Baker v. Town of Goshen

Annotate this Case
Baker v. Town of Goshen  (97-038); 169 Vt. 145; 730 A.2d 592

[Filed 19-Mar-1999]

       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. 97-038

J. Lee and Susan Baker and	            Supreme Court
Welland and Esther Horn
                                            On Appeal from
     v.		                            Environmental Court

Town of Goshen	                            May Term, 1998

Merideth Wright, J.

       John R. Barrera, Middlebury, for Plaintiffs-Appellants.

       F. Rendol Barlow of Langrock Sperry & Wool, Middlebury, for

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       DOOLEY, J.   This appeal is from a decision of the Vermont
  Environmental Court  granting a permit to relocate and modify a
  non-complying structure, but also ruling that two  parcels of land had
  merged for purposes of zoning regulation.  Appellants Welland and Esther 
  Horn are the former owners of all of the land in issue.  Also appealing the
  decision are J. Lee  and Susan Baker, the current owners of the smaller,
  one-acre parcel.  The larger, fourteen-acre  parcel is now owned only by J.
  Lee Baker, although both he and his wife Susan reside on that  parcel. 
  Appellants appeal only from the merger decision.  We dismiss the appeal
  because it  seeks an advisory opinion.

       In 1969, the Horns divided the land in question into a one-acre parcel
  and a fourteen-acre parcel, selling the one-acre parcel, with a cabin, to
  a third party.  The one-acre parcel is  bordered on the east (rear) and
  south by the fourteen-acre parcel.  The one-acre parcel was  conveyed back
  to the Horns in 1971.  In 1993, the Horns conveyed the fourteen-acre parcel
  to J. Lee Baker, who 


  built a house on it.  In 1996, the Horns conveyed the one-acre parcel to
  the  Bakers, as tenants by the entireties, retaining a life estate for
  Welland Horn.

       In 1971, the Town of Goshen adopted a zoning ordinance which requires
  that residential  lots be a minimum of ten acres in area in the district
  where the land lies.

       In 1996, the Bakers applied for a permit to build a new foundation on
  the one-acre lot  and to relocate the preexisting cabin on this new
  foundation.  The Town zoning ordinance  requires a front yard setback of 85
  feet and side-yard and rear-yard setbacks of 200 feet.  At its  original
  location, and considering only the one-acre parcel, the cabin complies with
  only the  front-yard setback requirement.  The relocation would move the
  cabin back and turn it  approximately 45 degrees, leaving it less
  conforming with respect to the rear-yard setback  requirement, but slightly
  more conforming with respect to the side-yard setback requirements.   The
  new location, like the original location, fully complies with only the
  front-yard setback  requirement.  If the two parcels were considered as
  one, the cabin would meet setback  requirements except with respect to the
  north side of the property.  Such consideration, however,  creates a new
  nonconformity because the zoning ordinance prohibits "more than one
  residential  building on a lot."

       The Town apparently treated the permit application as a request for a
  variance.  On May  21, 1996, the Town granted the variance, with
  conditions.  Although appellants received the  requested permit, they
  appealed to the environmental court in order to challenge two conditions: 
  (1) that the two parcels must be conveyed as a single fifteen-acre parcel
  "if and when a sale  occurs in the future;" and (2) the cabin can be used
  on a seasonal basis or as a guest house, but  not as a year-round

       The environmental court agreed that appellants should receive a permit
  to move the  cabin, but the court struck the two conditions.  It did so,
  however, on the basis that appellants  did not need a variance because the
  lots had merged and that the only remaining nonconformity  was the
  inadequate setback with respect to the north side line.  Because the
  relocation of the  cabin reduced that nonconformity, the court issued the
  permit without granting a variance.


       Appellants now appeal to this Court.  Although the environmental court
  decision gives  them the permit they requested, without the conditions to
  which they object, they ask us to  reverse the rationale of the
  environmental court decision and rule that there has been no merger  of the
  lots for purpose of the Town zoning ordinance.  The Town has not appealed
  from the  decision to strike the permit conditions and, in its brief, asks
  us to affirm the rationale of the  environmental court decision. 

       We begin with a preliminary issue.  The Town contends that we cannot
  consider the  appeal because it was filed too late.  (FN1) On December 13,
  1996, the environmental court  issued oral findings and conclusions
  granting the application as proposed without the conditions  to which
  appellants had originally objected.  On that date, the clerk of the
  environmental court  made the following docket entry: "permit granted;
  ruling on the record.  CASE CLOSED."  On  January 13, 1997, a Monday,
  appellants filed a notice of appeal in the environmental court by 
  facsimile transmission.  On January 14th, they filed with the court the
  original of the notice  together with the filing fee.  On the next day,
  they moved the environmental court for a written  decision.  The court
  granted the motion and issued the written decision on April 17, 1997.

       The Town argues that entry of judgment occurred when the clerk made
  the docket entry  memorializing the oral decision.  Because the notice of
  appeal was due to be filed within thirty  days of the date of entry of
  judgment, see V.R.A.P. 4, the Town argues that the notice was due  on
  January 12, 1997, extended to January 13th because no filing could be made
  on Sunday, see  V.R.C.P. 6(a) (excluding last day of filing period if
  occurring on Saturday, Sunday or holiday).  The Town then argues that
  appellants failed to file the requisite notice by that date because the 
  facsimile transmission does not qualify as a notice of appeal under the

       Although the parties have briefed whether a notice of appeal can be
  filed through a 


  facsimile copy, we conclude that we can resolve the timeliness issue
  without determining the  effectiveness of the facsimile.  The appeal period
  runs from the date of "entry of judgment."   See id.  The process of
  creation and entry of judgment is governed by V.R.C.P. 58:
     [U]pon a decision by the court granting or denying relief, the 
     clerk, unless the Presiding Judge otherwise orders, shall forthwith 
     prepare the judgment without awaiting any direction by the court.  
     The Presiding Judge shall promptly approve and sign the 
     judgment, and the clerk shall thereupon enter it.   A judgment is 
     effective only when entered as provided in Rule 79(a).

  V.R.C.P. 58.  Civil Rule 79(a) requires the clerk to keep a civil docket
  and to enter in it  judgments, showing the date of entry and its "nature
  and subject matter."  V.R.C.P. 79(a).  The  clerk is also required to
  record final judgments, and certain other orders, in a book for that 
  purpose as soon as possible after the rendition of the judgment or order. 
  See id. at (b). 

       The federal rule is "substantially similar" to Vermont Civil Rule 58,
  although the federal  rule explicitly requires a separate judgment
  document.  See Reporter's Notes, V.R.C.P. 58.   Federal Rule 58 is
  interpreted to require two steps: the preparation and approval of the
  separate  judgment, and entry of the judgment on the docket.  See 11 C.
  Wright, A. Miller & D. Kane,  Federal Practice and Procedure § 2785, at 23
  (2d ed. 1995).  Both steps are mandatory.  See id.  § 2785, at 25.

       We conclude that Vermont Civil Rule 58 also requires a two-step
  process.  The presiding  judge must "approve and sign the judgment,"
  although the judgment need not be one wholly  separate document, see
  Morissette v. Morissette, 143 Vt. 52, 58, 463 A.2d 1384, 1388 (1983),  and
  the clerk must enter it.  In this case, the first step was omitted. 
  Although the clerk made a  docket entry of the court's decision, the judge
  neither approved nor signed a judgment.

       The Town argues that we already decided in Alma Realty Co., Inc. v.
  Sugarbush Valley  Corp., 136 Vt. 406, 392 A.2d 379 (1978), that judgment is
  entered for purposes of appeal even  in the face of technical noncompliance
  with Rule 58.  We held in Alma Realty that a stipulation  of
  discontinuance, filed by the parties and entered by the clerk, serves as a
  final judgment  without


  any action from the judge.  Id. at 408-09, 392 A.2d  at 380.  Alma Realty is
  based on the  specific wording of V.R.C.P. 41(a)(1)(ii) (providing for
  voluntary dismissal without order of  court upon "filing of a stipulation
  of dismissal signed by all parties who have appeared in the  action") and
  never mentions the requirements of Rule 58.  We do not believe the rule in
  Alma  Realty governs this circumstance, where there is no specific rule
  providing for something other  than the acts described in Rule 58 to be
  deemed the final judgment of the court.

       The Town also notes that Rule 58 specifically contemplates situations
  in which the trial  judge will direct the clerk not to prepare a judgment. 
  See V.R.C.P. 58 (requiring clerk to  prepare judgment unless trial court
  "otherwise orders").  According to the Town, the  environmental judge
  necessarily invoked this authority when she made her final ruling from the 
  bench.  This argument confuses the decision with the judgment.  The rule
  specifically requires  action after the court renders a decision in order
  to reduce that decision to a judgment.  The fact  that a decision is oral
  in no way implies that the court has somehow decided that there should not 
  be a signed judgment.  Indeed, the purpose of the "otherwise orders"
  language in Rule 58 is not  to eliminate the requirement of a signed
  judgment in some cases but to relieve the clerk of the  responsibility for
  preparing it in appropriate circumstances.  See Reporter's Notes, V.R.C.P.
  58,  1972 Amendment ("The clerk will ordinarily prepare the form of
  judgment, but the Presiding  Judge may order otherwise at the time of
  verdict or decision if the judgment is one appropriate  for judicial
  participation or submission of a form by the attorneys.").

       Although not determinative, we note that a requirement of a written
  judgment to  commence the period of appeal from the environmental court is
  consistent with a similar  requirement with respect to decisions of zoning
  boards that are appealed to the environmental  court.  Thus, we held in In
  re White, 155 Vt. 612, 615, 587 A.2d 928, 930 (1990) that a  decision of a
  zoning board does not become final, so as to begin the appeal period, until
  it is  written.  Cf. Leo's Motors, Inc. v. Town of Manchester, 158 Vt. 561,
  563-64, 613 A.2d 196,  198-99 (1992) (deemed approval mechanism not
  triggered by inadvertent failure to mail party  written decision). 


  The instant proceeding is an example of why we should insist on a written
  judgment in a permit  case.  The only issues involved in the appeal to the
  environmental court involved permit  conditions.  Such conditions are fully
  enforceable.  See In re Robinson, 156 Vt. 199, 202, 591 A.2d 61, 62
  (1991).  It is important that they be explicit and ascertainable so that
  subsequent  purchasers and others can determine the applicable restrictions
  on the use of the land in question.  See In re Kostenblatt, 161 Vt. 292,
  298, 640 A.2d 39, 43 (1994).  Yet, the environmental  court's docket entry
  is so summary that it fails to address the permit conditions that were the 
  subject of the appeal.  Thus, persons interested in the use of this
  property can determine the  applicable usage restrictions only by ordering
  a transcript of the oral decision, a costly and  unreasonable step to
  require for gaining access to a publicly rendered decision.

       We hold that absent a specific contrary court order, V.R.C.P. 58
  requires that the court  approve and sign a written judgment order. 
  Without such an order, the docket entry of the  court's decision does not
  constitute entry of judgment and does not commence the running of the 
  appeal period.  If anything, the notice of appeal in this case was
  premature and is deemed to have  been filed on the date of entry of
  judgment.  See V.R.A.P. 4.  This appeal was brought within  the applicable
  time limit.

       Because of the alignment of the parties, however, the merits of this
  controversy raise a  different jurisdictional question.  We now turn to
  that question.

       Appellants' position is that, for zoning purposes, the one-acre parcel
  in question must be  considered in isolation from the surrounding land,
  even though the adjoining parcel is owned by  J. Lee Baker and contains the
  primary residence he shares with Susan Baker.   They rely on our  recent
  decision of Appeal of Weeks, ___ Vt. ___, 712 A.2d 907 (1998), in which we
  held that a  zoning merger does not occur when separate parcels come into
  common ownership after the  effective date of the zoning ordinance, unless
  the zoning ordinance provides to the contrary.  See  id. at ___, 712 A.2d 
  at 910-11. The Town agrees that the governing law is contained in Weeks, 

  but disagrees on with the appellants the application of that law to this
  proceeding.  (FN2)

       We stress, however, that the purpose of this proceeding is to
  determine whether  appellants are entitled to a permit to relocate their
  cabin, and whether conditions should be  attached to any permit. 
  Appellants are satisfied with the permit they received from the 
  environmental court and no longer contest any of its conditions.  Moreover,
  the legal ruling they  seek from us would undercut, not support, their
  permit because it would mean that they need a  variance that the
  environmental court did not grant them.  Although the zoning board may have 
  granted a limited variance, it did not approve the more substantial
  variance needed if the one-acre parcel is considered in isolation from the
  fourteen-acre parcel.  
       In In Re: Constitutionality of House Bill 88, 115 Vt. 524, 64 A.2d 169
  (1949), this Court  advised the Governor that a legislative enactment
  requiring the Court to render advisory opinions  on the constitutionality
  or construction of proposed legislation was itself unconstitutional.  In 
  doing so, we explained the general principle that "courts are not
  instituted to render advisory  opinions."  Id. at 529, 64 A.2d  at 172.  We
  have consistently followed the content of that  decision since that time. 
  Applying the principles of House Bill 88 to cases coming before us, we 
  summarized in Wood v. Wood, 135 Vt. 119, 121, 370 A.2d 191, 192 (1977),
  that an appellate  question "must not be premature, in that it must be a
  necessary part of the final disposition of the  case to which it pertains"
  and explained that "establishment of legal doctrine derives from the 
  decision of actual disputes, not from the giving of solicited legal advice
  in anticipation of issues."  See also Kingsbury v. Kingsbury, 137 Vt. 448,
  454, 407 A.2d 512, 516 (1979).
       We faced the situation before us in Chittenden South Education
  Association v. Hinesburg  School District, 147 Vt. 286, 514 A.2d 1065
  (1986), in which a teachers' union, as cross-appellant, argued that the
  Vermont Labor Relations Board had erred in the rationale it used to 

  reach a decision that the union supported.  We declined to reach the issue,

     Although we recognize the importance of the question posed, we 
     decline to pass on the merits of this issue because it requires this 
     Court to render an advisory opinion prohibited by the State's 
     Constitution. Our determination would not entitle the Association 
     to any further relief, nor would it change the relief afforded.  In 
     short, the case and controversy at bar has been resolved and this 
     Court will go no further in its judgment.

  Id. at 294, 514 A.2d  at 1071 (citations omitted).

       The rationale used by the environmental court to give appellants the
  relief they have  requested may have future consequences, but it is
  premature to define those consequences.  As in  Chittenden South Education
  Association, our decision would not entitle appellants to any further 
  relief or change the relief afforded.  Accordingly, we are without power to
  reach the issues  raised on appeal.

       Appeal dismissed.


				  Associate Justice


FN1.  This issue was originally raised in a motion to dismiss. 
  Justice Morse denied the motion, directing that the issue of  the
  timeliness of the notice of appeal be briefed with the merits.

FN2.The Legislature amended 24 V.S.A. § 4406, effective April 27,
  1998, to deal with the merger of preexisting small lots  for zoning
  purposes.  Neither party has addressed the relevance of this statute.