Town of Randolph v. Estate of White

Town of Randolph v. Estate of White  (95-581); 166 Vt. 280; 693 A.2d 694

[Filed 28-Feb-1997]



       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. 95-581


Town of Randolph                            Supreme Court

                                            On Appeal from
     v.                                     Orange Superior Court

Estate of Mildred White,                    September Term, 1996
Anthony White, Administrator
and Donal R. White


Marilyn R. Skoglund, J.

Peter M. Nowlan of Nowlan & Meyer, Randolph, for plaintiff-appellee

Steven H. Atherton of Atherton & Willner, Northfield Falls, for
  defendant-appellant Donal R. White


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


       GIBSON, J.  Defendant Donal White appeals from a superior court
  decision for the Town of Randolph in this action to enforce a zoning
  ordinance.  The court held that defendant cannot contest the zoning
  administrator's finding that defendant was in violation of the zoning
  ordinance because the finding became final when defendant failed to appeal
  it to the zoning board of adjustment.  Defendant maintains that the notice
  of violation was inadequate because it failed to inform him of his right to
  contest the finding before the board, and therefore, the notice violated
  the Due Process Clause of the Fourteenth Amendment.(FN1) We agree and reverse.

  

       Defendant is the owner of fifty-six acres of land in the Town of
  Randolph.(FN2)  On May 17, 1993, the Town zoning administrator notified
  defendant, in a three-page letter entitled  "Notice of Violation," that the
  accumulation of junk motor vehicles and other debris on his land violated
  Town zoning regulations.  Defendant was advised to stop accumulating junk
  and to remove the junk already accumulated on the property by June 1, 1993. 
  The letter stated that the penalty provisions of 24 V.S.A. §§ 4444 & 4445
  provide for fines up to $50.00 per day for each day the violation
  continues.  Defendant was directed to remove the junk by June 15, 1993, to
  avoid penalties.  The letter also told defendant to contact the zoning
  administrator or the Town attorney if defendant had any questions about the
  notice and to contact the zoning administrator when the violation had been
  corrected so that he could inspect the site.  

       In August 1993, the Town filed a complaint against defendant in
  superior court seeking an order requiring removal of the junk and assessing
  fines.  The Town then moved for summary judgment on the determination of
  the violation and issuance of an injunction, claiming that the only issue
  that needed to be resolved at trial was the amount of the fine to be
  imposed.  In response, defendant moved to dismiss the action and argued,
  among other grounds, that the notice of violation had failed to advise him
  that he had a right to a hearing to contest the administrator's
  determination that he was in violation of the zoning ordinance.  Defendant
  also filed a cross-motion for summary judgment.

       The superior court denied defendant's motion to dismiss and
  cross-motion for summary judgment.  It granted the Town's motion for
  summary judgment, ruling that the notice of violation complied with the
  notice requirements of 24 V.S.A. § 4444(a), and that defendant was bound by
  the administrator's decision because he had not contested the decision
  before the zoning board of adjustment.  Although framing the due process
  issue, the court did not explicitly address it.  In a subsequent hearing,
  the court ordered defendant to remove all junk vehicles 

  

  within forty-five days and assessed a fine of $8.00 per day for each day
  defendant was in violation up to the date of the hearing, and $5.00 per day
  for each day thereafter.  Defendant appeals. 

       As a preliminary matter, we reject the Town's contention that we lack
  jurisdiction to hear this appeal because defendant failed to file a notice
  of appeal within thirty days of the March 23, 1995 decision, in which the
  court granted the Town's motion for summary judgment.  For an order to be
  final and appealable, it must end litigation on the merits or conclusively
  determine the rights of the parties, leaving nothing further for the court
  to do but execute the judgment.  In re Burlington Bagel Bakery, Inc., 150
  Vt. 20, 21, 549 A.2d 1044, 1045 (1988).  This test was not met here; in its
  March 23 order the court left for later resolution the issue of what remedy
  was appropriate.

       The primary issue defendant raises on appeal is his claim that the
  Town's notice of  violation did not satisfy due process requirements
  because it failed to inform him that he could contest the administrator's
  decision by filing a notice with the secretary of the board of adjustment
  within fifteen days.  See 24 V.S.A. § 4464(a).  Similarly, he argues that
  the notice failed to advise him that the proceeding before the board is the
  exclusive remedy for challenging decisions of the zoning administrator, see
  id. § 4472(a), and that the finding of violation would be final in fifteen
  days unless he filed a request for a hearing before the board.

       "An elementary and fundamental requirement of due process in any
  proceeding which is to be accorded finality is notice reasonably
  calculated, under all the circumstances, to apprise interested parties of
  the pendency of the action and afford them an opportunity to present their
  objections."  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
  314 (1950).  The right to be heard is worth little unless one is informed
  that the matter is pending and can choose "whether to appear or default,
  acquiesce or contest."  Id.   The Town argues that the notice gave
  defendant sufficient information to obtain a hearing to protect his
  property interest but that he failed to take advantage of the opportunity. 
  We disagree.

       The United States Supreme Court addressed this issue in Memphis Light,
  Gas & Water 

  

  Div. v. Craft, 436 U.S. 1, 13 (1978), where the notice warned a utility
  customer that payment was overdue and that service would be discontinued if
  payment was not made by a certain date -- in other words, pay or face
  termination.  "No mention was made of a procedure for the disposition of a
  disputed claim."  Id.  The Court held that the notice was not "`reasonably
  calculated'" to inform the customer of the opportunity to present
  objections to the utility bills, and, accordingly, that the notice did not
  comport with due process requirements.  Id. at 14 (quoting Mullane, 339
  U.S. at 314).

       To determine what process was due in Memphis Light, the Court
  considered the three factors set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976): (1) the private interest affected by the official
  action, (2) the risk of an erroneous deprivation of the interest under the
  procedures used, and (3) the governmental interests involved, including
  fiscal and administrative burdens.  The Court concluded that discontinuance
  of water or heating may threaten health and safety, the risk of erroneous
  deprivation was not insubstantial, and that utilities had a business
  interest in minimizing billing errors.  Memphis Light, 436 U.S.  at 18.  In
  addition, the Court concluded that providing "some kind of hearing" should
  not prove burdensome.  Id.  On balance, the Court ruled that "failure to
  provide notice reasonably calculated to apprise respondents of the
  availability of an administrative procedure to consider their complaint of
  erroneous billing . . . deprived respondents of an interest in property
  without due process of law.  Id. at 22.

       Prior to Memphis Light, this Court applied Mullane in Aiken v. Malloy,
  132 Vt. 200, 315 A.2d 488 (1974), and reached the same conclusion.  In
  Aiken, taxpayers challenged the suspension of their driving licenses for
  failure to pay a poll tax on the ground that they never had an opportunity
  to contest the tax assessment prior to the suspensions.  To meet due
  process requirements, the Court held that, to use the license suspension
  penalty, the initial notice to taxpayers "must include more than the amount
  of the tax due and the mode of payment."  Id. at 210, 315 A.2d  at 494.  The
  notice must also state that taxpayers have a right to file a protest with
  the town clerk by a certain deadline if they believe they have been
  improperly assessed, 

  

  and must inform them that their licenses may be suspended if they fail to
  pay.  Id.  Thus, we have held that three requirements must be met for the
  contents of a notice to satisfy due process: the notice must inform the
  parties of (1) the factual basis for the deprivation, (2) the action to be
  taken against them, and (3) the procedures available to challenge the
  action.  See also Packard v. Gordon, 148 Vt. 579, 585-86, 537 A.2d 140, 144
  (1987) (failure to inform plaintiff of right to hearing to contest
  dismissal from Vermont Police Academy violated plaintiff's due process
  rights).

       The notice in this case is strikingly similar to the
  pay-or-face-termination notice provided in Memphis Light.  Here, the notice
  of violation told defendant to remove the junk or face fines.  The notice
  did not inform defendant of the procedure provided by 24 V.S.A. § 4464(a)
  to contest the administrator's finding that defendant was in violation of
  the zoning ordinance.  Following Memphis Light, we must conclude that the
  notice was not reasonably calculated to inform defendant that he could
  contest the determination that he was in violation of the zoning
  regulations and that he had only fifteen days to take action.

       Applying the Mathews factors in this case, we first note that due
  process concerns arise whenever the state deprives an individual of an
  interest in the use of real or personal property.  Traverso v. People ex
  rel. Dep't of Transp., 864 P.2d 488, 492 (Cal. 1993).  Defendant has a
  protectable property interest in the junk cars.  See Propert v. District of
  Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991); Price v. City of Junction,
  711 F.2d 582, 589 (5th Cir. 1983).  In addition to possible deprivation of
  his property, defendant is subject to substantial fines for failure to
  comply with the notice.  Accordingly, § 4464(a) provides a procedure for
  review of the administrator's decision.  The burden of informing a party of
  this procedure in the notice of the violation is minuscule and will
  minimize erroneous deprivations of property rights.  Under the Mathews
  framework, we conclude that the notice of a zoning violation must contain
  the information required in both Memphis Light and Aiken; the notice must
  state the facts that support the finding of a violation, the action the
  state intends to take, and information on how to challenge the notice.

  

       We reject the contention that statutory notice of the right to a
  hearing is adequate. The mere availability of the procedure provided by 24
  V.S.A. § 4464(a), without any attempt to inform defendant of that
  procedure, is insufficient to satisfy due process.  See Wilson v. Health &
  Hosp. Corp., 620 F.2d 1201, 1215 (7th Cir. 1980) (due process requires
  personal notice of right to hearing prior to government depriving
  individual of property interest, notwithstanding "notice" provided by
  ordinance itself); Ortiz v. Regan, 749 F. Supp. 1254, 1263 (S.D.N.Y. 1990)
  (notice must provide what action has to be taken to challenge erroneous
  information that was basis for termination of advance retirement payments);
  Miller v. Warren County, 285 N.W.2d 190, 194 (Iowa 1979) (although
  plaintiff could have learned of rights by consulting code, notice did not
  alert him to do so; therefore, notice was insufficient).

       "[I]t is unrealistic to require each individual to be conversant with
  procedural provisions," and thus the notice of the opportunity for a
  hearing provided by the statute is not reasonably calculated to inform
  parties of their right to a hearing.  Wilson, 620 F.2d  at 1215; see also
  Miller, 285 N.W.2d  at 194 (notice to laypersons should not require
  independent research to learn of rights).  As the Memphis Light Court
  acknowledged, notice provided to people of various levels of education,
  experience and resources should clearly inform the party of the
  availability of an opportunity to be heard.  436 U.S.  at 14 n.15.

       We acknowledge that the notice of violation here stated that defendant
  could consult with the zoning administrator or the Town attorney if
  defendant had "any questions about this notice, the violation, or the
  corrective action required,"  but conclude that this statement is
  inadequate to meet due process requirements.  A similar statement was found
  insufficient by the Court of Appeals for the Seventh Circuit in Wilson,
  where a property owner challenged the notices he had received informing him
  that his property was in violation of health regulations.  He maintained
  that the failure to inform him of his right to a hearing to contest the
  inspection results violated his due process rights.  The notice stated: "If
  there are any questions relative to the contents of this notice, call the
  Division of Public Health."  620 F.2d  at 1206.  Nonetheless, the court
  found this statement insufficient to satisfy due process.  We agree with
  the Wilson court.

  

       Indeed, the only case we have found, where such notice -- if you have
  questions, call -- was held sufficient, reviewed a notice to collect fines
  for outstanding parking tickets, an interest that is insignificant in
  comparison to the interest here.  See Horn v. City of Chicago, 860 F.2d 700, 701 (7th Cir. 1988).  Moreover, the notice in Horn at least indicated
  in large print that the parties had fifteen days in which to respond, and
  that after that time the city might seek a default judgment.  We have found
  no case in which a court has upheld a notice of a significant property
  deprivation that does not inform the parties how they may challenge the
  grounds for such deprivation.   

       Courts in other jurisdictions have required the contents of a notice
  to conform to Memphis Light prior to state action affecting any interest in
  property that is more than de minimis.  See, e.g., Aacen v. San Juan County
  Sheriff's Dep't, 944 F.2d 691, 698 (10th Cir. 1991) (notice to judgment
  debtor following seizure of her truck violated due process because it
  failed to inform her that hearing for asserting exemptions was available);
  Jordan v. Director, Office of Workers' Compensation Programs, 892 F.2d 482,
  488 (6th Cir. 1989) (notice of denial of black lung benefits to survivor of
  miner satisfied due process because it provided reasons for denial of claim
  "and available procedures for protesting the denial"); Anderson v. White,
  888 F.2d 985, 992 (3rd Cir. 1989) (notice that tax refund could be
  intercepted to apply to child support obligation satisfied due process
  where it informed fathers that their refunds could be intercepted and "gave
  them timely advice that administrative review was available and how to go
  about getting it"); Wilson, 620 F.2d  at 1215 (notice informing property
  owner of violations of health regulations -- requiring remedial action
  under threat of condemnation -- was inadequate under Due Process Clause
  because it failed to inform of right to hearing to contest inspection
  results); Miller, 285 N.W.2d  at 194 (where notice to landowner of proposed
  road closing failed to advise that claims for damages must be filed on or
  before hearing date, board did not have jurisdiction on issue of damages,
  and failure to file timely appeal of board's decision did not foreclose
  claim).

       We therefore conclude that the rule announced in Memphis Light
  regarding the contents 

  

  of a due process notice is applicable in this case as well.  To meet due
  process requirements, the notice of a zoning violation must inform the
  defendant how to contest the decision.  The notice in this case failed to
  do so, and therefore, violated the Due Process Clause.  Accordingly, we
  reverse the summary judgment entered in favor of the Town.  This does not
  end the matter however.  Defendant states without support that all actions
  taken after the inadequate notice are void.  Because the remedy for the due
  process violation was not properly briefed, we do not reach this issue.

       Denial of defendant's motion to dismiss is affirmed.  Denial of
  defendant's cross-motion for summary judgment is affirmed.  Summary
  judgment for the Town is reversed and the cause is remanded for further
  action consistent with this opinion. 


                              FOR THE COURT:




                              ________________________________
                              Associate Justice  



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                                  Footnotes



FN1.  Defendant also claims that the notice failed to comply with the
  requirements set forth in 24 V.S.A. § 4444 because it did not inform him
  that he would "not be entitled to an additional warning notice for a
  violation occurring after the seven days" provided by law for an
  opportunity to cure the violation.  We do not address this issue because
  defendant did not raise it before the trial court.

FN2.  An adjoining thirty-seven-acre parcel is owned by the estate of
  Mildred White.  Defendant's brother Anthony White is the administrator of
  the estate.  Anthony White represented the estate of Mildred White pro se
  before the superior court, but he has not appealed here.