In re Appeal of Armitage

In re Appeal of Armitage (2004-454)

2006 VT 113

[Filed 09-Nov-2006]


       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.


                                 2006 VT 113

                                No. 2004-454


  In re Appeal of Armitage, et al.               Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 October Term, 2005

  Merideth Wright, J.

  Stephanie J. Kaplan, East Calais, for Appellants.

  Vincent A. Paradis and Daniel P. O'Rourke of Bergeron, Paradis &
    Fitzpatrick, LLP, Essex Junction, for Appellees.


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

        
       ¶  1.  BURGESS, J.   Interested neighbors ("neighbors") appeal an
  Environmental Court order granting Pittsford Enterprises, LLP and Joan S.
  Kelly ("applicants") a conditional use permit and site plan approval to
  construct a new post office in the Town of Pittsford.  The proposed site is
  located at the intersection of Route 7 and Plains Road.  In 2002, neighbors
  appealed the Zoning Board of Adjustment's (ZBA) grant of a conditional use
  permit to the Environmental Court.  The court reversed the ZBA and denied
  the application, without prejudice, because of erosion, traffic volume and
  traffic safety problems.  Neither side appealed.  In January 2003,
  applicants submitted a revised application which the ZBA approved.  Again,
  neighbors appealed to the Environmental Court.  After trial on the merits,
  the Environmental Court approved applicants' proposal, finding that the
  erosion and traffic issues were resolved by the new application and new
  evidence.  The court's approval was given on condition that applicants take
  additional specific steps to provide for traffic safety.  This appeal
  followed.  Neighbors argue that: (1) relitigation of traffic volume and
  safety issues at the intersection of Route 7 and Plains Road should have
  been barred by collateral estoppel; (2) the Environmental Court's findings
  of fact were not supported by the evidence, nor were the conclusions of law
  supported by the findings; and (3) the conditions imposed by the court were
  invalid.  We reverse.
   
       ¶  2.  In neighbors' first appeal to the Environmental Court, the
  court denied applicants' post office proposal "without prejudice," finding
  that the application did not meet the requirements of § 2.12.1(b) and (e)
  of the town's zoning bylaws governing approval of conditional use permits. 
  The court stated that applicants' proposal did not comply with subsection
  (b) because it did not adequately address potential erosion problems at the
  site, and did not comply with subsection (e) because it presented three
  potentially adverse effects to area traffic: vehicles exiting the project
  driveway could not safely make a left turn onto Plains Road; the additional
  traffic brought by the project turning left from Plains Road onto Route 7
  during peak conditions would deteriorate traffic movement to an
  unacceptable level; and the absence of vegetation or signs to screen the
  proposed emergency access gate to the property from Route 7 posed a traffic
  hazard.  Neighbors argue that some of the problems with the Route 7
  intersection identified in the 2002 decision were not addressed in
  applicants' subsequent application and that relitigation of the same
  problems should have been barred by collateral estoppel.  Applicants reply
  that collateral estoppel does not apply for several reasons, including that
  the Environmental Court's 2002 decision was not a final order because it
  was made "without prejudice" to their right to resubmit their application. 
  We agree with neighbors.  The revised application should not have been
  considered absent substantial modifications to the plans to address or
  alleviate the traffic-flow problems identified in the Environmental Court's
  earlier order.

       ¶  3.  We review the Environmental Court's interpretation of zoning
  ordinances and findings of fact for clear error.  In re Gaboriault, 167 Vt.
  583, 585, 704 A.2d 1163, 1166 (1997) (mem.).  Conclusions of law are
  reviewed de novo.  In re Beckstrom, 2004 VT 32, ¶ 9, 176 Vt. 622, 852 A.2d 561 (mem.). 

       ¶  4.  Collateral estoppel, or issue preclusion, "[does] not purport
  to prohibit litigation of matters that never have been argued or decided."
  18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure:
  Jurisdiction 2d § 4416, at 386 (2002).  Rather, issue preclusion generally
  bars relitigation of an issue that was already litigated and decided. 
  Trickett v. Ochs, 2003 VT 91, ¶ 10, 176 Vt. 89, 838 A.2d 66.  Issue
  preclusion applies when: (1) it is asserted against one who was a party in
  the prior action; (2) the same issue was raised in the prior action; (3)
  the issue was resolved by a final judgment on the merits in the prior
  action; (4) there was a full and fair opportunity to litigate the issue;
  and (5) its application is fair.  Id.  The doctrine generally applies to
  zoning so that "a zoning board or planning commission may not entertain a
  second application concerning the same property after a previous
  application has been denied, unless a substantial change of conditions
  ha[s] occured."  In re Carrier, 155 Vt. 152, 158, 582 A.2d 110, 113 (1990)
  (quotations omitted).  Applicants bear the burden of showing changed
  circumstances.  Id. at 158, 582 A.2d  at 114.  The changed-circumstances
  requirement is satisfied when a revised proposal addresses all concerns
  that prevented approval of the prior application.  Id. at 159, 582 A.2d  at
  114.  Despite the general rule limiting successive applications, applicants
  contend that the successive-application doctrine (FN1) does not preclude
  consideration of their second application because the Environmental Court's
  decision was not a final judgment, the issues were not the same, applying
  collateral estoppel would be unfair, and there were substantial changes in
  the second application. 

       ¶  5.  As a preliminary matter, we address applicants' argument that
  neighbors are barred from asserting preclusion because neighbors' statement
  of questions on appeal to the Environmental Court "raised the very issues
  they seek to have barred by collateral estoppel."  This argument
  misconstrues the question neighbors presented to the court: "Whether the
  applicant has made changes 'to the Plains Road/Route7 intersection (and the
  screening of the emergency access gate) sufficient to address the problems
  discussed [in the 2002 decision].' "  The question goes on to list specific
  problems identified in the 2002 decision.  Applicants maintain that the
  problems raised by neighbors in this question gave applicants the right and
  obligation to respond by presenting evidence on those problems.  We
  conclude, to the contrary, that neighbors' question did not waive
  preclusion but rather asserted it by asking whether the successive
  application was substantially changed to address the previously identified
  problems.  As discussed below, the permissible response was for applicants
  to show that the renewed application did address all of the problems. 
  Applicants were not entitled by this question to relitigate whether the
  problems, already decided, were present in the first place. 
   
       ¶  6.  We next address applicants' argument that the
  successive-application doctrine does not apply because the Environmental
  Court's 2002 decision was not a final judgment.  In support of this
  argument, applicants point to the court's denial of the conditional use
  permit "without prejudice to the Applicant's submittal to the ZBA of the
  same or a revised building design" with changes to address the court's
  stated concerns.  The test for final judgment is whether the judgment
  "makes a final disposition of the subject matter before the Court."  State
  v. CNA Ins. Cos., 172 Vt. 318, 322, 779 A.2d 662, 666 (2001) (internal
  quotations omitted).  The court's denial "without prejudice" is merely a
  recitation of the successive application doctrine articulated in
  Carrier-that applicants could reapply with a substantially altered
  application that addressed the reasons for the previous application's
  denial.  Consideration of the substantially altered successive application
  presents a new subject matter to the ZBA, and to the Environmental Court on
  appeal.  Thus, the court's denial of an application is a final disposition
  of that particular application's compliance with applicable laws and
  regulations. (FN2)  
   
       ¶  7.  Put another way, the 2002 decision was a final judgment
  because it was conclusive, not merely tentative, and was procedurally
  definite.  Scott v. City of Newport, 2004 VT 64, ¶ 12, 177 Vt. 491, 857 A.2d 317 (mem.) (citing Restatement (Second) of Judgments § 13, cmt. g
  (1982)).  The decision was conclusive and definite despite the possibility
  of future applications for the same project.  See id. (finding grant of a
  site-plan permit to be a final judgment for purposes of issue preclusion,
  though permit was never used and eventually expired).  The parties were
  given a full opportunity to litigate the issues, and all matters that
  "should or could properly [have been] settled at the time and in the
  proceeding then before the court" were so settled.  CNA Ins., 172 Vt. at
  322, 779 A.2d  at 666.   Consequently, the Environmental Court's "denial
  without prejudice" was a final judgment of that application for preclusion
  purposes and conferred no greater right to reapplication than is allowed by
  our successive-application doctrine.

       ¶  8.  Applicants argue that barring review of their second
  application would be unfair because a second application receives de novo
  review-and thus should not be viewed as relitigation of the same
  application.  As Carrier explains, however, a revised application for the
  same development is not a per se new issue for purposes of applying the
  successive application doctrine.  Rather, the applicant must show that
  there has been a substantial change in the application or the
  circumstances.  155 Vt. at 158-59, 582 A.2d  at 113.  Nor does this amount
  to unfair surprise to applicants; Carrier has been settled law for fifteen
  years.  The Environmental Court's denial of the first application "without
  prejudice" to applicants' ability to resubmit their application with
  revisions that address all identified concerns could not reasonably be
  interpreted as conveying greater rights than permitted by our established
  successive-application doctrine.
   
       ¶  9.  Finally, we consider whether modifications made to
  applicants' proposal were sufficient to overcome the successive-application
  doctrine and allow the court to rehear the case.  We encourage, but do not
  require, the trial court to make an explicit finding of changed
  circumstances before considering a second application, so long as the
  court's findings implicitly indicate that the revised proposal is
  sufficiently changed to meet all concerns that prevented prior approval. 
  Id. at 158-59, 582 A.2d  at 113.  The court's 2002 decision identified
  potential erosion problems at the site and three traffic concerns as bases
  for denying the application.  According to the court's 2004 decision, the
  revised proposal sufficiently addressed the potential erosion problems and
  two of the three traffic concerns-the addition of a vegetation screen
  across the Route 7 emergency access and a redesign of the entrance and exit
  drives to locate the project's exit onto Plains Road farther from the Route
  7 intersection to eliminate a potentially dangerous left turn onto Plains
  Road.
        
       ¶  10.  The revised proposal did not, however, make any modifications
  to address the court's expressed concern that increased traffic from Plains
  Road turning left onto Route 7 would adversely affect traffic flow on Route
  7.  The court's 2002 decision stated: 

    Without some redesign [of the intersection] to accommodate an
    increase in the volume of traffic turning left . . . during peak
    conditions, that turning movement in the intersection will
    deteriorate to an unacceptable level. . . . [T]herefore, the
    proposal can be expected to adversely affect the traffic on roads
    and highways in the vicinity.

  The revised application did not include any changes to the proposal to
  address this concern.  Rather, applicants brought forth additional evidence
  in the form of testimony from Agency of Transportation officials to
  demonstrate that traffic flow at the intersection would not be adversely
  affected.  Nothing in the record suggests that the same testimony was not
  available or the same evidence could not have been known to applicants when
  the traffic-volume issue was raised at the first hearing.  This
  relitigation of an issue with additional evidence that was previously
  available is precisely what issue preclusion is intended to prevent.  See
  Berlin Convalescent Ctr. v. Stoneman, 159 Vt. 53, 60, 615 A.2d 141, 145-46
  (1992) (describing issue preclusion as a balance between giving a litigant
  an adequate day in court and preventing repetitious litigation of what is
  essentially the same dispute).  We do not find any implicit indication in
  the Environmental Court's decision that the revised proposal met the
  concern expressed in 2002 regarding increased traffic volume.  In the
  absence of such indication, consideration of the revised application is
  foreclosed by the successive application doctrine.  In reaching this
  conclusion we do not needlessly place procedure over substance, but rather
  seek to uphold the important policy of encouraging applicants to be
  thorough in their initial applications in the interest of finality and
  judicial economy.

       ¶  11.  Having concluded that the revised application should not have
  been considered absent changes that addressed all areas in which the
  previously denied application did not comply with regulations, as opposed
  to merely offering different evidence on a matter settled by the earlier
  decision, we do not review neighbors' challenges to specific findings of
  fact and conclusions of law.  Nor do we take up the matter of the court's
  imposition of future obligations upon applicants as a condition of
  approval.  

       Reversed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Neighbors assert "issue preclusion" as the basis for denying the
  application.  We use the term "successive-application doctrine" henceforth
  because of the specific issue-preclusion rules developed for zoning
  applications.

FN2.  Applicants' citation of Zingher v. Department of Aging & Disabilities,
  163 Vt. 566, 664 A.2d 256 (1995), as an example of a similar situation in
  which a board's decision was not final, and issue preclusion was therefore
  inapplicable, is unpersuasive.  There, an administrative board denied an
  individual's request for certain equipment and training as part of a
  rehabilitation plan "at the present time" until the individual could show
  the necessity of the particular assistance required.  Id. at 571, 664 A.2d 
  at 258.  The continued review of a disabled individual's evolving needs is
  distinct from a zoning application for a design or use that either does or
  does not meet established standards.