Town of Grand Isle v. Patry

Town of Grand Isle v. Patry (2002-468); 176 Vt. 627; 852 A.2d 573

2004 VT 24

[Filed 09-Mar-2004]
[Motion for Reargument Denied 14-Apr-2004]


                                 ENTRY ORDER

                                 2004 VT 24

                      SUPREME COURT DOCKET NO. 2002-468

                             NOVEMBER TERM, 2003

  Town of Grand Isle	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Environmental Court
                                       }	
  Ivan Patry	                       }
                                       }	DOCKET NO. 124-6-02 Vtec

                                                Trial Judge: Merideth Wright

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


       ¶  1.  Landowner Ivan Patry appeals from the environmental court's
  decision ordering him to remove his trailer and to apply to the Town of
  Grand Isle for various land-use permits before developing his property.  We
  reject landowner's contention that a two-hundred-year-old land grant, from
  which he claims he can trace his chain of title, precludes the Town from
  applying state and local zoning laws to his property.  Accordingly, we
  affirm the environmental court's decision.

       ¶  2.  Landowner acquired the subject property by quit-claim deed on
  May 14, 2002.  Because the property is only 45 feet wide and 480 feet long,
  any dwelling would violate the Town's 25-foot setback requirement. 
  Nevertheless, without applying for any municipal permits or variances,
  landowner placed a travel camper on the property, uncovered a failed septic
  system, and began to construct a water drainage system.  He planned to
  replace the old septic system and build some type of residence on the
  property.  On May 20, 2002, the Town's zoning administrator issued a
  written notice detailing several zoning violations and informing landowner
  that he could appeal the notice of violation to the Town's development
  review board within fifteen days.
        
       ¶  3.  On June 4, 2002, the fifteenth day following the notice of
  violation, the Town asked the environmental court to preliminarily enjoin
  landowner from engaging in any further development activity on the
  property. (FN1)  Two days later, the Town filed a complaint seeking
  injunctive relief and the imposition of monetary penalties.  On June 14,
  2002, following a hearing, the court granted the Town's request for a
  preliminary injunction.  The court ruled that landowner was required to
  apply for municipal permits, even assuming that the property had been
  passed down in an unbroken chain of title from the original 1779 land
  grant.  The court ordered landowner to remove the travel trailer from the
  property until he obtained a setback variance, to apply for a drainage
  permit for drainage work already done, to apply for a septic system permit,
  to obtain a variance for setback requirements pertaining to any other work
  done on the property, and to apply for a building permit.  In an October
  14, 2002 decision, after landowner unsuccessfully attempted to have the
  case removed to federal court, the environmental court denied landowner's
  motion for reconsideration and directed an entry of final judgment as to
  the issues decided in its June 14 order.  The court decided that landowner
  should not be subjected to a hearing on penalties until he had an
  opportunity to appeal the question of whether the Town's zoning laws
  applied to his property.

       ¶  4.  On appeal, landowner argues that the environmental court
  erred by subjecting his property to the Town's zoning laws.  He contends
  that a 1779 land grant known as the "Charter of the Two Heroes," from which
  he claims his property was passed down through an unbroken chain of title,
  is a contract that conferred a right of inhabitation and other privileges,
  and that 24 V.S.A. § 4490 prohibits the Town from applying its zoning laws
  to interfere with those rights obtained under the land grant.  Section 4490
  states that the provisions of the Vermont Planning and Development Act, 24
  V.S.A. §§ 4301-4495, which took effect in March 1968, "shall not affect any
  act done, contract executed or liability incurred prior to March 23, 1968." 
  The Act sets forth statewide criteria for the implementation and
  enforcement of local zoning ordinances.  See 24 V.S.A. § 4401(b)(1)
  (authorizing municipalities to adopt zoning regulations to permit,
  prohibit, restrict, regulate and determine land development); id. §
  4443(a)(1) (prohibiting land development within area affected by zoning
  regulations unless administrative officer issues zoning permit in
  conformance with regulations); id. § 4445 (authorizing zoning administrator
  to institute enforcement proceedings upon violation of zoning laws).

       ¶  5.  We find no merit to landowner's argument.  The Charter of the
  Two Heroes does not immunize land conveyed therein from land-use regulation
  later enacted pursuant to the state's police powers.  See Galanes v. Town
  of Brattleboro, 136 Vt. 235, 240, 388 A.2d 406, 410 (1978) ("the sanction
  behind zoning laws is the police power of the state, constitutionally
  exercised where it is reasonably related to public health, safety, morals
  or general welfare"); 24 V.S.A. § 4302(a) (purpose of Vermont Planning and
  Development Act, among other things, is "to encourage the appropriate
  development of all lands in this state . . . in a manner which will promote
  the public health, safety against fire, floods, explosions and other
  dangers").  The Charter granted most of what is now known as Grand Isle to
  patriots who fought the British during the Revolutionary War.  The Charter
  declares that those who thereafter inhabit the land shall be entitled

    to all Priviledges & Immunities that the Inhabitents of other
    Towns do & ought by the Laws & constitution of this State exercise
    & Enjoy - To Have and to Hold, the said Granted Premises as above
    expressed, in equal Shares and Rights, with all the Priviledges,
    and appurtenances thereto belonging or appertaining unto them and
    their Respective Heirs forever.

  The Charter of the Two Heroes (1779), State Papers of Vermont, Charters
  Granted by the State of Vermont 192, 195 (J. Williams ed., 2d ed. 1974). 

      ¶  6.  We fail to see how this language confers upon the grantees or their
  heirs a "right of inhabitation" exempting them from zoning laws.  The
  language awards the grantees land along with the concomitant privileges
  enjoyed by landowners in other towns.  Nothing in that language, however,
  suggests that the Charter was intended to strip the state of any of its
  police powers, including the power to regulate land use and development. 
  See Dodge v. Town of Worcester, 129 Vt. 441, 444-45, 282 A.2d 799, 801-02
  (1971) (language in charters did not provide express perpetual exemption
  from taxation of leased lands; such exemption could be claimed only if it
  formed express condition of grant); Herrick v. Town of Randolph, 13 Vt.
  525, 530 (1841) (same).  Further, the fact that modern zoning did not exist
  at the time of the 1779 land grant does not demonstrate that the state
  abdicated its right to exercise whatever police powers would be required at
  a later time.  See Williams v. Town of North Hero, 46 Vt. 301, 319 (1873)
  (provisions of 1779 land grant "were not settled and adopted with sharpness
  of attention to the terms used, or with cautious consideration of the
  possible questions that the course of events thereafter, in the progress of
  population and society, might give rise to").

       ¶  7.  Landowner's reliance on the Treaty of 1783 is even more
  tenuous.  Apparently, landowner claims that the Treaty, which was intended
  to resolve land disputes between American and British citizens following
  the Revolutionary war, provided a limited amount of time for anyone to
  contest the property rights granted under the Charter of the Two Heroes,
  and that the Town, having failed to do so, cannot now apply its zoning laws
  in degradation of those property rights.  This case does not involve any
  land dispute between British and American citizens.  Nor is it likely that
  such a dispute would be actionable more than two hundred years after the
  fact.  Cf. Robins Island Preservation Fund v. Southold Dev., 959 F.2d 409,
  422 (2d Cir. 1992) (finding "no logic in the proposition that Great Britain
  and the United States bargained for and created a right of action that
  would survive the inaction of the aggrieved parties and their heirs over a
  period of centuries").  In any event, as noted, no rights granted in the
  Charter exempted landowner from the application of municipal zoning laws;
  therefore, the Treaty could not have preserved any such rights.

       ¶  8.  Landowner's reliance on 24 V.S.A. § 4490 is also unavailing. 
  Section 4490 provides that the Vermont Planning and Development Act "shall
  not affect any act done, contract executed or liability incurred prior to
  March 23, 1968."  As noted, the Charter of the Two Heroes provided no
  special property rights beyond those enjoyed by landowners in all towns,
  and thus is not inconsistent with the imposition of zoning regulations.  As
  with the Treaty of 1783, § 4490 cannot preserve rights never granted in the
  Charter.  Section 4490 does not exempt from the Act all land in which title
  can be traced to pre-existing land grants.  Rather, the provision merely
  acknowledges that the Act would have no effect on pre-existing, executed
  contracts concerning land use or development - such as contracts to convey
  parcels of land below the minimum acreage allowed under zoning regulations. 
  Without the support of § 4490 or the eighteenth century documents,
  landowner's argument amounts to only a premature takings claim.  See
  Killington, Ltd. v. State, 164 Vt. 253, 257, 668 A.2d 1278, 1281 (1995)
  (regulatory takings claims are not ripe for review until applicant has
  obtained final decision regarding permit request and has utilized state
  procedures for obtaining just compensation).
   

       ¶  9.  Although the Town did not file a cross-appeal, it raises two
  arguments of its own.  First, the Town contends that the environmental
  court erred by accepting a lay witness's testimony concerning the title
  search done on the subject property.  Given our resolution of this appeal,
  we need not address this issue, assuming that it is properly before us. 
  The environmental court made no legal ruling on the validity of landowner's
  title search; rather, the court merely assumed, for purposes of this
  litigation, that the subject property had been passed down to landowner
  through an unbroken chain of title from the Charter of the Two Heroes.

       ¶ 10 .  The Town also argues that the environmental court erred by
  directing entry of final judgment with respect to the Town's request for a
  preliminary injunction without determining what fines should be assessed
  against landowner.  We conclude that the Town's claim of error is both
  inadequately briefed and unnecessary.  While the environmental court's
  decision to direct a final judgment in this matter is questionable, see
  Kelly v. Lord, 173 Vt. 21, 31, 783 A.2d 974, 982 (2001) (setting forth
  necessary prerequisites for invoking Rule 54(b), including requirement that
  there be multiple parties or claims for relief); 10 C. Wright, A. Miller, &
  M. Kane, Federal Practice and Procedure § 2656, at 48 (3d ed. 1998) (noting
  that Rule 54(b) may be invoked only in relatively select group of cases and
  applied to even more select category of decisions), Town fails to brief
  issues concerning the limits of Rule 54(b) or the nature of orders granting
  preliminary injunctive relief.  In any event, the relief the Town is
  seeking - remand for the environmental court to consider the Town's request
  for penalties - follows from our affirmance of the court's June 14 and
  October 14, 2002 orders.  In short, assuming that the Town's argument is
  properly before us, it is superfluous.

       Affirmed; cause remanded for further proceedings in the environmental
  court.



                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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                                  Footnotes


FN1.  Apparently, landowner never appealed the zoning administrator's notice
  of violation, even though the notice satisfied due process requirements by
  informing him that he had fifteen days to appeal the decision to the
  development review board.  See Town of Randolph v. Estate of White, 166 
  Vt. 280, 287, 693 A.2d 694, 698 (1997) ("To meet due process requirements,
  the notice of a zoning violation must inform the defendant how to contest
  the decision.").  Under §§ 4464(a) and 4472(a) of Title 24, the exclusive
  remedy for seeking review of a zoning administrator's decision is to appeal
  within fifteen days of the decision to the board of adjustment or the
  development review board.  Failure to do so precludes an interested party
  from challenging a notice of violation in a later enforcement proceeding. 
  See Town of Charlotte v. Richmond, 158 Vt. 354, 356-57, 609 A.2d 638, 639
  (1992).  In this case, however, the environmental court did not consider
  this issue, and the Town has not raised the issue either before the
  environmental court or here on appeal.  Under these circumstances, we will
  address the merits of landowner's appeal.