Richards v. Town of Norwich

Richards v. Town of Norwich  (98-074); 169 Vt. 44; 726 A.2d 81

[Filed 29-Jan-1999]


  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. 98-074


Stuart Richards                                  Supreme Court

                                                 On Appeal from
     v.	                                         Windsor Superior Court

Town of Norwich and	                         September Term, 1998
Paul Z. Nowicki


Alan W. Cheever, J.

       C. Daniel Hershenson of Hershenson, Carter, Scott & McGee, Norwich,
  for Plaintiff- Appellant.

       Laura O'Connor of Miller & Candon, Norwich, for Defendant-Appellee
  Nowicki.

       Gary R. Wieland, White River Junction, for Defendant-Appellee Town of
  Norwich.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Stuart Richards appeals a Windsor Superior Court order
  dismissing  his Rule 75 appeal of the Town of Norwich Selectboard's
  decision authorizing an on-site septic  system permit for Paul Nowicki. 
  Richards argues that he alleged facts in his complaint sufficient  to
  assert standing and, therefore, the superior court erred when it dismissed
  his Rule 75 action for  failure to state a claim upon which relief can be
  granted.  We reverse.


       In 1973, the Town of Norwich ("town") adopted an ordinance ("1973
  ordinance") that  established minimum standards regulating the design,
  construction and installation of new on-site  septic systems to be located
  on any town lot.  The minimum standards were intended to ensure  that waste
  discharged from individual septic systems does not contaminate water,
  create a health  hazard or constitute a nuisance.  The 1973 ordinance also
  included a special-cases provision which  allowed for the issuance of
  permits for septic systems which did not meet the standards, 

 

  if the town septic administrator determined that the substandard septic
  systems were consistent  with the protection of public health and safety.

       Ten years later, the Legislature adopted 24 V.S.A.  3631-3635
  ("state sewage statute")  requiring the Secretary of Natural Resources to
  establish minimum standards for municipal  ordinances regulating on-site
  septic systems.  See 1983, No. 117 (Adj. Sess.).  Under the state  sewage
  statute, a municipality may adopt an ordinance regulating septic systems,
  but it must be  at least as stringent as the minimum standards developed by
  the Secretary of Natural Resources  in order to obtain the approval
  necessary to validate it.  See id. at  3633(b) (requiring  certification
  to that effect by Department of Environmental Conservation).

       The town amended the 1973 ordinance in 1994 and adopted a modified
  septic ordinance  ("modified ordinance") even though the design
  specifications in the modified ordinance did not  satisfy the state minimum
  standards and were not approved by the Department of Environmental 
  Conservation.  The non-compliance provision remained unaltered in the
  modified ordinance.  In  1996, Paul Nowicki, a resident of the town, filed
  an application for a permit to install a new on- site septic system on his
  residential lot.  His proposed septic system did not meet the minimum 
  standards established by the modified ordinance.  Nowicki requested and was
  granted approval  of his septic system pursuant to the special-cases
  provision.

       Stuart Richards appealed the decision authorizing Nowicki's
  sub-standard septic system  to the Norwich selectboard.  He complained that
  the septic administrator could not issue a permit  for a septic system that
  failed to comply with the design specifications set out in the modified 
  ordinance or the state minimum standards.  After a hearing, in which
  Richards participated, the  selectboard upheld the Nowicki septic system
  permit.


       In April 1997, Richards filed a complaint in the superior court
  pursuant to V.R.C.P. 75  and the Declaratory Judgments Act, 12 V.S.A. 
  4711-4725, seeking review of the selectboard's  decision.  Richards'
  complaint alleges that Nowicki's proposed septic system fails to meet state 
  and local minimum standards governing the design, construction and
  installation 

 

  of new on-site septic systems and, therefore, has the potential to
  contaminate water, constitute a  health hazard and create an olfactory
  nuisance.  The complaint further alleges that Richards is the  owner of
  land directly abutting the property where Nowicki intends to install his
  proposed septic  system.   Subsequently, Nowicki filed a motion to dismiss
  pursuant to V.R.C.P. 12(b)(1) and  12(b)(6).  The superior court granted
  the Rule 12(b)(6) motion and dismissed the case.

       In its order granting Nowicki's motion, the court stated that on the
  face of the complaint,  a plaintiff must allege at least the threat of an
  injury in fact to some protected interest in order to  establish standing
  to seek declaratory relief.  The court held that Richards did not satisfy
  the  standing requirements for a declaratory judgment action because he did
  not allege any threat of  actual injury and "Rule 75 does not cure the
  deficiency."  The present appeal followed.

                                     I.


       As a threshold matter, we must determine whether Richards has the
  right under Rule 75  to appeal the selectboard's decision before we can
  decide whether the superior court erred in  granting Nowicki's Rule
  12(b)(6) motion.  Nowicki argues that Richards is not entitled to a Rule 
  75 appeal of the selectboard's decision because he seeks review of issues
  of fact.

       In relevant part, Rule 75 permits the appeal of (1) any action by a
  political subdivision of  the state, including any board, (2) which is not
  appealable under Rule 74, (3) if review is  otherwise available by law. 
  See V.R.C.P. 75(a).  This Court has interpreted the Rule 75  requirement
  that review must be "otherwise available by law" to include situations
  where review  was formerly available through a writ of certiorari.  See
  Vermont State Employees' Ass'n, Inc.,  v. Vermont Criminal Justice Training
  Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997).   Prior to its
  abolition, review by writ of certiorari was limited to quasi-judicial acts
  of government  agencies and confined to substantial questions of law
  affecting the merits of the case.  See  Burroughs v. West Windsor Bd. of
  Sch. Dirs., 141 Vt. 234, 237, 446 A.2d 377, 379 (1982).


       The Town of Norwich is a political subdivision of the State and the
  selectboard is a board 

 

  thereof.  Thus, Richards satisfies the first prerequisite to Rule 75
  review.  Because neither the  State sewage statute nor the Norwich septic
  ordinance provide for review, Richards meets the  second prerequisite to
  Rule 75 review as well.  See V.R.C.P. 74(a) (Rule 74 applies only when 
  right to appeal decisions of governmental agencies is granted by statute). 
  Finally, a writ of  certiorari would have permitted an appeal in the
  instant case since the proceedings on Nowicki's  application for a septic
  system permit were quasi-judicial in nature:  the parties were allowed 
  representation by counsel, testimony was presented to and considered by the
  selectboard and a  decision was issued.  See In re St. George, 125 Vt. 408,
  411-12, 217 A.2d 45, 47 (1966)  (selectboard exercises quasi-judicial
  duties in determining facts and deciding whether grant of  landfill permit
  will give rise to nuisance).  Therefore, Richards satisfies the
  prerequisites for a  Rule 75 appeal of the selectboard's decision.

       Nowicki, however, contends that a Rule 75 appeal is not available to
  Richards because he  improperly seeks factual review of whether Nowicki's
  septic system meets the state minimum  standards.  He argues that Richards
  claimed in his reply to Nowicki's motion for summary  judgment that there
  were numerous material issues of fact in dispute for which Richards sought 
  review.  Nowicki claims that because Richards' complaint was filed pursuant
  to the Declaratory  Judgments Act, that permits review of the selectboard's
  factual findings, Richards seeks to  impermissibly enlarge the jurisdiction
  of the superior court under Rule 75.  See Molesworth v.  University of
  Vermont, 147 Vt. 4, 7, 508 A.2d 722, 723 (1986) (Declaratory Judgments Act
  has  neither increased nor enlarged jurisdiction of superior court).


       Nowicki correctly notes that an appeal pursuant to the former writ of
  certiorari was limited  to review of judicial action by inferior courts and
  confined to substantial questions of law affecting  the merits of the case. 
  See Burroughs, 141 Vt. at 237, 446 A.2d  at 379.  Thus, Rule 75 provides 
  only for review of legal issues raised by the selectboard's issuance of a
  permit for Nowicki's  substandard septic system.  See Molesworth, 147 Vt.
  at 7, 508 A.2d  at 723 (Rule 75 review of decision denying student resident 
  tuition status confined to review of University

 

  residency officer's quasi-judicial action and limited to addressing
  substantial questions of law  affecting merits of case).

       In his complaint, Richards requests an order declaring that the
  selectboard's decision to  issue a permit for Nowicki's substandard septic
  system violates of the state sewage statute.   Nowicki attempts to
  characterize Richards' complaint as a request for a factual determination
  of  whether the design specifications of Nowicki's septic system comply
  with the minimum standards  of the Norwich septic ordinance.  However,
  neither party disputes that Nowicki's septic permit  was granted under the
  special-cases provision contained in the Norwich septic ordinance, which 
  allows for the issuance of permits for septic systems that fail to meet the
  minimum standards of  the ordinance.  Rather than the factual determination
  Nowicki contends is sought by Richards'  complaint, the declaratory relief
  actually requested seeks review of whether it is legally  permissible under
  the state sewage statute for the selectboard to issue a permit for a septic
  system  that does not comply with the state minimum standards.  This is a
  question of law.  Richards is  entitled to a Rule 75 appeal of the
  selectboard's approval of Nowicki's septic system.

                                      II.

       We next address whether the superior court erred when it dismissed
  Richards' Rule 75  appeal for lack of standing.  Nowicki argues that the
  court properly granted his Rule 12(b)(6)  motion to dismiss because
  Richards failed to allege that he was suffering from an injury-in-fact  as
  a result of the selectboard decision.  He asserts that Richards'
  allegations of generalized harm  and abutting landowner status are
  insufficient to satisfy the standing requirements of Rule 75.  	

       A motion to dismiss for failure to state a claim upon which relief can
  be granted should  not be granted unless it is beyond doubt "that there
  exist no facts or circumstances that would  entitle the plaintiff to
  relief."  Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997).   When
  reviewing the disposition of a Rule 12(b)(6) motion to dismiss, this Court
  assumes that all  factual allegations pleaded in the complaint are true. 
  See id.  We accept as true all 

 

  reasonable inferences that may be derived from plaintiff's pleadings and
  assume that all  contravening assertions in defendant's pleadings are
  false.  See id.


       In order to establish standing to seek declaratory relief, a
  "plaintiff must allege at least the  threat of an `injury in fact' to some
  protected interest in order to establish his or her standing."  Town of
  Cavendish v. Vt. Pub. Power Supply Auth., 141 Vt. 144, 147-48, 446 A.2d 792, 794  (1982).  Generally, proceedings under Rule 75 are governed by the
  Rules of Civil Procedure.  See  V.R.C.P. 75(b) (proceedings under Rule 75
  governed by Rules of Civil Procedure unless modified  by this rule or
  otherwise provided by statute).  A Rule 75 complaint must contain a
  "concise  statement of the grounds upon which the plaintiff contends the
  plaintiff is entitled to relief, and  shall demand the relief to which the
  plaintiff believes the plaintiff to be entitled."  Id.  Similarly,  Rule
  8(a) requires that a complaint include a "short and plain statement"
  showing that the plaintiff  is entitled to relief and a demand for the
  relief sought.  See V.R.C.P. 8(a).  A complaint need not  provide a
  detailed and specific statement of the facts that constitute a cause of
  action, but must be  sufficiently clear and certain to enable the defendant
  to respond.  See Harris v. Carbonneau, 165  Vt. 433, 439, 685 A.2d 296, 300
  (1996).  The sufficiency of a complaint depends on whether it  provides
  fair notice of the claim and the grounds upon which it rests.  See Mintz v.
  Matalon, 148  Vt. 442, 444, 535 A.2d 783, 785 (1987).


       Richards' complaint indicates that he brings this action pursuant to
  Rule 75.  He alleges  that he owns land directly abutting Nowicki's
  property.  He also alleges that Nowicki's proposed  septic system is to be
  located on property where the soil conditions and lot size prevent 
  compliance with the modified ordinance.  Moreover, Richards claims that
  because Nowicki's  proposed septic system does not satisfy the minimum
  standards established by the state or the  modified ordinance, it therefore
  has the potential to create an olfactory nuisance.  Implicit in the 
  concept of nuisance is an individual's interference with the use and
  enjoyment of another's  property.  See Coty v. Ramsey Assocs., Inc., 149
  Vt. 451, 457, 546 A.2d 196, 201 (1988).  

  

       It is reasonable to infer that a septic system that not only fails to
  comply with the state standards,  but also the town's unapproved standards,
  will give rise to an invasion of Richards' right to the  use and enjoyment
  of his property.  Thus, Richards has alleged the threat of an injury in
  fact to  a protected interest.

       Richards requests, among other relief, an order finding and declaring
  that the selectboard's  decision authorizing Nowicki's septic system
  violates the state sewage statute.  The complaint  provided Nowicki with
  fair notice of Richards' claim as contemplated by Rule 8 and was clear and 
  certain enough to enable Nowicki to respond.  Nowicki's proposed standard
  for standing to  challenge the issuance of a permit for a substandard
  septic system would produce a rule requiring  a landowner to wait until the
  septic system is built, fails and harms the landowner before he or  she has
  standing to challenge the issuance of a permit.  

       Richards has the right under Rule 75 to appeal the selectboard's
  approval of Nowicki's  septic system and the complaint sufficiently
  establishes Richards' standing to challenge that  decision.  Accordingly,
  we reverse the superior court's dismissal of Richards' complaint for lack 
  of standing under Rule 75.

       Reversed.

                                      FOR THE COURT:



                                      _______________________________________
                                      Chief Justice