In re St. Mary's Church Cell Tower

In re St. Mary's Church Cell Tower  (2006-029); 180 Vt. 638; 910 A.2d 925

2006 VT 103

[Filed 24-Oct-2006]


                                 ENTRY ORDER

                                 2006 VT 103

                      SUPREME COURT DOCKET NO. 2006-029

                            SEPTEMBER TERM, 2006


  In re St. Mary's Church Cell Tower  }  APPEALED FROM:
                                      }
                                      }
                                      }  Environmental Court
                                      }  
                                      }
                                      }  DOCKET NO. 140-7-05 Vtec

  Trial Judge: Merideth Wright 


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

       ¶ 1.  Verizon Wireless appeals the Environmental Court's decision to
  remand this case to the Zoning Board of Adjustment (ZBA).  The
  Environmental Court asked the ZBA to consider whether St. Mary's Church
  needs a conditional use permit before changing its parking arrangements to
  accommodate Verizon Wireless's small-scale telecommunications facility.  We
  reverse the Environmental Court's decision and dismiss the case.  

       ¶ 2.  This case arises out of a proposed project to mount wireless
  cell phone antennas in the towers of St. Mary Star of the Sea Catholic
  Church in Newport, Vermont.  From the beginning, this plan met with
  resistance from certain neighbors.  The neighbors lost the first case, in
  which they challenged the zoning permit Verizon Wireless received to
  implement the project.  In re Curtis,  2006 VT 9, 17 Vt. L. Wk. 29, 896 A.2d 742 (mem.).  The neighbors instituted this lawsuit on the premise
  that, even if Verizon Wireless had a valid zoning permit, the church, as a
  landowner, might still need a conditional use permit in order to allow
  Verizon Wireless to modify the church's parking lot. 
        
       ¶ 3.  Verizon Wireless contends that the neighbors are precluded by
  res judicata from bringing this claim because it should have been raised in
  their first appeal of the zoning permit.  The preclusion question, Verizon
  Wireless argues, is a jurisdictional one, and therefore this Court should
  review it de novo.  Town of Charlotte v. Richmond, 158 Vt. 354, 358, 609 A.2d 637, 640 (1992).  To preclude a claim from being litigated, Verizon
  Wireless must show that (1) a previous final judgment on the merits exists,
  (2) the case was between the same parties or parties in privity, and (3)
  the claim has been or could have been fully litigated in the prior
  proceeding.  Bidgood v. Town of Cavendish, 2005 VT 64, ¶ 6, 16 Vt. L.Wk.
  327, 878 A.2d 290 (mem.); see also In re Cent. Vt. Pub. Serv. Corp., 172
  Vt. 14, 39, 769 A.2d 668, 687 (2001) (differentiating between claim
  preclusion or res judicata and issue preclusion or collateral estoppel).

       ¶ 4.  The neighbors argue that this is merely a question of ordinance
  interpretation, and the Court should not disturb the Environmental Court's
  interpretation unless it was clearly erroneous, arbitrary, or capricious. 
  In re Nott, 174 Vt. 552, 553, 811 A.2d 210, 211-12 (2002) (mem.).  In
  construing a zoning ordinance, this Court uses "the same rules as in the
  construction of a statute: words are construed according to their plain and
  ordinary meaning, and the whole of the ordinance is considered in order to
  try to give effect to every part."  Id.  Before we can evaluate the
  Environmental Court's bylaw interpretation, we must determine whether this
  claim is precluded.  Because we determine that res judicata applies, we do
  not review the merits under either standard of review.

       ¶ 5.  The history of this case has been thoroughly explained both in
  our recent decision, Curtis, 2006 VT 9, ¶¶ 1, 3, and in the Environmental
  Court's decision.  Nevertheless, it is worth noting that the original
  application for this project was made jointly by Verizon Wireless and St.
  Mary's on August 12, 2003.  The application was signed by Father Leopold
  Bilodeau on behalf of the church and by the Verizon Wireless Regional
  Manager, Sandy Carter, on behalf of Verizon Wireless.  It was supplemented
  once, on October 1, 2003, and the proposal has not changed since then.  At
  the request of some neighbors who are parties to this appeal, the October
  1, 2003 supplement moved the equipment shelter from its original location
  to its present one, eliminating three to five parking spaces.  On October
  21, 2003, the Newport Planning Commission granted site plan approval,
  finding that "[t]raffic access is adequate."  Certain neighbors appealed
  the zoning permit to the Environmental Court.  Their only argument was that
  the project violated the "one principal use" requirement in the zoning
  bylaw.  City of Newport Zoning Bylaw § 308.  Verizon Wireless sought
  summary judgment, arguing that its project should not have required a site
  plan review under the bylaw.  The Environmental Court ruled that the
  project was an allowed subordinate use, and did not violate the "one
  principal use" requirement; however, it also found that a site plan review
  was necessary.  Both parties appealed.  Curtis, 2006 VT 9.  This Court
  affirmed the Environmental Court's ruling on the "one principal use" issue
  but reversed its site plan determination.  Id. ¶¶ 1, 8.  

       ¶ 6.  While the appeal was pending, the neighbors raised two other
  concerns in separate dockets, one before the Environmental Board, and the
  other in a new docket before the Environmental Court.  The first was an Act
  250 concern, which this Court has since resolved.  In re Ochs, 2006 VT 34,
  17 Vt. L. Wk. 106, 897 A.2d 550.  The second raised, for the first time,
  the issue of whether the project required a conditional use permit. 

        
       ¶ 7.  The Environmental Court consolidated both the site plan review
  and the conditional use dockets in its Decision and Order on Motions to
  Remand.  The Environmental Court classified parking at St. Mary's as
  "non-conforming."  Section 501 distinguishes structures that do not comply
  with the bylaws from uses that do not comply, and sections 402 and 403
  specify different permitting procedures for the two different types of
  nonconformity.  Nowhere in the decision did the court specify whether
  parking at St. Mary's was a nonconforming use or a noncomplying structure. 
  Instead, the Environmental Court remanded the case to the Zoning Board of
  Adjustment to determine whether a conditional use permit was necessary. 
  This appeal followed.

       ¶ 8.  Verizon Wireless contends that the Environmental Court should
  not have considered the question at all because the neighbors failed to
  raise it in their first appeal, and thus res judicata applies.  To apply
  res judicata there must be a final decision on the merits, and the
  neighbors must have had the opportunity to fully litigate the claim they
  now raise.  In this case, the Environmental Court's final judgment
  approving the zoning permit and our ruling finding no site plan review
  necessary both constitute final decisions on the merits of the permit. 
  Thus, to determine whether res judicata applies to this case, we must first
  decide whether the cause of action that the neighbors seek to assert is the
  "same cause of action" that they asserted in Curtis.  We must then decide
  whether the parties are the same or in privity to the parties in that case.

       ¶ 9.  Courts have long recognized that " '[p]ublic policy dictates
  that there be an end of litigation; that those who have contested an issue
  shall be bound by the result of the contest, and that matters once tried
  shall be considered forever settled as between the parties.' "  Federated
  Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401-02 (1981) (quoting Baldwin
  v. Traveling Men's Ass'n., 283 U.S. 522, 525 (1931)).  Although the docket
  number on this case is different, and although the caption is "In Re St.
  Mary's Church Cell Towers" instead of "In Re Curtis," we conclude that this
  is, in fact, the same cause of action as In Re Curtis.  The question here,
  as in the first case, is whether the permit applicants have complied with
  the zoning bylaw.  The facts necessary to determine this case are nearly
  identical to the facts in the first. 

       ¶ 10.  This is a bylaw compliance claim.  It deals with whether the
  alterations to the church's structure require a conditional use permit. 
  Section 605 of the bylaw requires the Administrative Officer to consider
  whether conditional use approval is necessary before issuing a zoning
  permit.  The time to raise this issue was as soon as the allegedly
  nonconforming alterations were apparent.  All the alterations at issue here
  should have been evident on October 1, 2003, when Verizon proposed the new
  position for the equipment shelter at the neighbors' request.  Because the
  neighbors asked for the relocation, they had actual notice of the change. 
  At this late stage, a site plan review has already been conducted and a
  zoning permit has already been granted and appealed.  The neighbors lost
  their chance to raise the conditional use issue when they decided not to
  raise it in the first appeal.

       ¶ 11.  Once we conclude that the cause of action is the same, we must
  examine whether the conflict arises between the same parties.  Bidgood,
  2005 VT 64, ¶ 6.  Although the neighbors argue that this case involves only
  the church's obligations under the zoning permit, and not Verizon
  Wireless's, the two have identical interests in this matter.  They have
  been represented by the same attorney throughout this process, and were
  co-applicants on the permit application. 

       ¶ 12.  For these reasons, the Environmental Court's decision remanding
  the project for a conditional use permit was in error.  Since no site plan
  review has been found necessary, and the zoning permit has already been
  granted and appealed, the appropriate course of action is for this Court to
  reverse the Environmental Court's decision and dismiss the case.  

       The Environmental Court's decision is reversed, and the case is
  dismissed.


  BY THE COURT:


  _________________________________________
  Paul L. Reiber, Chief Justice

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

  _________________________________________
  Geoffrey W. Crawford, Superior Judge,
  Specially Assigned

  __________________________________________
  Ernest W. Gibson III, Associate Justice (Ret.),
  Specially Assigned