In re Taft Corners Associates

ENTRY_ORDER.93-581; 162 Vt. 638; 650 A.2d 520

[File 18-Oct-1994]



                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 93-581

                         MAY TERM, 1994


In re Taft Corners Associates   }            APPEALED FROM:
                                }
                                }
                                }            Chittenden Superior Court
                                }
                                }
                                }            DOCKET NO. S109692CnC

        In the above entitled cause the Clerk will enter:


    Williston Citizens for Responsible Growth (WCRG) appeals a summary
judgment ruling by the Chittenden Superior Court upholding the Williston
Planning Commission's decision approving the reconfiguration of certain lots
at the Taft Corners Industrial Park.  WCRG argues that (1) summary judgment
was improper because there were controverted material facts, (2) the court
made erroneous findings of fact, (3) the court should have required the
Planning Commission to conduct a full subdivision review, and (4) the court
erred in not making particular findings of fact.  Because we conclude that
the superior court lacked subject matter jurisdiction over the
reconfiguration decision, we do not reach appellant's claimed errors. 

    In January 1991, Williston Zoning Administrator David Spitz approved the
request of Taft Corners Associates (TCA) to reconfigure three lots of its
Taft Corners subdivision into two larger lots.  The Administrator approved
the reconfiguration as a boundary adjustment, exempting the lots from
subdivision review under  720 of the Williston Subdivision Regulations.  No
party appealed the Administrator's approval of TCA's reconfiguration. 

    TCA next sought a site plan review for the purpose of constructing a
Wal-Mart and Sam's Price Club on the new lots. The Administrator approved the
site plan at a March 1991 public hearing, rejecting WCRG's argument that the
lots required subdivision review.  WCRG appealed this decision to the Zoning
Board of Adjustment, which approved the site plan in May 1991. 

    WCRG challenged the Board of Adjustment's approval of the site plan in
superior court,  arguing that the reconfigured lots were subject to
subdivision review, and that the Board had erroneously approved the
reconfiguration as a boundary adjustment.  The superior court held in March
1992 that the new lots constituted a "re-subdivision" under the Williston
Subdivision 

 

Regulations, and sent the matter to the Planning Commission with instructions
to hold a public hearing on whether subdivision review was appropriate. 

    After a public hearing in April, the Planning Commission approved the
site plan in June 1992, deciding that subdivision review was not required. 
WCRG appealed this decision to the superior court, arguing, among other
things, that TCA's reconfiguration required subdivision review.  In November
1993, the court granted TCA's motion for summary judgment, and this appeal
followed. 

    We hold that the superior court lacked subject matter jurisdiction over
TCA's reconfiguration because no party appealed from the Administrator's
January 1991 decision that the reconfiguration was merely a boundary
adjustment. 

    Interested persons may appeal a zoning administrator's decision to the
board of adjustment within fifteen days of the decision.  24 V.S.A.  4464. 
An appeal from the zoning administrator to the board of adjustment is the
exclusive remedy for a party aggrieved by the administrator's decision.  24
V.S.A.  4472(a); see also Town of Charlotte v. Richmond 158 Vt. 354, 356,
609 A.2d 638, 639 (1992) (appeal to board of adjustment is exclusive
statutory remedy for aggrieved persons).  If a timely appeal is not taken to
the board of adjustment under  4464, the superior court is barred under 
4472(d) from asserting jurisdiction.  Town of Charlotte, 158 Vt. at 357-58,
609 A.2d  at 640; see also Boutwell v. Town of Fair Haven, 148 Vt. 8, 10, 527 A.2d 225, 226 (1987) (failure to appeal extinguishes subject matter
jurisdiction).  This is true even if the administrator's ruling is ultra
vires.  See Levy v. Town of St. Albans, 152 Vt. 139, 142, 564 A.2d 1361, 1364
(1989) ( 4472 bars collateral attack of board of adjustment decision even
if decision is ultra vires). 

    The Zoning Administrator resolved all issues regarding TCA's
reconfiguration, including the question of subdivision review, when he
approved the lots as a boundary adjustment on January 24, 1991.  That
decision became final on February 8, 1991 because no party appealed it to the
board of adjustment.  The superior court, therefore, did not have subject
matter jurisdiction over WCRG's appeals concerning the reconfiguration and
subdivision review in March 1992 and November 1993.(FN1)

    WCRG argues that TCA failed to raise lack of subject matter jurisdiction
as a defense in the proceedings below, and therefore has waived that issue on
appeal.  Subject matter jurisdiction may not be waived, Town of Charlotte,
158 Vt. at 358, 609 A.2d  at 640, and TCA appropriately raised it before this
Court. 

    Inasmuch as the court lacked subject matter jurisdiction over the
subdivision review issue, we do not reach WCRG's other claimed errors. 

 

    For the above reasons, the decision of the superior court is vacated and
the appeal is dismissed. 




                              BY THE COURT:



                              _______________________________________
                              Frederic W. Allen, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice
   Publish
                              _______________________________________
                              James L. Morse, Associate Justice
   Do Not Publish
                              _______________________________________
                              Denise R. Johnson, Associate Justice


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                            Footnotes


FN1.   The Planning Commission lacked jurisdiction over TCA's reconfiguration
 after February 8, 1991 for the same reasons.