In re Lionni

EO.92-366; 160 Vt. 625; 648 A.2d 832        


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-366

                              APRIL TERM, 1993


 In re Louis M. Lionni             }          APPEALED FROM:
                                   }
                                   }
                                   }          Chittenden Superior Court
                                   }
                                   }
                                   }
                                   }          DOCKET NO. S2169-91CnC


              In the above entitled cause the Clerk will enter:

      The City of Burlington appeals from the superior court's order
 declaring invalid (1) the Burlington Planning Commission's bylaw authorizing
 the commission to act upon a concurrence of less than a majority of its
 members, and (2) the zoning permit granted by three members of the seven-
 member commission.  We affirm.

      One of the members of the Burlington Planning Commission applied for a
 zoning permit for a proposed renovation of his residence, which was located
 in a design control district that requires planning commission approval for
 building alterations.  Three members of the commission initially approved
 the permit, with two of the commissioners -- the applicant and his neighbor
 -- recusing themselves from consideration of the project.  After the
 superior court declared the permit invalid, the commission adopted a bylaw,
 pursuant to 24 V.S.A. { 4323(b) (planning commission, at its organization
 meeting, "shall adopt . . . rules as it deems necessary and appropriate for
 the performance of its functions"), allowing a majority of the commissioners
 "present and voting" to take any action.  Three members of the commission
 then reapproved the permit, which was challenged again.  The superior court
 ruled that { 4323(b) does not provide authority for the planning commission
 to adopt the instant bylaw.  We agree with the court's ruling.

      Section 172 of Title 1 provides that "[w]hen joint authority is given
 to three or more, the concurrence of a majority of such number shall be
 sufficient and shall be required in its exercise."  Section 172 must be
 followed unless it "is inconsistent with the manifest intent of the general
 assembly or repugnant to the context of the same statute."  1 V.S.A. { 101.
 Section 1-2 of the Burlington Code of Ordinances defines joint authority in
 a manner consistent with { 172, and {{ 101 and 172 have been incorporated
 into Section 295 of the Burlington City Charter.  The City contends that the
 specific grant of authority provided by { 4323(b) controls over the general
 rule expressed in { 172.  We disagree.  Section 4323(b) does not
 specifically authorize the adoption of rules regarding the number of
 commissioners required to take action.  Further, { 4323(b) does not convey

 

 the "manifest intent" of the Legislature to override { 172.  Nor does the
 existence of 24 V.S.A. { 4462(a), which allows only a majority of the
 members of zoning boards to take action, coupled with the absence of a
 similar statute directed specifically at planning commissions, somehow
 suggest that planning commissions need not abide by { 172.  Accordingly, the
 bylaw, as well as the permit that resulted from it, are invalid.

      The City contends that approval by a majority of the commissioners is
 preferable to the automatic approval of projects that would result in situ-
 ations where the commission failed to act within a certain period.  See 24
 V.S.A. {{ 4470(a), 4475.  According to the City, the failure of the commis-
 sion to act would result in automatic approval even when the appellant is
 challenging the project.  Assuming this to be true, the superior court's
 ruling could result in automatic approval where three of the commissioners
 voted to disapprove a project and the other four recused themselves based on
 a conflict of interest.  Thus, the recused commissioners, in effect, would
 be voting for the project.  The possibility of such a scenario does not sway
 us.  The person challenging a project may seek de novo review in the
 superior court.  24 V.S.A. {{ 4471, 4475.  This is not a situation where the
 plain meaning of the statute leads to absurd or irrational results; there-
 fore, we must enforce it according to its terms.  In re Application of 66
 No. Main St., 145 Vt. 1, 3, 481 A.2d 1053, 1055 (1984).

      Affirmed.







                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice
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