In re Champlain Oil Co.

In re Champlain Oil Co. (2003-111); 176 Vt. 458; 852 A.2d 622

2004 VT 44

[Filed 14-May-2004]


       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.


                                 2004 VT 44

                                No. 2003-111


  In re Champlain Oil Company	                 Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 January Term, 2004


                                                 Merideth Wright, J.

  John W. O'Donnell of Bergeron, Paradis & Fitzpatrick, LLP, Burlington, for
    Appellant.

  Jon Anderson and Jeremy Farkas of Burak Anderson & Melloni, PLC,
    Burlington, for Appellee.


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

       ¶  1.  JOHNSON, J.  Appellant, Champlain Oil Company, Inc., appeals
  from an order of the environmental court granting Appellee, R.L. Vallee,
  Inc.'s, motion for summary judgment on the grounds that Champlain's
  proposed site usage was illegal and should not have been permitted by the
  Town of Colchester's Planning Commission.  Champlain argues that the
  environmental court erred by 1) deciding the case based on a legal theory
  that Vallee did not raise at the planning commission level and 2)
  concluding that Champlain did not file the proper application in time to
  vest rights of review under then existing zoning laws.  We affirm.
   
       ¶  2.  The dispute arises out of Champlain's plan to open a
  convenience store with gasoline sales in the Town of Colchester (Town). 
  The proposed site for the project was an area known as Chimney Corners,
  adjacent to Interstate 89.  Champlain engaged in numerous discussions with
  the Town's planning and zoning staff, and filed its first set of
  application materials for the project on May 14, 2001.

       ¶  3.  Meanwhile, on August 16, 2001, the Town published the First
  Notice for Amendments to its Zoning Regulations (zoning amendments).  The
  zoning amendments created new zoning classifications for the Chimney
  Corners area.  In particular, the zoning amendments imposed new limits on
  convenience stores with gas sales mandating that "no new gas sale use shall
  be permitted or allowed within 3,000 feet of an existing gas sales use,
  except that this limitation shall not apply to the distance between gas
  sale uses located on opposite sides of the Interstate 89 right of way." 
  The town subsequently adopted the zoning amendments on September 16, 2001.  
  Champlain's proposed convenience store with gasoline sales is located on
  the same side of Interstate 89 within 3,000 feet of a gas station operated
  by Vallee, and thus would not be an allowable use under the zoning
  amendments.

       ¶  4.  The Town began review of Champlain's application and at various
  times requested additional information to complete the application.  On
  October 3, 2001, Champlain filed additional materials including a "Site
  Plan Application Form."  Champlain then made another supplemental filing
  leading up to October 8, 2001, the date the planning commission apparently
  accepted the site plan application as complete.  
   
       ¶  5.  The planning commission approved Champlain's application on
  September 30, 2002.  The planning commission evaluated the project under
  the pre-amendment regulations instead of the zoning amendments.  The
  planning commission's approval contained conditions restricting certain
  aspects of the application.  Champlain appealed several of the imposed
  conditions to the environmental court.  Though it had not appeared before
  the planning commission to dispute Champlain's permit, Vallee
  cross-appealed to the environmental court.  

       ¶  6.  Vallee moved for summary judgment in the environmental court,
  arguing that the proposed project should have been evaluated under the
  zoning amendments - which barred the proposed use - and not the
  pre-amendment zoning scheme.  See 24 V.S.A. § 4443(d) (once locality issues
  notice of first public hearing on amendments to local regulations, projects
  shall be reviewed under the proposed amendments).  Vallee claimed that
  Champlain had not filed its application in time to vest rights to review
  under the pre-amendment zoning scheme.  Champlain contested the motion by
  offering affidavits stating that its application was submitted on May 14,
  2001 before the zoning amendments' notice date.  The environmental court
  granted Vallee's motion for summary judgment holding that because
  Champlain's May 14 application was not a complete site plan application
  filed in good faith, the application was insufficient to vest any rights
  under the prior zoning laws.  Champlain appeals that decision. 

       ¶  7.  As a preliminary matter, Champlain argues that, in ruling on
  the summary judgment motion, the environmental court improperly expanded
  the scope of its inquiry beyond those issues that were raised as part of
  the planning commission's review.  Champlain contends that because
  environmental court review of planning commission decisions is appellate in
  nature, the general appellate rule of issue preservation should apply.  
   
       ¶  8.  Ironically, as Vallee points out in its brief, Champlain did
  not raise this issue with the environmental court, and the environmental
  court did not rule on it.  A review of Champlain's memorandum in opposition
  to Vallee's summary judgment motion in the environmental court does not
  reveal any reference to this issue, and none is found in the environmental
  court's decision.  Champlain has not otherwise demonstrated that its issue
  was preserved as was its burden under the rules of appellate procedure. 
  See V.R.A.P. 28(a)(4) (appellant's brief to Supreme Court shall contain the
  issues presented and shall state how the issues were preserved); see also
  Limoge v. People's Trust Co., 168 Vt. 265, 270, 719 A.2d 888, 891 (1998)
  (concluding that  plaintiff waived its claim of negligent misrepresentation
  because it was not brought before the trial court).     

       ¶  9.  As part of its argument that issue preservation at the planning
  commission should be required before review in the environmental court can
  be sought, Champlain cites In re Lorentz, 2003 VT 40, 824 A.2d 598. 
  Lorentz involved an appeal to the environmental court from a planning
  commission.  The appellant in Lorentz  argued, as Champlain does here, that
  the environmental court had exceeded its jurisdiction by ruling on issues
  that were not presented to the planning commission.  The appellant in
  Lorentz failed, however, to clearly raise its jurisdictional objections to
  the environmental court.  Id. at ¶ 5.  As a result, we declined to address
  the appellant's arguments for the first time on appeal.  Id.  The
  procedural facts in Lorentz are strikingly similar to the present case, and
  thus the decision is controlling here.  Accordingly, we will not reach this
  issue, nor will we reach Champlain's laches argument because it was also
  not presented to the environmental court.  See id.  
   
       ¶  10.  We review the decision on the motion for summary judgment
  applying the same standard as the environmental court.  See In re Jackson,
  2003 VT 45, ¶ 11, 830 A.2d 685.  We will affirm a trial court's grant of
  summary judgment only if "there are no genuine issues of material fact and
  the moving party is entitled to judgment as a matter of law." Springfield
  Hydroelectric Co. v. Copp, 172 Vt. 311, 313, 779 A.2d 67, 70 (2001);
  V.R.C.P. 56(c).

       ¶  11.    Champlain submitted its initial application for its intended
  project on May 14, 2001.  The town issued notice of a public hearing on
  proposed amendments to its zoning regulations on August 16, 2001.  Under 24
  V.S.A. § 4443(d), if a party files an application with a town after the
  town has given notice of its intent to amend its zoning laws, the town
  shall review such an application under the proposed zoning laws.  In
  Vermont, rights to review under existing regulations vest when a "proper"
  application is filed.  Smith v. Winhall Planning Comm'n, 140 Vt. 178,
  181-82, 436 A.2d 760, 761 (1981) (emphasis added).  On September 16, 2001,
  the town approved the proposed zoning amendments and set an effective date
  of October 8, 2001.  Therefore, the issue before the Court is whether
  Champlain's initial application filed on May 14, 2001 vested the right to
  review under the then existing, i.e., pre-amendment, zoning laws.  Because
  we find that Champlain's two filings were for different applications, we
  hold that its initial application could not have vested a right to
  consideration under the pre-amendment zoning regulations.

       ¶  12.  The environmental court ruled that two applications were
  filed: one on May 14 for sketch plan review and another on or about October
  3 for site plan review.   As part of its review of Colchester's overall
  planning scheme, the environmental court provided the following background:
   
    A 'sketch plan' is not provided for at all in the Town's Zoning
    Regulations or in connection with an application for a zoning
    permit.  A 'sketch plan' application is only provided for in the
    Town's Subdivision Regulations, § 201, to be submitted by a
    'subdivider of land' to the town planner prior to submitting an
    application for subdivision approval, "for the purpose of
    classifications and preliminary discussion" of the subdivision
    with the Planning Commission.  In practice in the Town of
    Colchester, the sketch plan has also been used (at least by the
    interim town planner involved in examining the present proposal)
    to make a preliminary examination of a subdivision project that
    would also have to undergo site plan approval.  

  After reviewing the Town's regulations, we conclude that the environmental
  court's assessment is accurate.  By contrast, site plan review is an
  essential part of the Town's zoning process.  Section 1803 of the Town of
  Colchester's Zoning Regulations provides that "[t]he approval of site plans
  by the Planning Commission shall be required prior to the issuance of any
  zoning or building permits for all uses in any district."  To the extent
  that a sketch plan application would be sufficient to vest rights to review
  under any existing regulations, they would be subdivision regulations, not
  zoning regulations. (FN1.)  A site plan application, however, would be a
  proper application for vesting rights to review under zoning regulations. 
  The Town zoning administrator/director of planning and zoning's September
  10, 2001 letter to Champlain's consultant reinforces this view when it
  states that "in order to preserve [Champlain's] rights under current
  zoning, you must submit a site plan application." (FN2) (Emphasis added).
      
       ¶  13.  Champlain's central argument is that its May 14 application
  was for both planning and zoning review, and thus should have sufficed to
  vest rights to review under existing zoning regulations.  It relies on a
  June 29 letter from the interim town planner in which the planner indicated
  that "the sketch plan review is a preliminary review of the project for
  both Site Plan and subdivision review."  The preceding sentences in the
  same letter emphasize that the subdivision review and site plan review for
  the separate buildings are distinct reviews.  Champlain further notes that
  the zoning administrator had commenced zoning review as early as August 3. 
  The administrator's August 3 report does in fact indicate that zoning
  review had begun, even though the same report contains the notation
  "sketch," making clear that its review had commenced based on information
  in the sketch plan - information that the same report indicates was
  insufficient in several respects.  Moreover, Champlain argues that one of
  the main functions of the sketch plan is to determine what information the
  zoning officials will need to complete a thorough site plan review.  As
  such, Champlain argues that the sketch plan application is a de facto part
  of the zoning review process and accordingly should vest rights to review
  under existing zoning laws.
   
       ¶  14.  Champlain's attempt to obscure the distinctions between a
  sketch plan application and the site plan application are unavailing.  The
  rule of Winhall is designed to secure "greater certainty in the law and its
  administration."  Winhall, 140 Vt. at 182, 436 A.2d  at 761.  Champlain
  would have us focus our inquiry on the flexible process employed by the
  Town's planning staff in this particular case and not on the uniform
  mandates of the Town's regulations.  We think the latter approach is more
  consistent with the policy underlying Winhall.  See id.  As we noted supra
  at ¶ 12, the Town's zoning regulations require a site plan review prior
  to the issuance of a zoning permit.  No matter how much actual zoning
  review the planning staff accomplishes of its own accord based on
  information contained in a sketch plan application, the fact remains that
  the filing of a site plan application is necessary to zoning review of all
  projects; the filing of a sketch plan is not.   

       ¶  15.  The sketch plan application was only required for this
  project, because, as it was initially proposed, the project called for a
  subdivision.  Champlain correctly points out that the zoning administrator
  used the information contained in the sketch plan to commence zoning review
  and to identify additional information that would be needed to complete
  zoning review.  This in no way negates the fact that the site plan
  application was still required under the Town's regulations before formal
  zoning review could take place.  As the zoning administrator's August 3
  project review sheet makes clear, the application did not contain any lot
  lines, building heights, signs, or landscaping plans.  Champlain knew or
  should have known, however, that this information was required for zoning
  review because § 1803 of the Town's zoning regulations mandate that this
  information be provided as part of the site plan review.  

       ¶  16.  Because of the serious deficiencies in Champlain's May 14
  application, we can only conclude, as the environmental court did, that it
  was a sketch plan application and not an application for site plan review
  or a zoning permit application.  This conclusion also draws upon the
  conspicuous fact that accompanying Champlain's May 14 application was $110,
  an application fee sufficient only for sketch plan application review.  The
  Town's Development Application Checklist notes that Champlain's May 14
  filing was a "sketch."  Even more compelling is the fact that Champlain's
  May 14 filing with the Town was titled, "Planning Commission Sketch Plan
  Application Form," whereas its untimely October 3 filing was titled
  "Planning Commission Site Plan Application Form" and was accompanied by the
  $172 fee required for site plan review.
   
       ¶  17.  Champlain filed two different applications: one on May 14,
  2001 and another on October 3, 2001.  Champlain's May 14 sketch plan
  application could not vest a right to consideration under the then-existing
  zoning laws for subsequent final site plan approval or a zoning permit
  application.  Rights vested under a preliminary application do not extend
  to subsequent applications of a more detailed nature.  See In re Taft
  Corners Assocs., Inc., 171 Vt. 135, 142, 758 A.2d 804, 810 (2000) (refusing
  to allow the filing of a subdivision permit application to vest the right
  of consideration under prior laws for a subsequent zoning permit
  application).  Accordingly, because of the different nature of the sketch
  plan application and the site plan application, the earlier application
  cannot vest a right to consideration under the pre-amendment zoning laws.
   
       ¶  18.  Champlain claims that summary judgment in the
  environmental court was inappropriate because there remains a genuine issue
  of material fact as to when its application was filed.  According to
  Champlain, Vallee's position was that the application was filed on October
  3, 2001, after the zoning amendment notice date, while Champlain contends
  that the application was filed on May 14, 2001.  Champlain's argument
  mistakes an issue of law for an issue of fact.  There is no dispute that
  Champlain filed an application on May 14, 2001; the dispute is over the
  legal effect of that filing.  As we have already discussed, the case turns
  on whether the application that was filed on May 14 was the proper
  application for purposes of vesting rights to review under pre-amendment
  zoning regulations.  See Winhall, 140 Vt. at 182, 436 A.2d  at 762.  In
  ruling on summary judgment, the environmental court had the May 14
  application and all the supporting documents Champlain filed along with it
  as well as all the documents Champlain subsequently filed.  With these
  documents,  no further development of the factual record was needed to
  resolve this question; thus there was no genuine issue of material fact
  remaining to render summary judgment inappropriate.  The environmental
  court made its ruling on a matter of law, and for the foregoing reasons we
  agree with its decision.  

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  In the environmental court's view of the regulations, "a 'sketch plan
  application' only triggers subdivision review, and is not even considered a
  complete application;" therefore, it would not be sufficient to vest rights
  to review under subdivision regulations.  We express no opinion as to
  whether the environmental court's interpretation is correct on this point,
  as it is unnecessary to our decision in this case.

FN2.  The letter goes on to state that to vest rights, the site plan
  application must be filed by October 1, 2001.  As the environmental court
  observes in a footnote, the Town gave Champlain erroneous advice when it
  suggested that filing of a site plan application in October would have
  vested rights.  The Town official apparently misapprehended the import of
  24 V.S.A. § 4443(d) when he suggested that the October effective date of
  the zoning amendment, and not the August notice date, was the vesting
  deadline.  Nevertheless, neither party disputes that the proper application
  had to be filed by August 16, 2001 to vest rights to review under then
  existing zoning regulations.