 45, 46 (Jan. 25, 1991) (remand for new trial by
this Court appropriate "to prevent a failure of justice").  The common sense
approach to remand is described by the Washington Supreme Court in State ex
rel Gunstone v. Washington State Highway Comm'n, 72 Wash. 2d 673, 674-75,
434 P.2d 734, 735 (1967):
           The provision for such a remand would seem to be
         intended as a safety valve, permitting the reviewing
         court to require a second look at situations and con-
         ditions which might not warrant a reversal, but which,
         to the court reviewing the record, would indicate to it
         that the . . . Commission may have acted on incomplete
         or inadequate information; or may have failed to give
         adequate consideration to an alternative route; or may
         have weighted its evaluation of the matter under con-
         sideration with the theory of the complete infallibility
         of its own engineers.

Although no grounds for reversal were found, the Court affirmed a remand.
     The Town argues that the power to remand, if it exists, should not
apply here because remand is conceptually inconsistent with a system of de
novo review.  For a number of reasons, we do not find this argument
persuasive in this case.
     First, we note in direct response to the Town that there is at least
one de novo appeal provision involving state agency adjudication governed by
the APA, and the remand authorization in { 815 would ostensibly apply in
that instance.  See 26 V.S.A. { 1363(c) (de novo appeal from state board of
medical practice in physician license revocation or suspension cases); see
also Board of Medical Practice v. Perry-Hooker, 139 Vt. 264, 268, 427 A.2d 1334, 1336 (1981).  Thus, the Legislature did not see the fatal
inconsistency the Town relies upon.
     Second, although we have held de novo review means that "the case is
heard as though no action whatever had been held prior thereto," In re
Poole, 136 Vt. 242, 245, 388 A.2d 422, 424 (1978), it is an overstatement to
say that planning commission action here will be irrelevant.  In In re
Duncan, ___ Vt. ___, 584 A.2d 1140 (1990), we held that the interpretation
of a zoning ordinance by municipal zoning staff and the zoning board can be
determinative in a close case as "the interpretation of [an ordinance]
. . . by the administrative body responsible for its execution."  Id. at
___, 584 A.2d  at 1144.  Further, the superior court is limited to
consideration of the matters properly warned as before the local board.  See
In re Torres, ___ Vt. ___, ___, 575 A.2d 193, 195 (1990).
     The superior court here could see that MTP's desire to pursue its
phasing theory presented the court with legal and procedural questions
about its consideration.  The court could conclude that the better course
was to allow the theory to be presented to the planning commission, with
proper notice to the many persons who had appeared at earlier hearings,
before the court faced it.
     On this point, we emphasize the cautionary language of Chioffi v.
Winooski Zoning Bd., 151 Vt. 9, 13, 556 A.2d 103, 106 (1989) that "the
court must resist the impulse to view itself as a super planning
commission."  The court, on review of a zoning board or planning commission
decision, is acting within its proper role when it decides question that
have been formulated in the local approval process and which divide the
parties.  It is beyond its role as an appellate tribunal, even under a de
novo review standard, to start addressing new issues never presented to the
planning commission and on which interested persons have not spoken in the
local process.  Use of the remand authority in such cases is consistent with
the court's role.
     Third, the issue here is really about the timing of regulatory
consideration and review and, properly perceived, not about the nature of
that review.  The court here did little more than delay its review until
there could be full consideration in the planning commission.  We have held
that administrative action is not ready for review unless it disposes "'of
all matters that should or could properly be settled'" in the administrative
proceeding.  In re Central Vermont Ry., 148 Vt. 177, 178, 530 A.2d 579, 580
(1987) (quoting In re Estate of Webster, 117 Vt. 550, 552, 96 A.2d 816, 817
(1953)).  The reviewing court necessarily has discretion in determining
whether MTP has exhausted administrative remedies and the case is ripe for
review.  See 4 K. Davis, Administrative Law Treatise { 26:15, at 478 (2d ed.
1983) ("[c]ourts that otherwise have jurisdiction always have discretionary
power to resolve close questions of exhaustion either way").  Here, the
court could conclude that the phasing question could or should have been
settled in the planning commission before the matter was ripe for its
review.
     Finally, we note that some courts have found a remand inappropriate
prior to judicial review because it denies the aggrieved party the judicial
review to which it is entitled.  See Holiday Spas v. Montgomery County Human
Relations Comm'n, 315 Md. 390, 400, 554 A.2d 1197, 1202 (1989).  MTP
requested the remand here, and has not been denied judicial review.  If it
turns out to be a fruitless act, MTP's request will have been the cause of
the delay.
     In stating the grounds for remand, we have necessarily touched on the
appropriateness of the remand order in this case.  This necessarily must be
an area of trial court discretion, and we review under the familiar standard
that abuse of discretion must be found for the appellant to prevail.  See
Vermont Nat'l Bank v. Clark, 2 Vt. L.W. 72, 72 (Feb. 22, 1991)
(discretionary ruling will be reversed only if "trial court has withheld its
discretion entirely or . . . it was exercised for clearly untenable reasons
or to a clearly untenable extent").  There is no abuse here.  The planning
commission vote was close, and it is entirely possible that commission will
reopen the proceeding and grant approval to a plan that would be constructed
in phases.
     Although neither the Town nor CRG directly attacked the specific
provisions of the court's remand order, a part of their argument involves
what they perceive as inappropriate consequences from the order.  The first
order of the court granted approval for MTP to request the commission to
review its phasing proposal, with the commission retaining the right to
approve, disapprove or modify the proposal.  The second order was similar.
Apparently, the Town plan has been modified since MTP first applied for a
permit.
     We have held that municipal zoning boards have the authority to "reopen
proceedings and reconsider a decision where new evidence is submitted."
Nash v. Warren Zoning Bd. of Adjustment, 153 Vt. 108, 114, 569 A.2d 447, 451
(1989).  We do not have any difficulty applying this holding to a planning
commission.  However, we believe that the power to reopen is akin to the
power of a court to grant a new trial or relief from judgment and must be
supported by good cause.  See V.R.C.P. 59, 60; 7 P. Rohan, Zoning and Land
Use Controls { 51.07[1], at 51-89 (1991) (summarizing from the cases that
the standard is "substantial change of conditions or circumstances" or a
showing that the decision was induced by "fraud, surprise, mistake or
inadvertence").
     Although a remand here implements the common sense approach described
by the Washington Supreme Court in Gunstone, we do not believe that the
interests of justice allow the Court to ignore whether grounds to reopen
exist in this case.  The record was inadequate for the court to determine
whether grounds for reopening existed.  In any event, the better procedure
is for the commission to determine that question.  Thus, the remand in this
case must be for the commission to determine whether grounds to reopen
exist, and if grounds are found, to consider the phasing proposal. (FN2) If
grounds to reopen are found, there is no question that the earlier Town plan
applies.  Although the court's remand order is not directly inconsistent
with our conclusion, this clarification will prevent inappropriate use of
the remand.
     The ruling of the trial court is affirmed.

                                        FOR THE COURT:




                                        Associate Justice



FN1.     The Reporter's Notes to V.R.C.P. 74(e), now 74(f), describes that
subdivision as adopting a procedure "for remand."  The subdivision actually
provides for certifying the decision of the superior court to the agency if
no appeal is taken to this Court.  That certification is not a remand in the
sense that the term is being used in this case.

FN2.     We interpret the court's remand as not allowing for the pre-
sentation of a new proposal, as if there had not been prior proceedings.
Accordingly, we do not reach whether MTP could present its phasing proposal
in that manner or the proper procedure for such a presentation.  Such a
situation would necessarily affect which version of the Town plan was
applicable.