Brennan Woods Limited Partnership v. Town of Williston
Annotate this Case
Brennan Woods Limited Partnership v. Town of Williston (2000-240);
173 Vt. 468; 782 A.2d 1230
[Filed 26-Sept-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2000-240
MARCH TERM, 2001
Brennan Woods Limited Partnership } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
Town of Williston }
} DOCKET NO. S1494-98CnC
Trial Judge: Edward J. Cashman
In the above-entitled cause, the Clerk will enter:
The Town of Williston appeals the summary judgment decision in favor
of plaintiff Brennan Woods Limited Partnership and grant of mandamus
compelling the Town to allocate sewage disposal capacity to plaintiff's
project under the phasing schedule imposed by plaintiff's Act 250 permit.
The Town contends: (1) The Town Select Board acted within its discretion
under the 1990 sewer allocation ordinance in imposing phasing requirements
to regulate growth in accordance with its Municipal Comprehensive Plan;
(2) the Board is not bound by the decision of the environmental court or
Act 250 permit regarding the phasing schedule for the Brennan Woods
project; and (3) mandamus is not a proper remedy in light of the board's
discretion. We affirm.
The following facts are not in dispute. Plaintiff's predecessor filed
a subdivision application on May 19, 1994 (FN1) with the town planning
commission to build 174 residential units on a 189-acre parcel on Mountain
View Road, in Williston, Vermont. On March 27, 1995, plaintiff's
predecessor applied for a sewer allocation of 39,150 gallons per day (gpd)
to cover the entire project. On July 27, 1995, the Board granted a partial
sewer service allocation of 3,600 gpd for the project to serve the initial
fifteen homes in the development. In May 1996, the town planning
commission granted subdivision approval for the project, but imposed a
phasing requirement limiting construction to fifteen homes a year and
delayed construction of more houses until July 1998. Plaintiff's
predecessor appealed to the environmental court.
The issue before the environmental court was whether the planning
commission was authorized to impose a phasing limitation on the project.
The court reviewed the zoning ordinance which requires the planning
commission to prepare a residential phasing policy to implement the
Williston Comprehensive Plan and zoning ordinance. The court found that
this provision of the zoning ordinance lacked any safeguards or standards
to which the planning commission must adhere when creating its phasing
policy. Accordingly, the court held that the zoning ordinance was an
impermissible delegation of authority to the planning commission, and that
therefore, the planning
commission lacked the authority to impose the phasing requirement. In re
Snyder Group Inc., No.E 96-099, slip op. at 2 (Vt. Env. Ct. June 19,
1997). The Town did not appeal the decision of the environmental court.
In September 1996, plaintiff's predecessor applied for an Act 250
permit. The Town provided comment to the District 4 Coordinator about the
project. Regarding sewer and water, the Town represented the following:
The Williston Selectboard granted a municipal sewer allocation on
July 27, 1995 to serve the initial 15 dwelling units of this
development. The balance of the sewer allocation must be made at
a later date. Normally, the Selectboard grants priority, as
additional sewer capacity becomes available, to a project that
has already received a partial allocation and is under
construction. Municipal water service is available to serve the
project.
The Town also indicated that the project conforms to its 1995 Comprehensive
Plan. The District 4 Commission ultimately granted a permit to plaintiff
that included a phasing plan commencing July 1, 1996, which allows
build-out of the project at a rate equivalent to twenty-two housing units
per year over a period of eight years. The Town did not appeal the
District Commission's grant of an Act 250 permit and phasing condition.
On May 28, 1998, the State approved an upgrade to the sewage plant the
Town owns with Essex and Essex Junction. The upgrade added 250,000 gpd to
the Town's share of uncommitted reserve capacity. The allocation of sewer
service is controlled by the Town sewer allocation ordinance. The
ordinance provides a list of allocation priorities under which existing
facilities which must be connected, but are not, and emergency pollution
abatements are afforded first priority. "Development projects within the
sewer service area which has [sic] been granted allocation in prior years
will have second priority." On June 18,1998, responding to the expanded
capacity in the tri-town sewage plant, the Board adopted Attachment A to
the sewer allocation ordinance allocating 52,510 gpd to residential
projects with existing partial sewer allocations. At that time,
plaintiff's project was one of four residential projects with existing
partial sewer allocations. On October 27, 1998, the Board adopted a
resolution to allocate 39,240 gpd (FN2) to plaintiff subject to the
following phasing requirement:
The allocation for Brennan Woods shall be for 5 single family
dwellings and 4 carriage homes (2130 gpd) in year 1998-1999, 15
single family dwellings (3750 gpd) in 1999-2000, 22 single family
dwellings (5500 gpd) in year 2000-2001, and a mix of single
family dwellings and carriage homes not exceeding 22 units in
each subsequent year through 2006-2007
(annual allocations not exceeding 5,500 gpd). Total allocation
over the entire development period shall be 39,240 gpd.
Plaintiff appealed the allocation phasing requirement to the superior
court pursuant to V.R.C.P. 76. Plaintiff and the Town filed motions for
summary judgment. Plaintiff argued that the October 1998 resolution was
not authorized by the applicable sewer ordinance and that the Board failed
to carry out its non-discretionary duty to release committed disposal
capacity to Brennan Woods. The Court granted summary judgment in favor of
plaintiff reasoning that the sewer allocation ordinance did not contain
any objective criteria or procedures for independently implementing growth
control policies beyond a standard of available sewer capacity, and
therefore, does not authorize the Board to impose phasing conditions. The
court also held that the phasing schedule imposed by the Act 250 permit
had become the only enforceable limitation on the rate at which the
project could be built. The Town appeals.
The Town contends it was authorized under the 1990 sewer allocation
ordinance to grant plaintiff its sewer allocation subject to the
Town-imposed phasing schedule. The Town maintains the phasing schedule
imposed by the October 27, 1998 resolution was intended to control the
growth and density of the Town's population as directed by the ordinance
and Comprehensive Plan, and was, therefore, authorized. The Town also
argues that the court erred in ruling that the only valid phasing
requirement was that imposed by the Act 250 permit. Finally, the Town
contends that mandamus was an improper remedy.
The superior court's decision with respect to the legality of the
phasing requirement rests on two conclusions: (1) the Town had limited
power to use the sewer allocation ordinance as a growth-control measure,
and its actions went beyond that limited power; and (2) through Appendix A,
the Town allocated the necessary sewer allocation to plaintiff, and it had
no power to undo that allocation in imposing conditions on the permit. We
examine the first conclusion in light of the Town's first contention that
the sewer allocation ordinance authorized the Board to make sewer
allocation decisions and impose conditions based on the goals of the
Municipal Comprehensive Plan.
"[A] municipality has only those powers and functions expressly
granted to it by the legislature, such additional functions as may be
incident, subordinate or necessary to the exercise thereof, and such
powers as are essential to the declared objects and purposes of the
municipality." Robes v. Town of Hartford, 161 Vt. 187, 190, 636 A.2d 342,
345 (1993). The Board acting as the board of sewage disposal
commissioners are "charged with the responsibility, among other things, to
construct, maintain, operate and repair sewer systems and sewage disposal
facilities." Bryant v. Town of Essex, 152 Vt. 29, 36, 564 A.2d 1052,
1055-56 (1989) (citing 24 V.S.A. 3401-3508 and 3601-3618)(internal
quotations omitted). In construing a municipal act, we will resolve all
doubts concerning a municipality's authority against the municipality.
Robes, 161 Vt. at 190, 636 A.2d at 345.
The parties agree that the controlling, applicable law is in Bryant v.
Town of Essex, but disagree on the force of that decision. Bryant held
that a town could use a sewer allocation ordinance to control growth
generally, but only if it acted under its zoning authority and the policy
was adopted
under the procedures required to adopt a zoning ordinance. Bryant, 152 Vt.
at 36, 564 A.2d at 1055. The Town does not claim it adopted its sewer
allocation ordinance under procedures applicable to zoning ordinances so
it can not claim this power.
Alternatively, Bryant holds that a sewer allocation ordinance can
"control population density and growth specifically with regard to the
sewer core area, that is with regard to the load on the sewer and sewage
disposal system." Id., 564 A.2d at 1056. We held that "[t]o the extent
that the population density and growth controlled by the [sewer
allocation] Policy are related to the load on the sewer and sewage
disposal system, the Town may allocate capacity of that system through the
Policy, as a power incidental to managing the sewage system." Id. Only
where decisions are based on the load to the sewer system, therefore, may
the sewer allocation ordinance be used to control population density and
growth.
The superior court held that the Board was not responding "to the load
on the sewer and sewage disposal system" in imposing its phasing schedule.
This conclusion is supported by the undisputed facts that the Town had
excess capacity as a result of the plant upgrade, it could easily meet all
second priority requests before moving on to lower priorities, and the
Board imposed exactly the same phasing schedule as had been adopted by the
planning commission and reversed, as unauthorized, by the environmental
court. The superior court's decision is fully consistent with Bryant.
In reaching this conclusion, we are not persuaded by the Town's claim
that 4(B)(ii) of the sewer allocation ordinance provides an objective
standard for making sewer allocations based on the Town's growth policy.
The section provides that "[t]he Board shall designate a portion of said
reserve capacity to be available for the fiscal year, may assign specific
capacities to zoning districts or user classifications or may establish
other conditions for assignment of capacity, which allocations and
conditions shall be in accordance with the goals of the Municipal
Comprehensive Plan." The superior court construed the language as
controlling growth only with respect to available sewage capacity. The
alternative interpretation, that the section allows decisions based on
growth limits in the town plan, conflicts with Bryant's holding that a
sewage allocation ordinance, not issued under the zoning power, can not
impose growth limits except in relation to the load on the sewer and
sewage disposal system.
We also reject the Town's attack on the second ground of the superior
court decision - that the Town had already allocated the sewage capacity
when it imposed the restrictive phasing requirements. The court found
that the Town committed to allocating 37,290 gpd to Brennan Woods in
Attachment A, attached to the minutes of a Board meeting. The Town
contends that because the Brennan Woods project was not identified in
Attachment A, the attachment cannot serve as a commitment of sewer
capacity to Brennan Woods. The internal memorandum containing the
recommendation for Attachment A belies this claim. The memorandum
recommends that the Town "clean-up" all previous commitments before
determining how to allocate the available balance. The ordinance required
exactly this approach. As recommended, the Board allocated 52,510 gpd to
this category, a number that can be reached only by including the Brennan
Woods allocation. The Town admitted as much in its answer to plaintiff's
complaint.
The Town also contends that the June 1995 partial allocation was not a
preliminary connection approval so that Brennan Woods was not entitled to
a second priority under the sewer allocation ordinance and could not have
been part of the four authorized projects in that priority. Again, the
court found against the Town on this point, and its holding is supported by
the undisputed facts in the record. Under the sewer allocation policy, a
preliminary connection approval "shall be a binding commitment of capacity
to the project contingent on compliance with any conditions attached to the
preliminary approval and the subsequent issuance of a final connection
approval." As demonstrated by the Town's representations to the District 4
Commission, the June 1995 partial allocation was a preliminary connection
approval. The Town represented to the District 4 Environmental Commission
that it had granted a sewer allocation to serve the initial fifteen
dwellings of the 174 unit project. The Town conceded that projects that
have received a partial allocation receive priority as additional sewer
capacity becomes available. The Town also pledged that the balance of the
requested allocation must be made at a later date. The only limitation or
qualification to the Town's commitment to allocate the necessary sewer
connections to the project, therefore, was the availability of additional
sewer capacity. This limitation was eliminated with the 1998 tri-town
facility upgrade.
We turn now to the Town's argument that the superior court misused the
Act 250 permit and the environmental court decision. The Town argues that
it is not bound by the phasing schedule imposed by the Act 250 permit
because it did not participate or appear at the hearing. Although we
disagree with the argument because the Town was a party to the Act 250
proceeding, see 10 V.S.A. 6085 (c)(1), we find it largely irrelevant.
The Act 250 phasing schedule controls because the more restrictive
schedule imposed by the Town is invalid and not because the Town was a
party to the Act 250 proceeding.
Next, the Town argues that the court's reliance on the decision of the
environmental court to further buttress its conclusion that the Act 250
permit is the only valid phasing requirement is misplaced. As discussed
above, the main significance of the environmental court decision is that it
struck down the identical phasing requirements when they were imposed by
the planning commission. The superior court's decision does not hold that
the environmental court has appellate jurisdiction over actions of the
Board.
As its third and final main argument, the Town contends that mandamus
was improper because the decision to grant a final connection approval for
the project is discretionary under Bryant. See Bryant, 152 Vt. at 40, 564 A.2d at 1057-58. The requested relief and authority of the Board in
Bryant, however, are distinguishable from the issues in the present action.
In Bryant, we found that mandamus would be an improper remedy because the
decision to extend the sewer system is discretionary under the statutory
authority of the Town or Board to construct and operate a sewage plant and
system. Id. In contrast, we have held here that controlling growth is not
incident to the statutory power of the Board to manage the sewer system
where growth control is not tied to the load on the sewer capacity.
Lacking the authority to control population density and growth in the
manner it did, the Board's decision to achieve this purpose through
implementing phasing conditions is not discretionary.
Where the decision-making is compelled by statute or other authority
beyond the Board, mandamus is a proper remedy. See Corcoran v.
Bennington, 128 Vt. 482, 490, 266 A.2d 457, 463 (1970). Here, the sewer
allocation ordinance imposed upon the Board the duty to issue a final sewer
connection approval permit once all conditions of the preliminary
connection approval and final connection approval had been met. The only
condition suggested by the preliminary connection approval was that the
Town obtain additional sewer capacity. That condition was met with the
tri-town upgrade. The ordinance outlines three conditions for final
connection approval: (1) the applicant must secure applicable local, state
and federal permits for the project; (2) all fees related to the
connection have been paid; and (3) the plans and specifications for
connection to the municipal sewers are approved by the Board. Once these
conditions have been satisfied, the Board "shall issue the final
connection approval permit." Plaintiff has obtained all permits and paid
all fees. After the sewer upgrade, the additional sewer allocation was
approved through Attachment A.
All conditions for the final connection approval having been met,
plaintiff had a right to final connection approval for the project, and
the Board had a duty to grant this approval. Mandamus, therefore, was
proper. See id. at 490, 266 A.2d at 463 (mandamus will lie to compel
performance of duty where the right to be enforced becomes certain);
Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298, 300, 476 A.2d 125, 126
(1984) (mandamus granted where party requesting relief has a clear legal
right to the performance of duty and the law affords no other remedy).
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. Plaintiff is the successor in interest to all permits and approvals
regarding the project.
FN2. There is a discrepancy between the initial allocation number of 37,290
gpd and the final allocation number of 39,240 gpd. The discrepancy is not
relevant to any appeal issue.
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