Chioffi v. City of Winooski

Chioffi v. City of Winooski  (95-169); 165 Vt 37; 676 A.2d 786 

[Opinion Filed 15-Mar-1996]

  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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-169


Gregory T. Chioffi                                Supreme Court

                                                  On Appeal from
     v.                                            Chittenden Superior Court

City of Winooski et al.                           November Term, 1995



Matthew I. Katz, J.

       Paul D. Jarvis of Jarvis and Kaplan, Burlington, for
  plaintiff-appellant

       William M. O'Brien and Kristin C. Wright of O'Brien Law Offices,
  Winooski, for defendants-appellees


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


       DOOLEY, J.   Plaintiff Gregory T. Chioffi owns land and a burnt-out
  building in the City of Winooski, and was denied a zoning permit to
  reconstruct the building.  Eventually, after an appeal to this Court, the
  superior court reversed the city zoning board and granted plaintiff a
  variance to build a duplex.  In a separate action, plaintiff claims a
  taking occurred during the time the permit was denied, because he was
  deprived of the use of his property, and seeks compensation for the lost
  use during the regulatory delay.  The superior court held that no taking
  occurred, and granted the city's request for summary judgment.  We affirm.

       The property comprises less than one-twentieth of an acre in a
  residential neighborhood and contains three residential units in one
  building.  When the city's new zoning ordinance went into effect in
  December 1981, the building became a nonconforming use.  It lay in an R-2
  district that allows only a two-unit residential development as a
  conditional use.  The lot is undersized, and the building did not meet
  setback requirements.  The building was destroyed in October 1983, when the
  previous owner intentionally set fire to it, an act for which he was

 

  convicted of arson.  Pursuant to the city's zoning ordinance, the owner had
  one year to reconstruct the destroyed building before he lost
  preexisting-use status and had to comply fully with the new ordinance
  provisions.  The building was not rebuilt within the specified time.

       Plaintiff acquired the property by foreclosure sale in May 1985.  He
  applied for a zoning permit to remove the third floor of the building and
  remodel the remaining two units.  The Winooski Zoning Board denied
  plaintiff's request, concluding he no longer had a right to
  nonconforming-use status and that the proposal failed to comply with
  current zoning requirements. The Board also denied a dimensional variance. 
  The Chittenden Superior Court refused to review the Board's decision,(FN1)
  but we held that that trial de novo was required. Chioffi v. Winooski
  Zoning Board, 151 Vt. 9, 14, 556 A.2d 103, 106 (1989).  The superior court
  then granted plaintiff a variance under 24 V.S.A. § 4468(b) to reconstruct
  the building as a duplex.

       In December 1991, plaintiff brought this action claiming he was
  deprived of the use of his property during the time between the denial of
  the zoning permit by the city zoning board and the issuance of the permit
  pursuant to the 1990 court decision granting the variance.  He requested
  $200,000 for estimated lost rent, increased cost of construction, other
  miscellaneous costs resulting from the regulatory delay in construction,
  and attorney's fees.  The parties stipulated to the relevant facts (FN2) and
  filed cross-motions for summary judgment on liability.  The court granted
  summary judgment in defendant's favor.

       The Fifth Amendment to the United States Constitution guarantees that
  "private property [shall not] be taken for public use, without just
  compensation."  Plaintiff claims that a regulatory

 

  taking for public use occurred during the permit process and he is entitled
  to "just compensation" for the temporary taking.  For two reasons, we
  reject this claim.

       First, no damages are available for the regulatory delay that occurred
  in this case. Plaintiff's theory is based on First English Evangelical
  Lutheran Church v. Los Angeles Cty., 482 U.S. 304 (1987), in which the
  Supreme Court held that "temporary" takings are not different in kind from
  permanent takings and require compensation for the period of the taking.
  Id. at 318.  That case, and its holding, are, however, clearly
  distinguishable from the situation before us.  In First English, the
  plaintiff's buildings were destroyed in a flood from the neighboring creek,
  and the plaintiff was prevented from rebuilding them because of an
  ordinance of the defendant county that imposed a moratorium on construction
  or reconstruction in the flood-protection area surrounding the creek.  The
  California courts limited the plaintiff's remedy to a declaration that the
  ordinance was invalid, without payment of compensation, and specifically
  rejected damages as a remedy for any temporary taking.  In rejecting the
  limits imposed by the California courts, the Supreme Court was careful to
  distinguish from the situation presented here:  "We limit our holding to
  the facts presented, and of course do not deal with the quite different
  question that would arise in the case of normal delays in obtaining
  building permits, changes in zoning ordinances, variances, and the like
  which are not before us." Id. at 321.

       Other courts have viewed the above-quoted language in First English as
  holding that regulatory delay cannot normally give rise to a temporary
  takings claim.  See, e.g., Smith v. Town of Wolfeboro, 615 A.2d 1252, 1258
  (N.H. 1992) ("delay inherent in the statutory process of obtaining
  subdivision approval, including appeals to the superior court and to this
  court, is one of the incidents of ownership" and cannot give rise to
  takings claim); Stoner v. Township of Lower Merion, 587 A.2d 879, 886 (Pa.
  Commw. Ct. 1991) (compensation for temporary taking available only for "a
  taking effected by legislation or an adopted rule of continuing effect" and
  not for "withholding of approval under an ordinance which. . . clearly
  allows the reasonable

 

  use of land").  This analysis is consistent with the holdings of this Court
  and the United States Supreme Court on the timing of regulatory takings
  claims.  In Killington, Ltd. v. State, 6 Vt. L. W. 299 (Oct. 13, 1995), we
  held that a regulatory taking claim was not ripe because the plaintiff had
  failed to obtain a final decision on the application of the governmental
  regulation to its land.  Id. at 301.  We relied particularly on Williamson
  Cty. Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), where
  the United States Supreme Court held that the landowner must obtain a
  ruling on a variance request before a takings claim would be considered
  ripe.  Id. at 190-91.

       The rationale behind the ripeness rulings is that before the landowner
  has exhausted the regulatory process, it will be impossible to determine
  whether the landowner will be unable to derive economic benefit from the
  land.  See id. at 191.  Thus, the decisions "reflect an insistence on
  knowing the nature and extent of permitted development before adjudicating
  the constitutionality of the regulations that purport to limit it." 
  MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 351 (1986). 
  Insistence on ripeness as defined in Williamson makes sense only if the
  regulatory process itself does not give rise to the takings claim.  Put
  another way, there can be no taking until the nature and extent of the
  restriction on land are finally determined.

       Although plaintiff does not address directly this ground for denying
  relief, he does argue that the temporary taking was so severe that his
  development proposal became "economically unfeasible."  There is no factual
  record to support this claim.  None of the stipulated facts addresses the
  economic viability of plaintiff's development proposal. On the other hand,
  there is no suggestion that there was something extraordinary about the
  regulatory review in this case. Thus, if there is a temporary taking in
  these circumstances, there must also be a temporary taking, and resulting
  damages, in every case where a municipality denies a variance, and the
  denial is reversed on appeal.  This would be an unwarranted expansion of
  the takings doctrine.

       Second, we agree with the trial court that even if plaintiff could
  obtain compensation for

 

  the time period in which his proposal was in the regulatory process, there
  is no regulatory taking in this case.  "The application of a general zoning
  law to particular property effects a taking if the ordinance does not
  substantially advance legitimate state interests or denies an owner
  economically viable use of his land."  Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (citations omitted).

       Plaintiff's attack is on the provision of the zoning ordinance that
  prohibits restoration of a nonconforming use after it has been abandoned
  for a year.  We have already held that such a provision advances a
  legitimate state interest and is otherwise constitutional:

               Plaintiff's main attack is on defendant's preexisting,
     non-conforming use provisions that prevent the restoration of a
     nonconforming use if it has been discontinued for a period of six
     months or more.  As we held in [State v.] Sanguinetti, [141 Vt.
     349, 351, 449 A.2d 922, 924 (1982)], reasonable zoning
     regulations that prevent the "undue perpetuation" of preexisting,
     nonconforming uses are constitutionally valid.  See 24 V.S.A. §
     4408(b).  Nonconforming uses are inconsistent with the purpose of
     zoning and are tolerated only because they are antecedent to the
     applicable zoning provisions.  A goal of zoning must be to phase
     out such uses. . . .  There can be no question that the public
     interest is strong and supports the regulation. . . . In the words of
     the recent United States Supreme Court decisions on regulatory
     takings, the regulation "substantially advances legitimate state
     interests."  . . . Agins v. City of Tiburon, 447 U.S. 255, 260
     (1980).

  Hinsdale v. Village of Essex Jct., 153 Vt. 618, 626-27, 572 A.2d 925, 930
  (1990).  Provisions on the abandonment of nonconforming use are common in
  zoning statutes and ordinances and are upheld as a valid exercise of police
  power.  See Hartley v. City of Colorado Springs, 764 P.2d 1216, 1224 (Colo.
  1988) (ordinance that prohibits resumption of nonconforming use that has
  been discontinued is constitutionally reasonable as long as it specifies
  reasonable time period for terminating nonconforming use); Koeber v.
  Bedell, 21 N.E.2d 200, 200 (N.Y. 1939) (upholding prohibition of
  reconstruction of nonconforming building after fire damaged it by more than
  seventy-five percent of its value); City of Kettering v. Lamar Outdoor
  Advertising, 525 N.E.2d 836, 841 (Ohio Ct. App. 1987) (local provision
  precluding reconstruction of

 

  nonconforming sign was constitutional).

       We also agree with the trial court that the substantive zoning
  requirements in issue advance legitimate state interests.  In losing
  preexisting, nonconforming-use status, plaintiff primarily lost the ability
  to build a high-density development on an extremely small lot.  As the
  trial court concluded:

      Permitting multiple unit residences on extremely small lots will
      inevitably lead to crowded conditions.  Light and ventilation within
      these apartments will be compromised.  The risk of fire spreading
      from building to building is increased by undue proximity.  Small
      children have no place to play except sidewalks or streets.
     Tenants' automobiles cannot be accommodated on site.


  Again, the public interest supports the applicable zoning regulations.

       This leaves only plaintiff's claim that the zoning ordinance
  provisions have denied him all economically beneficial use of his lot and
  thus worked a taking.  See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992).  The record in support of this claim is exceedingly
  sparse, consisting of only the stipulated fact that plaintiff could not
  restore the preexisting use and the findings of the superior court in
  support of the variance that a hardship was created.  On this sparse
  record, plaintiff cannot make out his claim.

       We start with the observation that plaintiff must show a denial of all
  economically beneficial use to prevail.  When plaintiff purchased the land
  through the mortgage foreclosure, the one-year period in which to restore
  the preexisting use had already expired.  Thus, plaintiff had no "distinct
  investment-backed expectations" in restoring the preexisting, nonconforming
  use.  See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124
  (1978).  Any expectation of a three-unit residential development was no
  longer "reasonable."  See Lucas, 505 U.S.  at 1017 n.7.  We conclude,
  therefore, that only total denial of economically beneficial use would,
  under these circumstances, create a taking.

       There is, however, no showing of denial of all economically beneficial
  use.  At best, plaintiff has shown inability to develop his property for
  its most profitable beneficial use, which

 

  is not a taking.  See Penn Central, 438 U.S.  at 130.  Although plaintiff
  was unable to reconstruct the preexisting building, he retained "the
  fundamental interests of ownership, including the right to possess
  property, exclude others from it, alienate the property and continue to use
  it for residential and recreational purposes; and [he was] significantly
  diminished only in [his] discretion to rebuild a structure . . . ." 
  Esposito v. South Carolina Coastal Council, 939 F.2d 165, 170 (4th Cir.
  1991).  This record does not support a conclusion that plaintiff's land was
  rendered "valueless" by the zoning ordinance provision.  See Lucas, 505 U.S.  at 1020.

       Although plaintiff relies on the zoning variance decision, he
  overlooks its major significance.  The availability of a variance is an
  essential part of the regulatory scheme to determine to what extent a
  landowner will be able to use the land.  The availability of a variance is
  determined de novo by the superior court.  See 24 V.S.A. §§ 4468(a), 4471,
  4472(a).  A variance is available for the circumstances present here, where
  the "physical conditions peculiar to the particular property" prevent its
  development consistent with the zoning ordinance.  See 24 V.S.A. §
  4468(a)(1), (2).

       We do not have to speculate whether the variance criteria are adequate
  to address plaintiff's constitutional challenge because plaintiff received
  a variance under the criteria.  Not only was plaintiff allowed some
  economically beneficial use of the property, he was allowed the specific
  use he requested.  There was no taking.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes


FN1.  As our decision reflects, the trial court actually ruled that
  trial de novo, as provided by V.S.A. § 4472(a), was unconstitutional
  because it required the court to exercise administrative power.  Chioffi v.
  Winooski Zoning Bd., 151 Vt. 9, 10, 556 A.2d 103, 104 (1989).  This had the
  effect of affirming the zoning board decision.

FN2.  The parties actually used the stipulation of facts presented to
  the superior court for the variance decision.