Granger Enterprises, Ltd. v. City of Rutland

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-601

                            FEBRUARY TERM, 1991


Granger Enterprises, Ltd.         }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Rutland Superior Court
                                  }
                                  }
City of Rutland, Vermont          }
Board of Zoning Adjustment        }          DOCKET NO. S0577-88RcCa


             In the above entitled cause the Clerk will enter:


     The Rutland City Zoning Board of Adjustment (Board) appeals the
superior court's ruling that the Board's action on the variance request of
Granger Enterprises, Ltd. (Granger), was ineffective as it was taken by less
than the concurrence of a majority of the Board.  We reverse.

     It is not disputed that four members of the seven-member Board were
present at the public hearing during presentation of testimony on Granger's
variance request.  Nor is it disputed that these four members joined in the
issuance of the Board's written findings, conclusions, and decision denying
this request.  The superior court's conclusion that "only three members of
the Board who acted on the decision were entitled to do so" is premised on
the fact that one of these four members did not participate in an interim
vote by the Board denying Granger's request.  We do not find that the
member's absence from this vote renders her unable to participate in the
Board's decision.  The statute, our prior precedents interpreting the
statute, and reason all point away from according such weight to the
member's absence.

     Upon appeals to the Board concerning a decision or act taken by a
zoning administrator, the statute makes express provision for a public
hearing, 24 V.S.A. { 4467, and for a decision by the Board, including
findings of fact, rendered within forty-five days after completion of the
hearing.  24 V.S.A. {{ 4470, 4468(a).  In contrast, the statute makes no
express provision for a mandatory vote.  Our precedents have recognized
that it is the Board's written decision, not their vote, which is
determinative of an appeal.  See Nash v. Warren Zoning Board of Adjustment,
153 Vt. 108, 113, 569 A.2d 447, 451 (1989) (rejecting superior court's
holding that Board's vote at public hearing was a final decision which could
not be reopened because of the passage of time; the vote did not qualify as
a final decision as it did not include the written findings of fact
contemplated by { 4470(a)); In re Knapp, 152 Vt. 59, 65, 564 A.2d 1064, 1067
(1989) (Board's vote at public hearing was not a final decision, where Board
subsequently changed its determination upon further review of the evidence,
because { 4470(a) "clearly contemplates that the decision of the Board shall
be in writing and that no decision shall take effect until filed or until
forty-five days have elapsed").  Further, no reason has been put forward for
why the member's absence from the vote should render her unable to
participate in the Board's decision.  Granger does not explain how the
member's absence from the vote fatally interfered with her ability to
measure the written findings, conclusions, and decision against the evidence
she had heard, and her ability to express agreement with the written
findings, conclusions and decision by affixing her signature.

     Granger also argues that the variance devolved to it because the
minutes of the meeting at which the vote was held failed to contain a
recitation of factual findings, and a city attorney was directed to prepare
the Board's decision.

     First, there is no statutory requirement that the minutes must contain
a recitation of the Board's factual findings.  See 24 V.S.A. {
4462(a)(setting forth what must be included in the minutes).  Second, as
demonstrated above, Granger's focus on the meeting at which the vote was
held is misplaced.  The decision of the Board was its written findings,
conclusions, and decision.  See Nash, 153 Vt. at 113, 569 A.2d  at 451;
Knapp, 152 Vt. at 65, 564 A.2d  at 1067.  It is the findings of fact
contained in this decision which we review for sufficiency.  City of
Rutland v. McDonald's Corp., 146 Vt. 324, 329-30, 503 A.2d 1138, 1141-42
(1985).  Because we find these to be "sufficient to inform interested
persons of the reasons for the decision," id. at 330, 503 A.2d  at 1142,
Granger's attack on the factual findings fails.  Further, we do not find the
Board's decision to be defective because it was drafted by a city attorney.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice