In re Smith

In re Smith (2005-062); 179 Vt. 636; 898 A.2d 1251

2006 VT 33

[Filed 24-Apr-2006]

                                 ENTRY ORDER

                                 2006 VT 33

                      SUPREME COURT DOCKET NO. 2005-062

                             OCTOBER TERM, 2005

  In re Appeal of William Smith        }         APPEALED FROM:
                                       }
                                       }
                                       }         Environmental Court
                                       }  
                                       }
                                       }         DOCKET NO. 263-12-02 Vtec

                                                 Trial Judge: Merideth Wright

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


       ¶  1.  The Chittenden County Fish and Game Club ("Club") appeals the
  Environmental Court's decision that neighboring property owners
  ("landowners") may challenge an increase in the frequency of the Club's
  nonconforming use under the Town of Richmond Zoning Regulations.  The Club
  asserts that landowners' opportunity to challenge any expansion in use is
  foreclosed by their failure to timely appeal the town zoning
  administrator's approval of the Club's permit application for previous
  construction.  We affirm.  
 
       ¶  2.  The undisputed facts can be briefly summarized.  The Club has
  been in existence for more than seventy years, operating shooting ranges,
  fishing ponds, hiking trails, and campsites.  When the Town adopted zoning
  in 1969, the area including the Club's location was designated an
  agricultural/residential zoning district, and the Club's use of the land
  became a nonconforming use because private clubs were not allowed in the
  district and outdoor recreational facilities were allowed only if approved
  by the Richmond Development Review Board (DRB).  Since 1969, the Club made
  a number of physical improvements to the property without seeking a zoning
  permit.  In May of 2002, the Club submitted a permit application to the
  town zoning administrator for the previously-built improvements.  The
  application listed nineteen building, construction, and earthmoving
  improvements to the facility, including: replacing shelters and benches;
  adding a target berm; adding earthen berms for safety and noise reduction
  and to restrict access to the shooting area; replacing and moving the rules
  board for increased visibility; installing a chain-link fence to control
  access to the shooting range; increasing the height of target backstop
  berms; installing a gate to the pond; replacing and resurfacing certain
  bridges; improving the parking lot surface; and drilling a new well and
  enclosing it within a pump house.  The zoning administrator approved the
  permit twelve days after it was submitted, with only the following
  notation: "No new work to be completed; Brings site into conformance."  The
  zoning administrator publicly posted the permit as provided by 24 V.S.A. §
  4443(b),  and it was not appealed within the fifteen-day appeal period, as
  required by 24 V.S.A. § 4464(a). (FN1) 

       ¶  3.  On June 18, 2002, landowners sent a letter to the zoning
  administrator, challenging the Club's expansion and the increase in noise
  and activity level.  In a written response, the zoning administrator
  refused to take action on the grounds that he had granted the Club a permit
  and the permit was not appealed.  The zoning administrator also stated in
  his response that because there was no change in the posted hours of the
  shooting range, the use of the range during those hours did not constitute
  a change or an expansion of a nonconforming use.  Landowners appealed to
  the DRB, which affirmed the zoning administrator's decision.  The DRB
  acknowledged that the zoning administrator lacked authority to approve the
  permit application, but concluded that the permit approval nevertheless
  became final when it was not appealed.  Landowners then appealed to the
  Environmental Court.

       ¶  4.  After a merits hearing, the Environmental Court, relying on
  our decision in In re Jackson, 2003 VT 45, ¶ 23, 175 Vt. 304, 830 A.2d 685, explained that nonconforming uses are allowed to continue in their
  preexisting, nonconforming status without conditional use approval, but
  they remain nonconforming until or unless they obtain conditional use
  approval from the DRB.  Because the use of the land was nonconforming, no
  improvements should have been approved without review by the DRB under §
  4.7 ("Non-conforming Use") or § 5.5 ("Conditional Use Approvals") of the
  Town of Richmond Zoning Regulations.   The court concluded that the zoning
  administrator improperly authorized the improvements by its error in acting
  on the application instead of forwarding it to the DRB.  The court further
  concluded, however, that the zoning administrator's approval of the Club's
  after-the-fact permit application extended only to the as-built
  construction and structures, but did not transform the Club's use of the
  land into a conforming use for the future.  The court held that,
  notwithstanding the newly-permitted physical changes to the property, any
  increase or expansion in its actual use after 1969 would still require
  approval as a change to a nonconforming use under § 4.7, or as a
  conditional use under § 5.5, of the zoning regulations.  From the evidence
  presented, the court found that the use of the shooting range had at least
  doubled since its use in the 1970s and 1980s, and the hours and seasons of
  operation also increased.   
     
       ¶  5.  The Club raises no challenge to the Environmental Court's
  findings.  It is also undisputed that the zoning administrator lacked the
  authority to approve the permit application, that landowners failed to
  appeal the zoning administrator's permit approval within the time allotted
  by law, and that landowners are now bound by the zoning administrator's
  approval of the permit.  The Club argues on appeal that the Environmental
  Court erred by construing the unappealed zoning permit to apply solely to
  structures and not to uses, and in concluding that the Club's expansion in
  use required further review and approval from the DRB.  The Club contends
  that the principle of the exclusive remedy codified by 24 V.S.A. § 4472(d)
  compels a conclusion that the uses were already permitted by the zoning
  administrator's mistakenly-granted permit. (FN2) 

       ¶  6.  The Club relies on this Court's previous pronouncements that
  we will strictly enforce the exclusivity-of-remedy provision, "consistent
  with the evident legislative intent to require all zoning contests to go
  through the administrative review process in a timely fashion," Town of
  Charlotte v. Richmond, 158 Vt. 354, 356, 609 A.2d 638, 639 (1992) (internal
  quotations omitted), and that the policy of repose is implemented even
  where the act or decision is ultra vires,  Levy v. Town of St. Albans, 152
  Vt. 139, 143, 564 A.2d 1361, 1364 (1989).  We review the construction of a
  statute on a nondeferential and plenary basis.  In re Dept. of Bldgs. &
  Gen. Servs., 2003 VT 92, ¶ 8, 176 Vt. 41, 838 A.2d 78.  We review the
  Environmental Court's construction of local zoning ordinances to determine
  whether the court's interpretation is clearly erroneous, arbitrary, or
  capricious.  In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt.
  335, 830 A.2d 60.  
   
       ¶  7.  Notwithstanding the Club's argument that this case is simply
  an application of the exclusivity principle contained in § 4472(d), we
  conclude that the determinative question is the extent of the zoning
  administrator's decision and the interpretation of the notation: "Brings
  site into conformance."  The Club argues that the notation means that the
  zoning administrator effectively issued a permit for a use that is not
  permitted in the district, that the permit should be considered a
  mistakenly-granted conditional use permit, and that, once the permit issued
  and was not timely appealed, the Club's use of the land could no longer be
  considered nonconforming.  We disagree for the reasons that follow. 

       ¶  8.  The Club's focus on one portion of the zoning administrator's
  notation fails to take into consideration that the notation does not stand
  alone.  The full notation in the zoning administrator's permit approval is:
  "No new work to be completed; Brings site into conformance." (emphasis
  supplied).  The Club was required to obtain permit approval prior to making
  any physical changes to the property, whether or not such physical changes
  caused or coincided with a change or expansion of the actual use of land as
  a shooting range.  See Town of Richmond Zoning Regulations § 1.2 (providing
  that "[n]o 'Land Development' shall commence without the issuance of a
  Zoning Permit" and "[n]o Zoning Permit may be granted unless the proposed
  Land Development is in conformance with these Zoning Regulations"), id. §
  7.2 (defining "Land Development" to include "construction, reconstruction,
  conversion, structural alteration, relocation or enlargement of any
  building or other structure, or of any mining, excavation or landfill, and
  any change in the use of any building or other structure, or land, or
  extension of use of land").  Thus, the Club was out of conformance with
  zoning regulations simply by virtue of the fact that it made physical
  changes to the property since 1969 without first obtaining a permit.
   
       ¶  9.  The Club's application does not suggest that it sought
  approval for a change or increase in the overall intensity of the use of
  the land as a recreational club.  The space on the permit application for
  an applicant to indicate that the requested permit is for a "change in use"
  was left blank-the application requests approval only for "previous
  construction."  Moreover, the "[d]escription of activity proposed" does not
  indicate an increase in use; rather, the list of specific "additions and
  improvements," with the exception of a "small 7 yard target berm at 25 yard
  target area," largely indicates the replacement or upgrading of preexisting
  structures and the addition of certain structures and earthmoving to
  control and restrict noise and access to the shooting range.  

       ¶  10.  Neither § 4472(d), nor caselaw, on the facts of this case,
  support the notion that the zoning administrator's approval must be
  construed to be any broader than what is requested in the permit
  application.  Because the ultimate goal of zoning is to gradually eliminate
  nonconforming uses, any extension of that use is carefully limited.  In re
  Gregoire, 170 Vt. 556, 559, 742 A.2d 1232, 1236 (1999) (mem.) ("The public
  interest in the regulation and gradual elimination of nonconforming uses is
  strong . . . and zoning provisions allowing nonconforming uses should be
  strictly construed." (citation omitted)).  To attach a broader meaning to
  the permit approval than that suggested by the face of the
  improperly-granted application would run counter to the public policy
  underlying the statutory and regulatory schemes carefully designed to
  maximize compliance with zoning regulations and to minimize noncompliance
  and nonconforming uses.  See also In re Jackson, 2003 VT 45, ¶¶ 30-31
  (rejecting applicant's argument that grant of permit to modify barn, which
  was a nonconforming use due to setback of structure, made barn a permitted
  use that could be further expanded without conditional use review, because
  to hold otherwise would expand conditional use review to cover any building
  applicant could possibly build, rather than what was actually proposed).

       ¶  11.     The legislative policies of repose and administrative
  efficiency inherent in § 4472(d) are not weakened by declining to extend a
  zoning administrator's approval of an application beyond the activity
  proposed in the application.  We reject any implication that the Club could
  have reasonably relied on the zoning administrator's decision to function
  as approval for an expansion in the historical use of the facilities,
  particularly where the Club did not seek approval to increase the intensity
  of the use of the land as a shooting range on the face of its application. 
  We also find unavailing the Club's argument that limiting the permit
  approval to the physical construction  would be akin to receiving a permit
  to build a house and requiring a separate permit to live in it.  The Club
  is not prohibited from using the structures for their intended purposes;
  rather, they are limited to using the structures at their historic levels
  without a conditional use permit authorizing the expansion in use.

        
       ¶  12.  Absent any clear indication that the zoning administrator's
  approval intended to serve as a conditional use permit, which can only be
  granted by the DRB, Town of Richmond Zoning Regulations § 3.1.2, the
  Environmental Court did not err in interpreting the unappealed permit to
  grant only that which the application expressly requested-approval of
  previous construction.  Thus, under the exclusivity-of-remedy provision in
  § 4472(d), landowners are precluded from challenging the previous
  construction listed on the permit application and approved by the zoning
  administrator, but the zoning administrator's error does not transform the
  Club's operation of a shooting range from a nonconforming use as a
  recreational facility to a conforming use within this zoning district. 
  Accordingly, because the Environmental Court concluded from the evidence
  presented that the Club's use of the facilities has expanded or intensified
  from its historic levels, the Environmental Court did not err in concluding
  that the Club is required to seek approval from the DRB for that increased
  use.

       ¶  13.  Finally, the Club also claims the Environmental Court erred
  by relying on statutory provisions that were not in effect at the time, 24
  V.S.A. § 4304(13)-(16), defining nonconforming lots, structures, and uses
  to include those "improperly authorized as a result of error by the
  administrative officer."  Because we conclude, based on the law in effect
  at the time of the zoning administrator's approval, that the permit
  application extended only to the physical, structural changes to the
  property, and not to an increase in the recreational use of the property,
  we do not reach the question of whether this statutory provision was
  intended to apply retroactively.

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice
     
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice

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



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                                  Footnotes


FN1.  All statutory provisions in this decision, unless otherwise noted,
  refer to Vermont's Planning and Development Act in effect prior to the 2004
  amendments.  See generally 2003, No. 115 (Adj. Sess.) (amending and
  redesignating substantial portions of the Act).

FN2.  24 V.S.A. § 4472(d) provides that in the absence of an appeal from a
  local zoning decision, "all interested persons affected shall be bound by
  such decision or act of such officer . . . and shall not thereafter
  contest, either directly or indirectly, such decision or act . . . in any
  proceeding, including, without limitation, any proceeding brought to
  enforce this chapter."