In re Hignite

In re Hignite  (2003-067); 176 Vt. 562; 844 A.2d 735

2003 VT 111

[Filed 10-Dec-2003]

                                 ENTRY ORDER

                                 2003 VT 111

                      SUPREME COURT DOCKET NO. 2003-067

                            SEPTEMBER TERM, 2003

  In re Appeal of Carolyn Hignite     }     APPEALED FROM:
                                      }
                                      }
                                      }     Environmental Court
                                      }     
                                      }
                                      }     DOCKET NO. 49-2-02 Vtec

  Trial Judge: Richard W. Norton

       In the above-entitled cause, the Clerk will enter:

       ¶ 1   This matter arose out of zoning permit issued by the Town of
  Castleton to appellee Dr. Roshan Sivagnanam for improvements to his camp on
  Lake Bomoseen.  Appellant Carolyn Hignite, who owns a camp adjacent to Dr.
  Sivagnanam's, appealed the permit to the Town's zoning board of adjustment,
  and Dr. Sivagnanam appealed a subsequently issued notice of violation. The
  Board dismissed Hignite's appeal as untimely, and granted Dr. Sivagnanam's
  appeal, dismissing the notice of violation.  Hignite appealed the decisions
  to the environmental court.  The court granted Dr. Sivagnanam's motion to
  dismiss, and entered a final judgment in his  favor.  Hignite contends the
  court erred in: (1) finding that her appeal of the permit was time barred;
  and (2) failing to address issues relating to the notice of violation.  We
  agree with the second contention, and therefore reverse and remand.

                   a.   Background and Procedural History

       ¶ 2   The record discloses the following. On September 11, 2000,
  the Town's zoning administrator received from Dr. Sivagnanam an application
  for a permit to perform certain work on his camp, including the
  construction of two decks facing the lake.  Hignite, who owns a lakefront
  camp adjacent to Dr. Sivagnanam, alleges in her affidavit that she visited
  the zoning administrator's office on September 14 to review the
  application, informed the administrator that it contained inaccurate
  information, and was told to put her objections in writing.  The zoning
  administrator issued the permit that same day.  Hignite claims that the
  administrator failed to inform her that the permit had issued, and failed
  to post the permit in a public place for fifteen days following issuance,
  as required by 24 V.S.A. § 4443((b)(2).(FN1)     
   
       ¶ 3   On October 13, the administrator received Hignite's letter
  outlining her belief that the distances from the proposed decks to her
  property line were a few feet less than Dr. Sivagnanam had represented in
  his application, and violated the setback requirements of the Town's zoning
  ordinance.  The administrator responded to Hignite in a letter on the same
  day, indicating that the permit had issued, explaining that "[i]t appears
  you would be in a position to appeal my decision on the permit" to the
  zoning board of adjustment (Board), and stating that Hignite would be given
  a hearing before the Board where "you will be permitted to state your
  case."  Hignite filed her appeal on October 18.                       

       ¶ 4   The Board discussed the matter several times over the next
  year, but did not act on Hignite's appeal.  In late August 2001, Hignite's
  attorney wrote the zoning administrator, asserting that Dr. Sivagnanam's
  new decks exceeded 300 square feet and violated the setback requirements of
  the zoning ordinance.  The ordinance contains a provision that no zoning
  permit is required, nor are setbacks applicable to, newly constructed decks
  not over 300 square feet or three feet above the level of the ground story. 
  Several days later, the zoning administrator issued a notice of violation
  to Dr. Sivagnanam, stating that he was in violation of the zoning ordinance
  due to the "[c]onstruction of a structure and improvements without a
  permit, to the extent those improvements and any other modifications are
  not specifically approved.  The structure erected being a building or
  addition to a building."  

       ¶ 5   Dr. Sivaganam appealed the notice of violation to the Board,
  arguing that it failed to state with specificity the nature of the alleged
  violation, in violation of his constitutional right to due process, and
  that to the extent it involved the decks the permit was final and the
  appeal filed by Hignite was untimely under 24 V.S.A. § 4464(a).  The
  statute provides that an appeal from a decision of the zoning administrator
  to the Board must be filed within fifteen days of the administrator's
  decision.  Hignite's October 18 appeal of the administrator's September 14
  decision was unquestionably out of time.  

       ¶ 6   On January 15, 2002, the Board issued separate findings of
  fact and conclusions of law on the two appeals.  The Board denied Hignite's
  appeal of the permit, concluding that it was untimely under § 4464.  The
  Board granted Dr. Sivagnanam's appeal of the notice of violation,
  concluding that no permit was necessary under the zoning exemption. 
  Hignite then filed a pro se notice of appeal with the environmental court,
  stating that she "wish[ed] to appeal . . . the decision of the Castleton
  Zoning Board of Adjustment dated January 15,  2002  with regard to the
  application of Dr. Roshan Sivagnanam."  

       ¶ 7   Dr. Sivagnanam, in response, moved to dismiss the appeal or,
  in the alternative, for summary judgment on the ground that Hignite's
  untimely appeal to the Board had deprived the court of jurisdiction.  See
  Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640
  (1992) (failure to perfect timely appeal to board of adjustment deprives
  court of subject matter jurisdiction).  The trial court granted the motion
  in a brief entry order, noting that Hignite had failed to file a timely
  response to the motion, and concluding that her untimely appeal to the
  Board justified dismissal.  Hignite moved to alter or amend the court's
  ruling, asserting that her failure to file a timely response was based on a
  misunderstanding, that her permit appeal remained viable because the Town
  had failed to comply with the notice requirements of § 4464, and that the
  notice-of-violation issue remained to be addressed.  The court denied the
  motion on the ground, among others, that it was untimely.  Hignite then
  moved for reconsideration, resulting in a third order in which the court
  acknowledged that the previous motion had been timely, reaffirmed its
  finding that the court lacked jurisdiction because the initial permit
  appeal was untimely, and generally concluded that "[a]ll other arguments
  have been considered and have been found to be without merit."  The court
  entered a final judgment order in favor of Dr. Sivagnanam.  This appeal
  followed.
       
                               1.   Discussion

       ¶ 8   The question whether the Town's alleged failure to provide
  the statutorily required constructive notice should allow Hignite to
  proceed with her appeal raises an interesting and unsettled issue. 
  Although we have consistently held that the failure to appeal a zoning
  decision to the  board of adjustment bars a subsequent challenge "even when
  the decision is alleged to have been void ab initio," City of S. Burlington
  v. Dep't of Corr., 171 Vt. 587, 589, 762 A.2d 1229, 1231 (2000) (mem.),
  none of our prior decisions involved a claim that a timely challenge was
  precluded by a town's failure to provide the required notice.  Even
  assuming, as we have elsewhere held, that constructive rather than personal
  notice is sufficient, In re Great Waters of America, Inc., 140 Vt. 105,
  109-110, 435 A.2d 956, 959 (1981), the question remains whether due process
  or fundamental administrative fairness requires that a party deprived of
  notice of a zoning permit be allowed to  contest the permit,
  notwithstanding the strong policy interests in finality.  

       ¶ 9   We need not, however, resolve that issue here, for the claims
  that Hignite apparently hoped to raise with respect to the granting of the
  permit were essentially comparable to those underlying the subsequent
  notice of violation issued by the zoning administrator, which was properly
  before the Board and the trial court.  See In re Charlotte Farm & Mills,
  172 Vt. 607, 608, 779 A.2d 684, 686 (2001) (mem.) (failure to appeal zoning
  permit does not bar zoning administrator's subsequent action to enforce
  zoning laws). As noted, Hignite was concerned with alleged inaccuracies in
  the application concerning set-back distances and deck dimensions.  The
  basis of the notice of violation  issued by the zoning administrator was
  less than clear, but the hearing before the Board and the Board's
  subsequent findings and conclusions clarified that the Town's concerns were
  essentially the same.  The Board found in this regard that there was no
  zoning violation because the deck's measurements and setbacks were
  accurately represented and qualified the project for a permit exemption. 
  Furthermore, although Dr. Sivagnanam claims that Hignite failed to appeal
  the notice-of-violation ruling because the notice of appeal referred
  somewhat ambiguously to the Board's decision "with regard to the
  application," viewed in light of the statement of questions filed shortly
  thereafter under V.R.C.P. 76(e)(4)(B), we have no doubt as to Hignite's
  intent to appeal both rulings to the environmental court.  See Peabody v.
  Home Ins. Co., 170 Vt. 635, 638, 751 A.2d 783, 786 (2000) (mem.) (appeal
  rights are to be liberally construed in favor of persons exercising those
  rights); Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) ("[N]otices of
  appeal are to be liberally construed in favor of their sufficiency."). 
        
       ¶ 10   Although properly appealed and brought to the court's
  attention in both the motion to alter or amend and the motion for
  reconsideration, the notice-of-violation issue was never addressed by the
  trial court.  Whatever the meaning of the court's broad rejection of "[a]ll
  other arguments" in its order denying the motion for reconsideration, it
  does not represent an adequate decision on the merits for purposes of
  appellate review.  See New England P'ship v. Rutland City Sch. Dist., 173
  Vt. 69, 74,786 A.2d 408, 413 (2001) (trial court has fundamental duty to
  make all findings necessary to support its conclusions, resolve issues
  before it, and provide adequate basis for appellate review).  Accordingly,
  we conclude that the judgment must be reversed, and the matter remanded to
  the trial court to address this issue.

       The judgment is reversed, and the case is remanded for further
  proceedings consistent with the views expressed herein.               
       
              


  BY THE COURT:


  _______________________________________
  Jeffrey L. Amestoy, Chief Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned

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                                  Footnotes

  FN1.  Dr. Saivaganam asserts, to the contrary, that the administrator
    complied with the statute by posting the permit for the requisite
    fifteen-day period.  As explained below, our disposition of the appeal
    renders this factual dispute immaterial.