Richardson v. City of Rutland

RICHARDSON_V_CITY_OF_RUTLAND.95-094; 164 Vt 422; 671 A.2d 1245

[Opinion Filed 03-Nov-1995]

[Motion for Reargument Denied 11-Dec-1995]


  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.


                                No. 95-094


Earl W. and Pauline L. Richardson           Supreme Court

                                            On Appeal from
     v.                                     Rutland Superior Court

City of Rutland, McDonald's Corp.           September Term, 1995
and John Kollmer


Francis B. McCaffrey, J.

       William E. Roper of Neuse, Smith, Roper & Venman, P.C., Middlebury,
  for  plaintiffs-appellants

       Henry C. Brislin, Assistant City Attorney, Rutland, for defendants-
  appellees City of Rutland and Kollmer

       Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for
  defendant-appellee McDonald's Corp.

  
  PRESENT:   Allen, C.J., Gibson, Dooley, and Johnson, JJ., and Maloney,
             Supr. J., Specially Assigned



       DOOLEY, J.   Plaintiffs Earl and Pauline Richardson appeal the Rutland
  Superior Court's dismissal of their mandamus action against the City of
  Rutland and its zoning administrator, and further appeal the terms of an
  injunction granted against McDonald's Corporation.  The dispute centers
  around a McDonald's Restaurant parking lot, part of which is located in a
  residential zone, and the denial of a variance for the lot construction in
  the residential zone.  Plaintiffs, who are neighbors, sought to have the
  offending portion of the parking lot returned to its original condition and
  were only partially successful below.  We affirm the mandamus dismissal and
  the scope of the injunction as reasonable and within the court's
  discretion.

       On December 11, 1981, McDonald's sought a zoning permit from the City
  of Rutland 

  

  to build a restaurant in a commercial zone.  It also applied for
  a variance of twenty-five feet to use the part of its lot that fell in a
  residential zone for parking.  This litigation deals with the
  twenty-five-foot residential strip.  Prior to any construction, the strip
  was a swampy wetland lying approximately five feet below the surrounding
  grade.  

       On February 17, 1982, the zoning permit was approved and the variance
  granted by the Rutland Board of Zoning Adjustment.  Plaintiffs, owners of
  land 450 feet from the McDonald's Restaurant, appealed to superior court. 
  Meanwhile, McDonald's sought and obtained a building permit and built the
  restaurant and the parking lot as proposed.  It added earth fill to the
  variance area to bring it up to the elevation of the surrounding grade and
  poured concrete over it.  It installed lights, dry well pipes for a
  stormwater drainage system, and trees and dense hedges for landscaping.

       On April 15, 1987, the superior court denied the variance, and we
  affirmed in In re McDonald's Corp., 151 Vt. 346, 560 A.2d 362 (1989). 
  McDonald's did not, however, discontinue use of the residential strip for
  parking.  On April 23, 1989, plaintiffs wrote to the Rutland Zoning
  Administrator requesting he take action to require that McDonald's restore
  the strip to its original condition.  On March 12, 1990, the zoning
  administrator sent a letter to McDonald's regarding the twenty-five-foot
  strip.  Thereafter, the local manager of the Rutland McDonald's Restaurant
  met with the zoning administrator at the site, measured the zoning
  boundary, and erected a barrier to block any further use of the parking
  area in the residential strip.  The zoning administrator approved the
  barrier as complying with Residence A zoning, although this decision was
  not communicated to plaintiffs.

       On June 8, 1990, plaintiffs filed this action seeking a writ of
  mandamus requiring the City of Rutland and the zoning administrator to
  bring suit against McDonald's for removal of the parking lot from the
  twenty-five-foot variance area.  The city filed a motion to dismiss.  On
  May 24, 1991, the court granted the motion and dismissed the mandamus
  action.

       Plaintiffs also sought an injunction requiring McDonald's to restore
  the variance area to 

  

  its original condition.  Although the court ordered injunctive relief,
  the scope was less than plaintiffs requested.  The court ordered McDonald's
  to remove the concrete and lights from the variance area, to remove or fill
  the drainage pipes, and to place topsoil or other fill over the pavement. 
  McDonald's complied with the injunction.

       Plaintiffs first argue they properly sought enforcement of a
  ministerial duty of the zoning administrator, and therefore, the dismissal
  of the mandamus action was in error.  In contrast, the City maintains that
  plaintiffs do not have a right to issuance of a writ of mandamus because
  the administrator's actions were discretionary, not ministerial.  

       Mandamus is a remedial tool which mandates the performance of a
  nondiscretionary duty.  See State v. Forte, 159 Vt. 550, 555, 624 A.2d 352,
  356 (1993).  Mandamus will not lie for the review of acts that involve the
  exercise of judgment or discretion.  See Bargman v. Brewer, 142 Vt. 367,
  369, 454 A.2d 1253, 1255 (1983); Dobbs, Remedies Sec. 2.10, at 112 (1973)
  ("[It] is used only to compel a specific kind of behavior -- compliance
  with a ministerial duty of an office.  It does not issue to compel action
  that is discretionary.").  There is, however, an exception:  "Where there
  appears, in some form, an arbitrary abuse of the power vested by law in an
  administrative officer . . . which amounts to a virtual refusal to act or
  to perform a duty imposed by law, mandamus may be resorted to in the
  absence of other adequate legal remedy." Couture v. Selectmen of Berkshire,
  121 Vt. 359, 361, 159 A.2d 78, 80 (1960); see also Roy v. Farr, 128 Vt. 30,
  34-36, 258 A.2d 799, 802-803 (1969) (applying Couture standard to refusal
  to act by local health board and health officer). 

       Recently, we applied the Couture rule to affirm the grant of a writ of
  mandamus against a zoning administrator in In re Fairchild, 159 Vt. 125,
  131, 616 A.2d 228, 231 (1992).  Plaintiffs argue that Fairchild governs
  this case and demonstrates that dismissal of the mandamus action was error. 
  Like this case, Fairchild involved a petition for mandamus to require a
  municipality to enforce its zoning ordinance against a property owner who
  the plaintiffs alleged was in violation of the zoning ordinance.

  
        
       There is, however, a significant difference between this case and
  Fairchild.  Here, although the zoning administrator was dilatory, he did
  act.  He required McDonald's to comply with the ordinance and approved a
  remedy for the past noncompliance.  The remedy, albeit unsatisfactory to
  plaintiffs, ended use of the residential strip for commercial purposes.

       In contrast, the zoning administrator in Fairchild failed to respond
  directly to plaintiffs, despite their demand for enforcement, and stated to
  others that he thought the property owners were in compliance with the
  zoning ordinance.  He was, therefore, permitting non-compliance with the
  zoning ordinance, which he had no power to do.  See 24 V.S.A. Sec. 4442(a); 
  In re Fairchild, 159 Vt. at 130, 616 A.2d  at 231 (holding that
  administrative officer has no discretion as to whether to enforce zoning
  regulations).  In the words of Couture, there was "a virtual refusal to act
  or to perform a duty imposed by law."  121 Vt. at 361, 159 A.2d  at 80.

       We find the difference to be determinative.  A zoning administrator is
  statutorily bound to enforce a municipality's zoning by-laws, 24 V.S.A. Sec.
  4445, but the nature of the remedy sought is discretionary.  Thus, an
  administrator has the discretion to initiate "any appropriate action,
  injunction or other proceeding to prevent, restrain, correct or abate" a
  violation.  See id.  Here, the zoning administrator pursued a remedy within
  his discretion, and it cannot be said that he failed to act or perform a
  duty imposed by law.  The court acted properly in dismissing the mandamus
  claim.(FN1)

       Plaintiffs' remaining claims relate to the scope of the injunction
  issued by the court.  

  

  Plaintiffs assert that they are entitled to an injunction that
  requires the variance area to be returned to its original state, without
  the fill and the drainage pipes.  The trial court declined to go that far
  because removal of the fill would necessitate construction of a seven-foot
  retaining wall to provide support for the structures that properly lie
  within the commercial zone.  The court found the cost of the wall to be
  unreasonable and that "it would be far more unsightly and undesirable than
  the continuation of the slope created by the added fill."

       We first address which of the two alternatives presented by the
  parties is the standard applicable to the injunction request.  The first
  alternative, advocated by McDonald's and employed by the trial court, gives
  discretion to the court to determine whether to issue an injunction based
  on a balancing of the equities.  Under this standard, "[i]t is the duty of
  the court of chancery to consider and weigh the relative convenience or
  inconvenience, the relative injury sought to be cured as compared with the
  hardship of injunctive relief."  Thompson v. Smith, 119 Vt. 488, 509, 129 A.2d 638, 651-52 (1937).  The second alternative, advocated by plaintiffs,
  requires the court to issue an injunction to remove noncomplying
  development unless the violation of the zoning ordinance is insubstantial
  or was done without conscious wrongdoing.  Town of Sherburne v. Carpenter,
  155 Vt. 126, 131-32, 582 A.2d 145, 149 (1990).

       We explained in Carpenter that the second alternative applies in the
  zoning context only to proceedings brought by a municipality.  Id. at 131,
  582 A.2d  at 149.  This is a case between private landowners.  Plaintiffs,
  not the City of Rutland, sought an injunction requiring McDonald's to
  remove all earth fill from the residential strip.  As a result, the
  Thompson standard applies to the trial court's actions.

       Plaintiffs make various arguments to avoid this conclusion.  They
  argue that they are acting from public motives to ensure enforcement of the
  zoning ordinance.  They further argue that McDonald's acted illegally in
  extending the parking lot into the residential zone while their variance
  was on appeal.  These factors may be relevant to how the court exercises
  its discretion, but are not determinative of the applicable standard faced
  by the trial court.  The court's 

  

  discretion is not narrowed by plaintiffs' motives.  The illegality of
  the use establishes the zoning violation, but is not determinative of the
  remedy.

       Although we have addressed the standard issue in the way presented by
  plaintiffs, we also stress that the alternative standards go primarily to
  whether an injunction should be used as a remedy and not necessarily to the
  terms of the injunction, at least where the injunction corrects the
  illegality.  Courts have "a wide range of discretion" to mold equitable
  decrees to the circumstances of the case before them.  United States v.
  Crescent Amusement Co., 323 U.S. 173, 185 (1944); see also George Basch Co.
  v. Blue Coral, Inc., 968 F.2d 1532, 1542 (2d Cir. 1992) ("contours of an
  injunction are shaped by the sound discretion of the trial judge and,
  barring an abuse of that discretion, they will not be altered on appeal"). 
  Moreover, "'injunctive relief should be no more burdensome to the
  defendants than necessary to provide complete relief to the plaintiffs.'" 
  See Madsen v. Women's Health Center Inc., 114 S. Ct. 2516, 2525 (1994)
  (quoting California v. Yamasaki, 442 U.S. 682 (1979)).  These principles
  apply in the zoning context whether or not relief is sought by a public
  enforcement agency, and they clearly apply here. 

       Finally, we conclude that the court exercised its discretion
  reasonably in fashioning the injunction in this case.  It clearly
  prohibited any use of the residential strip that was in conflict with
  zoning requirements.  It required the removal or concealment of all
  "commercial structures" in the variance area.  In doing so, the existing
  landscape was preserved, and a buffer was created between the commercial
  and residential zones.  It balanced the equitable considerations before it
  and concluded that the remedy plaintiffs sought was unnecessarily expensive
  and went beyond what was required to afford complete relief.

       We are sympathetic to plaintiffs' concerns.  For many years, they have
  been seeking compliance with the zoning ordinance, and when they finally
  prevailed in our courts, they were faced with defiance by McDonald's and
  only begrudging action by the city.  We note part of this action involved a
  claim for damages and that part has now been settled.  The damages remedy

  

  is more appropriate for the kind of claim plaintiffs now raise than
  issuance of an injunction which would render the condition of the land
  "unsightly and undesirable," as the trial court found.

       Affirmed.

                               FOR THE COURT:

                               _______________________________________
                               Associate Justice


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                               FOOTNOTES


FN1.    Defendants urge us to reach the same result on jurisdictional
  grounds.  They argue that the superior court did not have jurisdiction
  because plaintiffs did not appeal the zoning administrator's decision to
  the zoning board as required by 24 V.S.A. Sec. 4472.  See Town of Charlotte v.
  Richmond, 158 Vt. 354, 357, 609 A.2d 638, 639-640 (1992) (holding that
  defendant landowners, having failed to appeal determination of zoning
  administrator, were bound by that decision).  We have not decided whether
  an interested party, rather than the landowner, ever has a duty to appeal
  from a zoning administrator's inaction.  See In re Fairchild, 159 Vt. at
  131, 616 A.2d  at 232 (assuming, but not deciding, that interested persons
  have duty to appeal pursuant to Sec. 4472).  It would be inappropriate to
  dismiss this case for failure to pursue an administrative appeal, because
  the administrator never made a formal ascertainable decision and never
  conveyed a decision to plaintiffs, despite their requests for action.