In re Handy
Annotate this Case
In re Handy (98-015 & 98-016); 171 Vt. 336; 764 A.2d 1226
[Filed 17-Nov-2000]
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.
Nos. 98-015 and 98-016
In re Paul L Handy Supreme Court
In re Jolley Associates
On Appeal from
v. Environmental Court
Town of Shelburne September Term, 1998
Merideth Wright, J.
Joseph S. McLean and Steven F. Stitzel of Stitzel, Page & Fletcher, P.C.,
Burlington, for Town of Shelburne.
Howard J. Seaver of Greene & Seaver, Inc., Burlington, for Appellant Jolley
Associates.
Douglas J. Riley of Lisman & Lisman, Burlington, for Appellee Handy.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. In these consolidated appeals, we consider the status of
zoning permit applications filed during what we will refer to as the
"pendency period" - the period from the date that public notice is given
of proposed amended zoning bylaws and the date that the bylaws come into
effect. At issue is the meaning of 24 V.S.A. § 4443(d), (FN1) which
provides that, following public notice of a proposed zoning bylaw
amendment, a town administrator may not issue a permit
regarding that amendment during the period between notice and the effective
date of the adoption or rejection of the amendment, except with the
written consent of the town's legislative body after public notice and
hearing. In construing § 4443(d), the environmental court bifurcated the
pendency period, ruling that (1) persons filing permit applications after
public notice but before the town's adoption of amended zoning bylaws may
elect to have their applications reviewed under the old bylaws or petition
the town's legislative body to consent to review of the applications under
the amended bylaws; and (2) applications filed after the town's adoption,
but before the effective date of the adoption, of amended bylaws must be
considered under the new bylaws. We find no basis in the plain language
of the statute to support the court's construction of § 4443(d), but
conclude that the statute is unconstitutional because it gives town
selectboards unbridled discretion to decide whether to review applications
under the old or new zoning bylaws, with no standards to limit the exercise
of that discretion. Accordingly, we conclude that the permit applications
in both cases must be considered under our vested rights rule. We affirm
the court's decision in the Handy case, albeit on different grounds, and
vacate the decision in Jolley and remand for further proceedings consistent
with this decision.
I.
The relevant procedural and historical facts are, for the most part,
undisputed in both appeals. On December 3, 1996, the Town of Shelburne
published notice of a December 19 planning commission hearing to consider
certain proposed zoning bylaw amendments, including amendments that would
eliminate gas stations and fast-food restaurants as conditional uses in the
Town's
residential-commercial zone. (FN2) At the December 19 hearing, the
planning commission voted to recommend that the town selectboard adopt the
proposed amendments. On January 5, 1997, the selectboard published notice
of a January 21 public hearing to consider the proposed amendments. At
the January 21 hearing, the selectboard adopted the amended bylaws. The
Town's adoption of the bylaws became effective twenty-one days later, on
February 11. 24 V.S.A. § 4404(c) (bylaw amendment shall be effective
twenty-one days after its adoption).
With respect to the Handy case, in the summer of 1996 Paul Handy filed
applications seeking, among other things, a permit to add gasoline pumps
to a convenience store on his property in the Town's
residential-commercial zone. The Town denied the applications in August
1996 for reasons unrelated to the gasoline pumps, which were permitted as
a conditional use under the zoning bylaws in effect at the time. Handy
did not appeal the Town's decision, but instead modified his site plan and
revised the applications to respond to the concerns that had led to their
denial.
On January 13, 1997, after the Town published notice of the proposed
amended bylaws, but eight days before they were adopted, Handy submitted
his revised applications seeking conditional use and variance approval for
his proposed project. On February 10, the day before the new bylaws
became effective, the selectboard held a public hearing under § 4443(d) to
consider whether to give its written consent for the zoning administrator
to act on Handy's revised applications under the old
bylaws. Following the hearing, the selectboard issued a written decision
denying its consent for Handy to proceed under the old bylaws.
On appeal, the environmental court concluded that (1) this Court's
holding in Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761-62 (1981), entitles applicants such as Handy to have their
good-faith applications considered under the bylaws in effect at the time
that they were filed; and (2) when applications are filed prior to the
selectboard's approval of proposed amended bylaws, § 4443(d) is triggered
only if the applicants elect to request the selectboard to consider their
applications under the new bylaws. Because Handy did not request
consideration under the new bylaws, and because he filed his applications
before the selectboard approved those bylaws, the court ruled that he had
a right to have his applications considered under the old bylaws, as long
as the applications were complete and filed in good faith. The court
remanded the matter to the zoning board of adjustment (ZBA) to consider the
applications for conditional-use or variance approval under the old zoning
bylaws, and then, if necessary, to the selectboard, apparently to consider
whether the applications were complete and filed in good faith. The Town
appeals.
With respect to the Jolley case, in April 1996 Jolley Associates
(Jolley) contracted to purchase property in the Town's
residential-commercial zone, intending to construct a combination gas
station, convenience store, and fast-food restaurant. Obtaining the
necessary zoning permits was one of the contract contingencies. Under the
zoning bylaws in effect at the time, all three of Jolley's intended uses
were allowed as conditional uses in the residential-commercial zone. In
September 1996, Jolley met with town officials to discuss its proposed
project.
On February 6, 1997, sixteen days after the Town adopted the amended
bylaws, but five days
before those amendments became effective, Jolley submitted conditional-use
applications for his project under the old bylaws. Following a public
hearing pursuant to § 4443(d), the selectboard denied Jolley's request for
consent to proceed with its applications under the old bylaws. On appeal,
the environmental court concluded that the right of applicants to have
their permit applications considered under the zoning bylaws in effect at
the time the applications are filed does not extend to situations in which
the applications are filed between the adoption and the effective date of
new bylaws. According to the court, applications filed after the adoption
of amended bylaws must be considered under the new bylaws. Because Jolley
had filed its applications after the Town's adoption of the amended
bylaws, the court ruled that they must be considered under the new bylaws.
The court remanded the matter to the ZBA to consider the applications for
conditional use or variance approval, and then, if necessary, to the
selectboard for consideration under § 4443(d). Jolley appeals, and the
Town cross-appeals. (FN3)
In the Handy case, appellant Town of Shelburne argues that the
environmental court erred in ruling that applicants seeking zoning permits
after public notice but before adoption of proposed amended bylaws may
elect to seek the consent of a town's legislative body under § 4443(d). In
the Jolley case, appellant Jolley argues that the plain language of §
4443(d) does not support the environmental court's distinct treatment of
applications filed between public notice and adoption of amended bylaws,
and those filed between the adoption and effective date of amended bylaws.
According to Jolley, either its applications should be considered under the
old bylaws based on the environmental court's reasoning in the Handy case,
or the environmental court should consider, upon de novo review, whether
the circumstances and equities surrounding its applications require review
of the applications under the old bylaws. As appellee and cross-appellant
in the Jolley case, the Town contends that any review of the selectboard's
decision under § 4443(d) should be on the record, giving deference to the
selectboard's broad discretion, and further that the record before this
Court supports the selectboard's decision. Both Jolley and the Town agree
that the environmental court erred in concluding that applicants must
submit their conditional-use applications to the ZBA before seeking the
selectboard's consent to proceed under the old bylaws pursuant to §
4443(d).
II.
We first consider the environmental court's construction of § 4443(d).
The statute provides as follows:
If a public notice (FN4) is issued under this chapter with respect
to the adoption or amendment of a bylaw, or an amendment to an
ordinance adopted under prior enabling laws, the administrative
officer shall not issue any permit under section (a)(1) of this
section, if the permit is with regard to the bylaw, or amendment
to a bylaw or ordinance, for the period commencing upon the date
of that public notice and ending upon the effective date of the
adoption or rejection of the bylaw or amendment, except with the
written consent of the legislative body of the municipality given
after public hearing upon public notice.
24 V.S.A. § 4443(d). We find nothing in the plain language of § 4443(d) to
support either the
environmental court's distinct treatment of permit applications filed
before or after the adoption of amended bylaws, or its conclusion that
persons filing applications before the adoption of amended bylaws may
elect to request a town's legislative body to review applications under the
amended bylaws.
In construing a statute to determine the Legislature's intent, our
first step is to examine the language of the statute itself. Town of
Hinesburg v. Dunkling, 167 Vt. 514, 525, 711 A.2d 1163, 1169 (1998). We
presume that the Legislature intended the plain, ordinary meaning of the
language, and if the meaning of that language is plain on its face, we
normally ascertain legislative intent solely from the statutory language.
Id. "It is inappropriate to read into a statute something which is not
there unless it is necessary in order to make the statute effective."
State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996); accord In re
Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998) (there is no need to
look beyond plain language of statute if it resolves legal dispute without
doing violence to legislative scheme).
Here, the plain meaning of § 4443(d) is that a town administrator may
not issue a zoning permit during the period between public notice and the
effective date of the adoption or rejection of proposed amended bylaws if
the permit is "with regard to" the proposed bylaws, except with the
written consent of the town's legislative body following public notice and
hearing. We find unavailing Handy's argument that the term "with regard
to" refers to permit applications that could be granted only under the
amended bylaws. Rather than read an unnecessary limitation into the
statutory language, see In re Graziani, 156 Vt. 278, 282, 591 A.2d 91, 94
(1991) ("we ordinarily do not assume that words are used in a more limited
sense than their plain meaning"), we assume that the undefined term
retains its plain and commonly accepted meaning. Donley v. Donley, 165 Vt.
619, 620, 686 A.2d 943, 945 (1996) (mem.). The ordinary, commonly accepted
meaning of the term "with regard to" is not limited in the way suggested
by Handy. Webster's New Int'l Dictionary (2d ed. 1961) (defining "with
regard to" as "with respect to; relating to; concerning; as to"); see also
Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., 843 F. Supp. 1379, 1388
(D. Nev. 1994) (defining "with respect to" as "with reference to, relating
to, or pertaining to"); Smith v. Matthews, 611 So. 2d 1377, 1380 (La.
1993) (same).
Moreover, the prohibitory, rather than permissive, language of §
4443(d) belies the environmental court's conclusion that the statute
allows persons filing applications before adoption of amended bylaws to
elect whether to have a town's legislative body review the applications
under the amended bylaws. If the Legislature had intended to allow
applicants to elect review under pending amended bylaws, such an election
would undoubtedly have been expressed in permissive language. Plainly,
the prohibitory language in the statute is aimed at limiting the issuance
of permits under bylaws in the process of being amended, rather than
allowing a new category of permits in advance of the effective date of
proposed bylaws that might authorize them.
Apparently, the environmental court felt compelled, under the
reasoning in Smith v. Winhall Planning Comm'n, to bifurcate the pendency
period delineated in § 4443(d) and create an election for those applicants
filing before adoption (or rejection) of proposed amended bylaws. Although
Smith may prove central to the resolution of these disputes, as addressed
at the end of this opinion, it does not control the construction of the
statute. Smith establishes our vested rights rule in the absence of a
controlling statute. In re McCormick Management Co., 149 Vt. 585, 588,
589-90, 547 A.2d 1319, 1321, 1322-23 (1988) (where "the legislature has
dictated how th[e] policy considerations should apply," the Smith rule
does not control). Here, § 4443(d) is a controlling
statute.
We recognize that the environmental court concluded that § 4443(d)
overlapped with the vested rights holding of Smith, and it could implement
both through its construction of § 4443(d). We conclude, however, that
its construction of § 4443(d) is at variance with both the letter of the
statute and the policy behind it. The obvious intent behind § 4443(d) is
to create a "moratorium" on the issuance of permits for proposed projects
whose status may be affected by pending amendments to zoning bylaws. Such
a moratorium period assures that persons cannot compel towns to grant
permit applications that comply with current zoning bylaws but are
repugnant to pending bylaw amendments. Under the environmental court
holding, there is no moratorium.
III.
Our rejection of the environmental court's construction of § 4443(d)
does not necessarily mean that we must reverse the court's decisions. We
will not reverse a lower court's decision "if the record before us
discloses any legal ground which would justify the result," Sexton v.
Greer, 135 Vt. 343, 345, 376 A.2d 750, 751 (1977), "whether briefed or
not," Butler v. Milton Cooperative Dairy Corp., 112 Vt. 517, 518, 28 A.2d 395, 396 (1942). We have applied this principle on numerous occasions
over the years, and yet have never suggested, as the dissent does here,
post, at 9, that an alternative affirmance rationale can be used only in
the case of glaring error or exceptional circumstances when constitutional
principles are involved. There is no heightened standard by which we
apply unraised legal theories to affirm lower court decisions made on other
grounds, regardless of whether those theories are constitutionally based.
Nor is there anything in our precedents to suggest that an alternative
ground for affirmance cannot be our determination that a statute is
unconstitutional in the context of the case before us.
The dissent suggests that V.R.A.P. 44 bars such consideration because no
party has notified the clerk of this Court to give the Attorney General an
opportunity to intervene and defend the constitutionality of the statute.
Like the federal model on which V.R.A.P. 44 is based, see 28 U.S.C. §
2403; Fed. R. App. P. 44, our self-imposed rule is not jurisdictional so as
to prevent the adjudication of a constitutional issue in the absence of
official notice. Tonya K. v. Board of Educ. of Chicago, 847 F.2d 1243,
1247 (7th Cir. 1988). Unlike the federal model, which requires
notification whenever the constitutionality of a statute is "drawn in
question," 28 U.S.C. § 2403, our rule applies only when a party raises the
constitutional challenge. V.R.A.P. 44.
In any event, we have carefully considered whether notification would
perform a useful purpose or change the outcome, and have decided that it
would do neither. Whenever we adopt a rationale for our decision
different from that employed by the trial court and directly addressed by
the parties, we take on the responsibility to fully research and explore
our alternative. We have done so in this case.
As the above discussion suggests, we conclude there is an alternative
ground on which to affirm the Handy case. This alternative ground was
foreshadowed by Jolley's argument that § 4443(d) may not be construed to
give town selectboards unfettered discretion to grant or deny review of
permit applications under current rather than proposed zoning bylaws. We
would agree with that argument if we could find any way in the statutory
language to limit that discretion. We conclude, however, that the statute
can be construed only to give selectboards unfettered discretion to grant
or deny permission to apply existing bylaw provisions, without regard to
any proposed amendments. Thus, we do not agree with the dissent that we
can create the necessary standards that would contain discretion, and
especially we do not agree that we can create them after the fact. For
this reason, as
more fully set out infra, we conclude that § 4443(d) is unconstitutional
because it is not limited by standards or guidelines.
As explained more fully in the discussion to follow, our alternative
decision will reach exactly the outcome the environmental court reached in
Handy - that is, that § 4443(d) is not implicated in the decision on
Handy's permit application. Our duty to affirm lower court decisions on
any legal theory would not require us to reach the constitutional point in
the Jolley case, but we do so as a matter of fairness, given that we are
reaching the issue in its companion case.
We now turn to the merits of the constitutionality of § 4443(d). In
Town of Westford v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973),
we announced the requirement of deliberative standards for acting on
zoning applications. At the time, the Westford zoning ordinance denied
permission for any business, commercial, industrial or agricultural uses
unless all adjoining landowners and long-term lessees consented to the
use. As a safety valve, however, it authorized the zoning board to allow
special exceptions after considering promotion of the public health,
safety, convenience, and welfare of the inhabitants, encouraging the most
appropriate use of land and protecting and preserving property value.
Appellants, who wanted to use their barn for barn dances, attacked the
ordinance as providing an insufficient standard for the exercise of the
board's discretion and for delegating power, without standards, to
neighbors.
This Court upheld the challenge to the ordinance, concluding that the
special exception provision failed "to prescribe appropriate conditions
and safeguards" and delegated authority to adjacent property owners "with
. . . no standards to govern its use." Id. at 125-26, 300 A.2d at 527.
We described the reasons for requiring standards:
When the Board of Adjustment exercises this discretion, guiding
standards assure all parties concerned it has been exercised in a
proper manner. When no such guiding standards are spelled out by
the legislative body, the door is opened to the exercise of this
discretion in an arbitrary or discriminatory fashion. As a
consequence of a failure of a legislative body to spell out
guiding standards, the applicant for a permit is left uncertain
as to what factors are to be considered by the Board of
Adjustment. . . . On one hand the standards governing the
delegation of such authority should be general enough to avoid
inflexible results, yet on the other hand they should not leave
the door open to unbridled discrimination.
Id. at 124-25, 300 A.2d at 526.
Although Kilburn is grounded in the then-existing enabling statute,
rather than the constitution, it relied largely on two constitutional
decisions. Waterville Hotel Corp. v. Board of Zoning Appeals, 241 A.2d 50
(Me. 1968), the chief case relied upon in Kilburn, held that where a
zoning ordinance attempts to authorize municipal officials to act on permit
requests "without the guidance of any standards, equal protection is
denied the citizens." Id. at 52; accord State ex rel. Humble Oil &
Refining Co. v. Wahner, 130 N.W.2d 304, 309 (Wis. 1964) (ordinance that
gives power to board to deny permit for gas station without adequate
standards is unconstitutional). Thus, it expresses both the statutory and
constitutional rule. See Powers v. Common Council of Danbury, 222 A.2d 337, 338 (Conn. 1966) (although requirement of standards is statutory, "it
should also be noted that such a requirement is a fundamental aspect of
constitutional law"). Recently, in In re Miserocchi, __ Vt. __, 749 A.2d 607 (2000), we relied upon Kilburn in holding that "a decision arrived at
without reference to any standards or principles is arbitrary and
capricious; such ad hoc decision-making denies the applicant due process
of law." Id. at __, 749 A.2d at 611 (citation omitted).
There are actually three overlapping theories under which a delegation
of standardless zoning
approval power is found unconstitutional: (1) a delegation of legislative
power without adequate standards violates the separation of powers
required by the state constitution; (2) the power to grant or refuse
zoning permits without standards denies applicants equal protection of the
laws; and (3) administration of zoning without standards denies landowners
due process of law because it does not give them notice of what land uses
are acceptable. O. Delogu & S. Spokes, The Long-Standing Requirement that
Delegations of Land Use Control Power Contain "Meaningful" Standards to
Restrain and Guide Decision-Makers Should Not Be Weakened, 48 Me. L. Rev.
49, 54-57 (1996).
The first rationale dominates and is accepted in virtually every state
jurisdiction. See 3 K. Young, Anderson's American Law of Zoning § 21.09
(4th ed. 1996); see also Vincent v. Vermont State Retirement Bd., 148 Vt.
531, 535, 536 A.2d 925, 928 (1987) (explaining application of delegation
doctrine in Vermont). (FN5) As explained by the Maryland Court of Appeals:
When legislative power is delegated to administrative officials it
is constitutionally required that adequate guides and standards
be established by the delegating legislative body so that the
administrative officials, appointed by the executive and not
elected by the people, will not legislate, but will find and
apply facts in a particular case in accordance with the policy
established by the legislative body.
Gino's of Maryland, Inc. v. City of Baltimore, 244 A.2d 218, 229 (Md. 1968)
(emphasis omitted). It makes no difference that the delegation in this
case is to a body that also exercises legislative power. Young, supra §
21.10 at 721-22. Even if separation of powers could be applied to town
governance, the selectboard here was exercising administrative power by
establishing the proper zoning regime for a particular use on a particular
piece of property. See Powers, 222 A.2d at 338.
The latter two rationales are most important in administrative
adjudication. See S. Koslow, Standardless Administrative Adjudication, 22
Admin. L. Rev. 407, 422-28 (1970). The main concern of the second
rationale is consistent decisions. Waterville Hotel, the Maine case we
relied upon in Kilburn, relied in turn on Osius v. City of St. Clair
Shores, 75 N.W.2d 25 (Mich. 1956), which held:
Without definite standards an ordinance becomes an open door
to favoritism and discrimination, a ready tool for the suppression
of competition through the grant of authority to one and the
withholding from another. . . . A zoning ordinance cannot permit
administrative officers or boards to pick and chose the recipients
of their favors.
Id. at 28. As we said in Kilburn, the absence of standards results in the
exercise of discretion in a discriminatory fashion. Kilburn, 131 Vt. at
124, 300 A.2d at 526.
While excessive discretion might lead to favoritism and
discrimination, it is not true, as the dissent suggests, post, at 7, that
a vague standard examining whether favoritism or discrimination exists
will be effective in controlling discretion. It is unlikely, given the
limited record available by hindsight review under § 4443(d), that a court
would be able to determine whether favoritism or discrimination had been
involved in a specific selectboard's decision, particularly given the
infrequent use of the statute in Vermont towns. Judicial review would be
illusory under the dissent's
proposed standards. In fact, consistency would be illusory without
statewide standards in this context. Given the infrequent review under §
4443(d), no "common law" of selectboard review could develop. It is
unlikely that any town would be able to adopt consistent standards, in
accordance with the dissent's suggestion.
This Court has already accepted the third rationale, which is
concerned with assuring that the landowner be given fair notice of what it
can and cannot do with the land. Miserocchi, __ Vt. at __, 749 A.2d at
611. The point is that zoning permit applicants are entitled to know:
"What facts must I present to gain the Board's approval?" Stucki v.
Plavin, 291 A.2d 508, 511 (Me. 1972); see also Wakelin v. Town of
Yarmouth, 523 A.2d 575, 577 (Me. 1987) (landowner must be able to discern
what use can be made of the land); Hardin County. v. Jost, 897 S.W.2d 592,
595 (Ky. Ct. App. 1995) (same).
A detailed examination of the record in the Handy case, the only case
for which we have a complete record, (FN6) indicates that the absence of
standards seriously prejudiced the applicant in presenting any kind of
case to the selectboard. The action on Handy's request for selectboard
approval to proceed under the old bylaws began with a public hearing. The
notice of the hearing provided no specification of how the selectboard
would approach the issue before it, stating only that the board would
consider Handy's request for a multi-use facility that included a gas
station. At the commencement of the hearing, the selectboard chair
announced the issue as whether the proposal "fit into the regulations that
were passed by the selectboard on January 21." Because the January
21 amendment prohibited the exact use proposed, this was tantamount to a
pre-hearing announcement that Handy could not prevail. Another selectman
stated that precise position, noting that, based on a legal opinion of
town counsel, "[t]here is only one choice and that is to deny."
Handy's representative made arguments that the equities, (FN7)
particularly the fact that the gas-station use had been presented prior to
the warning of the amendment, warranted the granting of permission to
proceed under the old bylaws, but the selectboard denied the request
because it would "result in the knowing creation of a non-conforming use,
in contravention of both general principles of zoning law and the clear
intent of the recent amendments." This was the same position taken by the
chair at the beginning of the hearing. Although the selectboard also
indicated that it was unpersuaded by Handy's equitable arguments, it never
took the position that equitable considerations could ever require it to
grant permission to proceed under the old bylaws. Thus, the selectboard
never committed itself to be bound by any standards either in the Handy
case or any future case.
We recognize that a standard sufficient to save the statute can be
general, and can be derived from historical usage, see Kent v. Dulles, 357 U.S. 116, 127-28 (1958), or other parts of the statutory scheme, see
Vincent, 148 Vt. at 535-36, 536 A.2d at 929; State v. Chambers, 144 Vt.
234, 239, 477 A.2d 110, 113 (1984). But, here, the specific statute
involved, 24 V.S.A. § 4443, provides absolutely
no standard or guidance. To the contrary, on its face, it provides
unlimited discretion for a selectboard to grant or deny permission for a
zoning applicant to proceed under the unamended ordinance. There is no
historical usage. If we look at the zoning statutes overall, we find
general and inclusive policy statements that do not help provide limits
for administration of § 4443(d). Id. § 4302 (purpose and goals of
zoning).
The Town suggests, and the dissent agrees, post, at 6, that we can
find a standard in the Legislature's authorization that towns may
"prohibit expansion and undue perpetuation of nonconforming uses." 24
V.S.A. § 4408(b). We agree that nonconforming use policy should be
relevant to a selectboard's decision, but its effect in the Handy case was
to eliminate the exercise of discretion entirely. If the Legislature
believed that avoidance of nonconforming uses should be the controlling
policy in all instances, it could have simply made the effective date of
any zoning amendment retroactive to the date it was first warned. Perhaps
it did not do so because the perpetuation policy is not itself absolute;
it prohibits only "undue" perpetuation.
We also recognize that the Legislature intended to give municipalities
flexibility in dealing with development proposals at variance with new
proposed zoning rules. But a grant of flexibility to the municipality is
constitutional only if it is accompanied by some ability of landowners to
predict how discretion will be exercised and to develop proposed land uses
accordingly. Flexibility cannot be a synonym for ad-hoc decision making
that is essentially arbitrary. We cannot ignore that in a small town
environment, the people involved, and affected by, the decision-making
process have frequently had extensive interaction with each other, and the
use of flexibility may reflect that interaction rather than neutral,
predictable, and universal administrative standards.
Nor can we resolve the deficiency in the statute by announcing that
the selectboard does not
have unfettered discretion and creating a "reasonable basis" review
standard. Post, at 7-8. This course of action would offend all three of
the reasons why a standardless delegation is unconstitutional. As
demonstrated by what transpired in the instant cases, it would most offend
the requirement that the landowner be given prior notice of what the rules
are, but it would also fail to ensure consistent decision making.
Finally, we emphasize two points about the impact of today's decision
and its effect on the decisions of the environmental court, particularly
in Handy. There is no constitutional impediment to the Legislature
requiring special selectboard review of development proposals that are
filed after a zoning amendment is warned and are affected by the warned
amendment, as long as the review requirement contains appropriate
standards to govern the selectboard determination. Such a requirement
serves an important public interest: to prevent a change in land use policy
from being undermined by last-minute development which is inconsistent
with the new policy. As noted below, our vested rights jurisprudence
recognizes this policy. Indeed, if the standards urged by the dissent
were added to the statute, the constitutional defect would be cured.
The second point is about the effect of this decision. As the
environmental court explained, the decision that Handy does not have to go
through selectboard review, and our similar ruling for Jolley, does not
end the question of which version of the zoning ordinance applies. Our
vested rights jurisprudence, first announced in Smith v. Winhall Planning
Comm'n, 140 Vt. at 181-82, 436 A.2d at 761-62, normally vests a right in
the developer to develop under the zoning ordinance in effect at the time
of application. In adopting this minority rule, we explained that it
particularly fit a situation "where no amendment is pending at the time of
application," id. at 182, 436 A.2d at 761, and that under the rule, the
zoning proceedings must be "validly brought and pursued in good faith,"
id., 436 A.2d at 762 (quoting In re Preseault, 132 Vt. 471, 474, 321 A.2d 65, 66 (1974)). In fact, jurisdictions keying vested rights to the date
of application generally have an exception for cases where a zoning change
is pending on that date. 4 E. Ziegler, Rathkopf's The Law of Zoning and
Planning § 50.04[1][b], at 50-20 (1999) ("Probably, the most significant
limitation on the [minority] rule is where a zoning change is pending at
the time of an application"). Thus, even though zoning amendments are
effective on the date of adoption, or twenty-one days later, 24 V.S.A. §
4404, a developer may not have a vested right in an application filed
while a proposed amendment is pending.
Contrary to the argument of the dissent, the "good faith" standard is
specific and ascertainable, having been adopted and described in numerous
decisions from other states. See, e.g., Stowe v. Burke, 122 S.E.2d 374,
379-80 (N.C. 1961); Penn Township v. Yecko Bros., 217 A.2d 171, 173 (Pa.
1966); see generally City of Jackson v. Lakeland Lounge, 800 F. Supp. 455,
461-62 (S.D. Miss. 1992) (collecting cases); G. Hanes & J. Minchew, On
Vested Rights to Land Use and Development, 46 Wash. & Lee L. Rev. 373,
398-400 (1989). Moreover, it is a rule of law to be applied according to
its terms and not a broad grant of discretion to a decision maker to act
within wide boundaries or no boundaries at all.
We cannot determine on this record whether Handy's application was
validly brought and pursued in good faith. Although the environmental
court could make that determination in the first instance, we agree with
it that the better procedure is that the zoning board make that
determination first with review by the environmental court. We affirm
that holding.
Similarly, because of the very limited factual development in the
environmental court, we also cannot assess the Jolley application against
this standard. We note only that because Jolley's
application came later in the process, its burden to show that it did not
engage in a race to put in some development proposal before the ordinance
became effective is much higher. See Yecko Bros., 217 A.2d at 173
(landowner must show it did not race to get the permit before a change was
made in the zoning ordinance). (FN8)
The environmental court's November 14, 1997 decision with respect to
the Handy applications is affirmed. The environmental court's November
14, 1997 decision with respect to the Jolley applications is vacated. The
cases are remanded for further proceedings consistent with this opinion.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Formerly 24 V.S.A. § 4443(c), the subsection was redesignated as §
4443(d) effective July 1, 1998, when another subsection was added to §
4443. 1997, No. 125 (Adj. Sess.), § 3.
FN2. There appears to be an inconsistency between the undisputed statement
of facts contained in the environmental court's decision in the Jolley
case - which indicates that the amendments proposed eliminating gas
stations and fast-food restaurants as permitted uses in the
residential-commercial zone - and the selectboard's decision in the Jolley
case - which indicates that the amendments proposed eliminating gas
stations as a use in the residential-commercial zone and reclassifying
fast-food restaurants as a conditional use in that zone. The parties
neither challenge the environmental court's finding nor mention the
apparent discrepancy, which is not significant to our resolution of the
cases before us.
FN3. Neither Handy nor Jolley appealed from a final judgment. See In re
Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.).
Nevertheless, we exercised our discretion under V.R.A.P. 2 to consider
both appeals, stating that the criteria contained in V.R.A.P. 5(b) had
been met, and that resolution of the legal issues raised in the appeals did
not require further factual development.
FN4. Section 4443(d) does not specify whether the "public notice" referred
to is the public hearing notice required of the planning commission by 24
V.S.A. § 4403(d) or the public hearing notice required of the selectboard
by 24 V.S.A. § 4404(a). Because it is undisputed that both Handy and
Jolley submitted their applications after both public hearing notices, we
need not decide the issue at this time. See Preseault v. Wheel, 132 Vt.
247, 250, 315 A.2d 244, 246 (1974) (discussing but not resolving issue).
FN5. The delegation doctrine has had a more checkered history at the
federal level. At one point, Professor Davis described the doctrine as
"almost a complete failure." K. Davis, A New Approach to Delegation, 36
U. Chi. L. Rev. 713, 713 (1969). It has, however, been featured in some
more recent opinions of the Supreme Court, and some scholars have called
for greater reliance upon it. See, e.g., R. Pierce, The Role of
Constitutional and Political Theory in Administrative Law, 64 Tex. L. Rev.
469, 470-72 (1985). Despite the controversy over the doctrine, a central
focus of federal administrative law has been on managing and controlling
agency discretion. See generally R. Stewart, The Reformation of American
Administrative Law, 88 Harv. L. Rev. 1669 (1975). Moreover, the
delegation doctrine has remained alive at the state level despite the
federal controversy. See G. Greco, Standards or Safeguards: A Survey of
the Delegation Doctrine in the States, 8 Admin. L.J. Am. U. 567, 580-603
(1994).
FN6. The record in Jolley is incomplete because the parties put aside a
discovery dispute to resolve the issue of the proper construction of §
4443(d), and the case never reached the point where the environmental
court could issue findings of fact. For example, unlike in Handy, the
record does not contain the minutes of Jolley's selectboard hearing.
FN7. There is absolutely no support in the record for the dissent's
statement that "Jolley and Handy knew what factors would be relevant to
the Town's decision under § 4443(d)." Post at 4. Apparently, the dissent
is relying on the fact that the selectboard appeared to deal with the
arguments of Jolley and Handy, rather than labeling them as irrelevant.
In taking this approach, however, the selectboard committed itself to no
standards, as it would have had it labeled arguments as relevant or
irrelevant. Rather than supporting the dissent's position, the Town's
actions are inconsistent with that position. If the issue were to arise
again in a case where the applicant had stronger equities, the selectboard
would be free to decide that such equities were irrelevant and the only
question would be whether the proposed use was not inconsistent with the
policy behind the zoning amendment, even if inconsistent with its letter.
FN8. Presaging our reversal of the environmental court's interpretation of
§ 4443(d), the parties dispute whether the court's review of a town's
decision under the statute is de novo or in the nature of ordinary
appellate review. Further, both Jolley and the Town take exception to the
environmental court's determination that conditional-use applications must
be considered by the zoning board of adjustment before the selectboard's
review under § 4443(d). We need not decide these issues because of our
conclusion that § 4443(d) is unconstitutional.
------------------------------------------------------------------------------
Dissenting
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.
Nos. 98-015 and 98-016
In re Paul L. Handy Supreme Court
In re Jolley Associates
On Appeal from
v. Environmental Court
Town of Shelburne September Term, 1998
Merideth Wright, J.
Joseph S. McLean and Steve F. Stitzel of Stitzel, Page & Fletcher, P.C.,
Burlington, for Town of Shelburne.
Howard J. Seaver of Greene & Seaver, Inc., Burlington, for Appellant Jolley
Associates.
Douglas J. Riley of Lisman & Lisman, Burlington, for Appellee Handy.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J., dissenting. Today, the majority strikes down as
unconstitutional a legislative act that significantly affects public
interest, even though none of the parties in either of the consolidated
appeals has ever challenged the constitutionality of the statute at any
point during the proceedings, including here on appeal. Thus, there is no
lower court ruling on the constitutional question raised sua sponte by the
majority. Nor is there any briefing on the issue. Nor was the Attorney
General ever warned of any potential constitutional infirmity to the
statute or given an opportunity to respond to any such perceived
infirmity, as required by our rules. V.R.A.P. 44 (party questioning
constitutionality of legislative act in proceeding before Supreme Court in
which state agency is not party must give immediate notice in writing to
Court of existence of constitutional challenge, whereupon, clerk of Court
"shall . . . certify such fact to the Attorney General, who shall be
permitted to intervene for argument on the question of constitutionality");
cf. Fed. R. App. P. 44 (same); 28 U.S.C. § 2403 (in federal court
proceeding in which constitutionality of federal act or state statute is
challenged, court shall certify that fact to Attorney General of United
States if federal
act is being challenged or to state Attorney General if state statute is
being challenged, and shall allow United States or state to intervene with
all rights of party). (FN1)
Notwithstanding the lack of argument concerning the validity of the
statute, the majority strikes down § 4443(d) based on a doctrine that,
even the majority concedes, has been applied inconsistently and has been
described by the leading legal scholar on administrative law as "'almost a
complete failure.'" Ante, at 13, n.5 (quoting K. Davis, A New Approach to
Delegation, 36 U. Chi. L. Rev. 713, 713 (1969)). The majority justifies
its decision to strike down § 4443(d) by stretching beyond the breaking
point the maxim of appellate review that this Court "may affirm a correct
judgment even though the grounds stated in support of it are erroneous."
Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990).
Yet the majority is not affirming the environmental court's decisions
in any sense. The environmental court did not even consider the
constitutionality of § 4443(d), let alone strike it down. To the contrary,
the court ruled in its two decisions that good-faith applications filed
between public notice and a town's adoption of a proposed zoning amendment
are entitled to review under the old bylaws, but that applications filed
between the adoption and effective date of the proposed amendment must be
considered under the amended bylaws. Thus, in the Jolley case, as the
majority's mandate indicates, the environmental court's decision is
reversed. As for the Handy case, the environmental court remanded the
matter to the zoning board of adjustment for conditional use
or variance approval under the old bylaws, noting that later review might
be necessary before the selectboard under § 4443(d) to determine if the
applications were made in good faith. Of course, after today's decision,
no further review under § 4443(d) is possible.
The majority's efforts to "affirm" the environmental court's
decisions, and thereby justify striking down § 4443(d) without the benefit
of briefing, only compound its problems. With little discussion and -
once again - without the benefit of briefing, the majority impliedly adopts
a pending-amendment exception to Vermont's minority vested rights rule,
stating that "a developer may not have a vested right in an application
filed while a proposed amendment is pending." Ante, at 18 (emphasis
added). Ironically, the effect of the majority's holding is that, when
permit applications are filed while zoning amendments are pending,
municipalities will have the unbridled discretion to deny the applications
based solely on the existence of the proposed amendments. Apart from
citing out-of-state cases in which the highly variable exception has been
applied, id., the majority provides no standards for determining which
situations call for rejecting applications filed within the pendency
period and grounded on claims of vested rights. This arguably creates the
same potential for abuse claimed by the majority with respect to §
4443(d). By striking § 4443(d) and then adopting the pending-amendment
exception without establishing any guidelines for its application, the
majority does, by judicial opinion, precisely the same thing that it claims
the Legislature erred by doing in § 4443(d) - permitting standardless
decision making. We have come full circle.
In short, today's decision does not affirm the trial court's judgment,
but rather sets forth broad holdings - without the benefit of briefing and
based on questionable legal theories - that were not contemplated by the
environmental court and that are contrary to the legislative will. Because
I concur with the majority's interpretation of the meaning of § 4443(d), I
would reverse both of the environmental court's decisions and remand the
matter to that court to review the selectboard's § 4443(d) decisions under
an abuse of discretion standard. If forced to confront the constitutional
issue, I would invite the Attorney General to respond to our constitutional
concerns. For these reasons, I respectfully dissent.
In the majority's view, § 4443(d) unconstitutionally delegates
discretionary authority to town selectboards without providing explicit
standards upon which to base that discretion. Ante, at 2. The majority
further believes that the statute's claimed constitutional infirmity
deprived the permit applicants of prior notice as to what criteria were
relevant to the Town of Shelburne's decisions whether to allow review of
their applications under the old or amended zoning law. Id. at 15-16.
According to the majority, because members of the Shelburne Selectboard
believed that § 4443(d) compelled them to reject the instant applications,
the applicants, particularly Handy, had no real opportunity to make their
case as to why the old zoning law should be applied to their permit
applications. Id.
Apart from the lack of briefing on the constitutionality of § 4443(d),
I do not believe that the record supports the majority's view of the
facts. Both Jolley and Handy knew what factors would be relevant to the
Town's decision under § 4443(d). Further, they both had an opportunity to
make the selectboard aware of the relevant equitable considerations, and
in fact took advantage of that opportunity by raising those considerations
in the hearings before the selectboard. Moreover, the selectboard
declined to apply the old zoning law to the Jolley and Handy applications
after explicitly addressing the equitable arguments raised by the
applicants and acknowledging that § 4443(d) gave the Town the discretion
to apply either the old or the amended zoning law.
In the Jolley case, various representatives appeared and testified on
behalf of Jolley Associates at the March 11, 1997, hearing before the
selectboard. Jolley's attorney specifically reviewed the history of the
permit applications from Jolley's perspective. The attorney complained
that, at a September 24, 1996, meeting, town officials discussed only the
old zoning bylaw with Jolley's representatives, even though the Shelburne
Planning Commission had already conducted several work sessions on the new
amendment. At the hearing, Jolley also pointed out that it had already
expended over $20,000 under the purchase-and-sales agreement it had signed
with the owner of the property upon which it hoped to operate its new
business. Thus, Jolley was well aware that equitable considerations such
as the timing of prior permit applications, the expectations of the
parties, and the expenditures of the applicant in reliance on those
expectations were the kind of
factors that the selectboard would weigh in deciding which law to apply.
In its decision of March 25, 1997, the selectboard acknowledged the
testimony of Jolley's attorney that Jolley had expended $20,000 under its
purchase-and-sales contract and that the proposed zoning amendment had not
been discussed at a September 1996 meeting between town officials and
Jolley's representatives. The selectboard expressly recognized that it "at
all times retains discretion to approve an application" under § 4443(d).
Nevertheless, the selectboard determined that "the equitable factors in
this case do not weigh in favor of granting Jolley's application." The
Selectboard pointed out that (1) the Town properly warned the planning
commission work sessions that were conducted on the proposed amendment
before September 1996, but that Jolley did not directly participate in
that process; (2) most of the money that Jolley had expended in preparing
its application was refundable, putting it in no worse situation than if it
had known of the proposed amendment before September 1996; (3) Jolley
submitted its application only five days before the effective date of the
amendment; and (4) allowing the proposed application would create a use
not permitted under the new zoning law, in contravention of the strong
presumption in Vermont law against the undue perpetuation of non-conforming
uses.
Thus, Jolley had an opportunity to make its case. It was obvious to
all concerned that equitable considerations, along with the nature of the
proposed use and its status under the new zoning law, were the relevant
factors that the selectboard would consider in determining whether to
grant the application.
The same is true in the Handy case. The minutes of the February 10,
1997, hearing reveal that both Paul Handy and his representative reviewed
the history of their application for the proposed project. They pointed
out that the application was first submitted in June 1996, and that it was
denied in August 1996 for reasons unrelated to the gas station that was
proposed. These facts were undisputed and have not been challenged by the
Town. Handy's representative conceded that his application did not comply
with the new zoning law, but complained that he had been unaware of the
changes that were proposed under the new amendment. In its decision of
June 3, 1997, the selectboard noted that Handy's representative had
reviewed the history of the original application
and indicated that Handy had been unaware of the proposed amendment to
eliminate gas station use in the residential-commercial district. The
selectboard also recognized that it "at all times retains discretion to
approve an application" under § 4443(d), but concluded that Handy's
application should be reviewed under the new zoning law because of the
strong presumption in Vermont law against perpetuating non-conforming
uses. Thus, notwithstanding the majority's statements to the contrary,
ante, at 15-16, Handy also had an opportunity to present his case before
the selectboard.
Nevertheless, absent any constitutional challenge from either Handy or
Jolley, the majority declares § 4443(d) unconstitutional because it does
not expressly set forth the specific factors to be considered by a
selectboard in deciding whether applications filed during the moratorium
period will be reviewed under the old or amended zoning law. The relevant
factors are obvious in the context of this discrete, narrow statute. As
the majority acknowledges, ante, at 8, § 4443(d) is aimed at creating a
moratorium period with respect to the issuance of permits for proposed
projects whose status will be affected by pending zoning amendments. In
part, the goal of the statute is to assure that applicants do not take
advantage of a proposed change in the zoning laws by filing an application,
during the period between the notice and the effective date of the proposed
amendment, that is inconsistent with the new laws. In doing so, the
statute furthers this state's policy of eliminating nonconforming uses.
24 V.S.A. § 4408(b) (to achieve purposes of zoning and protect public
interest, municipalities "may regulate and prohibit expansion and undue
perpetration of nonconforming uses"); Hinsdale v. Village of Essex
Junction, 153 Vt. 618, 626, 572 A.2d 925, 930 (1990) ("Nonconforming uses
are inconsistent with the purpose of zoning and are tolerated only because
they are antecedent to the applicable zoning provisions. A goal of zoning
must be to phase out such uses.").
On the other hand, because there may be situations in which it would
be unfair to require an applicant to proceed under the proposed zoning
law, § 4443(d) grants town selectboards some flexibility to allow
applications to be reviewed under the old law during the moratorium period.
Obviously, equitable considerations such as the history of the application,
including the extent to which the applicant incurred expenses in
reasonably relying on having the application considered
under the old law, are relevant to a selectboard's § 4443(d) decision.
Another obvious consideration is the status of the proposed use under the
old and new laws - for example, whether the proposed use is going from a
permitted use to a conditional use or to a use that is being eliminated
altogether, in which case the public policy in favor of eliminating
nonconforming uses would become a major consideration. Not surprisingly,
these are precisely the issues raised by Jolley and Handy and considered
by the selectboard.
The law that the majority cites in support of its contention that §
4443(d) is unconstitutional deals with the duty of towns to set forth
within their zoning laws reasonably specific standards that will control
the discretion of administrative boards in granting or disallowing special
exceptions to permitted uses. See generally 3 K. Young, Anderson's
American Law of Zoning § 21.09 (4th ed. 1996). By requiring standards,
courts seek to assure that property owners are put on notice as to
permitted uses, and that discretion as to whether to allow proposed uses is
not exercised in an arbitrary or discriminatory fashion. In re
Miserocchi, ___ Vt. ___, ___, 749 A.2d 607, 611 (2000); Town of Westford
v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973); Young, supra §
21.10, at 723-24 (even under most flexible standard, power of municipal
legislative body to grant or withhold special permits must be exercised
reasonably, and not "for reasons unrelated to the public health, safety,
or welfare").
Under this reasoning, "[s]tandards of the most general character have
been held sufficient to guide the boards and provide understandable
criteria for judicial review." Young, supra § 21.09, at 713. Indeed,
"[t]here may be a trend toward more liberal construction of standards."
Id. at 716 ("Some courts have been sufficiently impressed with the need
for broad delegation of permit-issuing authority to reach out and discover
standards where arguably there were none."); see Department of Transp. v.
Armacost, 532 A.2d 1056, 1064 (Md. 1987) (reviewing United States Supreme
Court case law on delegation doctrine and noting that doctrine has
returned to dormant state).
I agree with Jolley, and the majority, that town selectboards do not
have unfettered discretion under § 4443(d) to withhold consent for
issuance of permits under zoning laws that are the subject of pending
amendments. While municipal authorities have broad latitude in exercising
discretionary powers granted to them, "the general rule is uniformly
applied that powers granted in comprehensive terms must be reasonably
exercised. It is the province of the court to protect the individual from
unreasonable, oppressive, or arbitrary exercise of power within the limits
of our constitutional and legal system." 5 E. McQuillin, The Law of
Municipal Corporations § 18.04, at 465 (3d ed. 1996).
Thus, there must be a reasonable basis for § 4443(d) decisions in
light of the legislative policy behind the statute; decisions that are
arbitrary, discriminatory, or based on favoritism cannot stand. Young,
supra § 21.10, at 720 (legislative body acting in administrative capacity
"must follow the zoning regulations, and its actions are reviewable, and
subject to judicial reversal if they are without support in the record or
are otherwise arbitrary or unreasonable"). Regardless of whether there
are written guidelines or criteria governing permit applications made
within the § 4443(d) pendency period, a town's decision not to consent to
issuance of a permit under the old zoning laws must at minimum have some
reasonable basis for the reviewing court to evaluate so as to eliminate
decisions based on favoritism, discrimination, or uncontrolled discretion.
Because of its erroneous construction of § 4443(d), the environmental
court did not consider the merits of the selectboard's decisions.
Consequently, for the most part, the parties do not address the question
of whether the selectboard acted within its discretion in refusing to allow
consideration of the applications under the old zoning law. Jolley,
however, takes exception to the selectboard's statement that the
inconsistency of the instant applications with the amended bylaws, in and
of itself, was sufficient under the facts of each of the cases to deny
consent for issuance of permits under the old bylaws.
Without addressing the ultimate question of whether the selectboard
acted within its discretion in requiring that the applications be
considered under the amended bylaws, I see nothing inappropriate in the
selectboard's statement. As noted, the selectboard explicitly recognized
that it had the discretion to examine the equities of a particular case
and grant its consent under § 4443(d), notwithstanding any inconsistency
between the application and the amended bylaws. The selectboard merely
concluded that the equities and circumstances of the Jolley and Handy cases
did
not warrant exercising its discretion to consent to the permits under the
old bylaws. In making this determination, the selectboard considered that
the applications sought approval for uses that were prohibited, even
conditionally, under the new bylaws. In the selectboard's view, the strong
presumption against allowing nonconforming uses was determinative as to
what law should be applied to the applications.
This Court has stressed that the Legislature's delegation of power to
an administrative agency may not be unrestrained or arbitrary, but rather
must "provide a sufficient standard or policy to guide the Agency's
actions." Rogers v. Watson, 156 Vt. 483, 493, 594 A.2d 409, 415 (1991)
(emphasis added); accord In re Vermont Power Exch., 159 Vt. 168, 177, 617 A.2d 418, 423 (1992); Vincent v. Vermont State Retirement Bd., 148 Vt.
531, 535, 536 A.2d 925, 928 (1987); State v. Auclair, 110 Vt. 147, 163, 4 A.2d 107, 114 (1939). Here, the policy behind § 4443(d), a discrete and
narrow statute aimed at limiting consideration of permit applications
during the pendency of proposed zoning laws, guides the discretion of
selectboards in applying the statute. Cf. Vermont Power Exch., 159 Vt. at
177-78, 617 A.2d at 423 (no unlawful delegation of discretion to Public
Service Board, where standards required purchase rates to be favorable to
public interest, just and reasonable to consumers, and nondiscriminatory
toward small power producers). In light of § 4443(d)'s clear policy of
creating a moratorium period to prevent applicants from forcing towns to
consider proposals before relevant, pending zoning amendments are
finalized, there is little doubt as to what criteria are relevant in
determining whether the proposals should be considered under the old or
amended zoning laws. My review of the record leads me to believe that the
legislative policy underlying § 4443(d) has been fulfilled without
violating the rights of the applicants.
It is well settled that, absent exceptional circumstances, this Court
will not consider constitutional arguments inadequately briefed or not
previously raised. SBC Enterprises, Inc. v. City of South Burlington, 166
Vt. 79, 83 n.*, 689 A.2d 427, 429 n.* (1996) (declining to consider
argument, raised for first time on appeal, that city ordinance was
unconstitutional bill of attainder); Quesnel v. Quesnel, 150 Vt. 149,
150-51, 549 A.2d 644, 646 (1988) (refusing to address challenge to
constitutionality of statute where argument was raised for first time on
appeal and there was no
showing of extraordinary circumstances suggesting that issue needed to be
addressed), overruled on other grounds by Theise v. Theise, 164 Vt. 577,
674 A.2d 789 (1996). This rule applies with particular force here, where
(1) no constitutional challenge was made either before the environmental
court or this Court; (2) the majority's sua sponte invalidation of §
4443(d) is based on a controversial application of the delegation
doctrine; and (3) there is not the slightest indication that the
selectboard's decisions thwarted the policy underlying § 4443(d) or were
grounded on favoritism or discriminatory animus.
The effect of today's holding with respect to the instant cases will
be to allow uses in the Town of Shelburne that are not permitted under the
Town's zoning laws. Moreover, the holding will prevent towns across the
state from denying zoning permit applications filed by those seeking to
avoid consideration under proposed amended zoning laws that would restrict
or prohibit uses requested in the applications. Such disruption is
unwarranted absent any challenge to § 4443(d). I would not strike the
statute sua sponte. Rather, I would encourage towns to develop explicit
standards within their zoning ordinances for applying § 4443(d), Young,
supra § 21.11, at 727 ("The selection of standards, within the limits of
the requirement that such standards be adequate, is a function of the
local legislative authority."), and would address the constitutional issue
in a later case, when it was properly raised and argued.
I am authorized to say that the Chief Justice joins in my dissent.
__________________________________
Associate Justice
-------------------------------------------------------------------------
Footnotes
FN1. The majority cites one case - Tonya K. v. Board of Educ. of
Chicago, 847 F.2d 1243 (7th Cir. 1988) - for the proposition that Rule 44
"is not jurisdictional so as to prevent the adjudication of a
constitutional issue in the absence of official notice." Ante, at 9. In
Tonya K., in response to a claim that the district court failed to notify
the Illinois Attorney General that the constitutionality of a state statute
had been drawn into question, the Seventh Circuit Court of Appeals noted
that, although the correct procedure had not been followed, the Attorney
General had been notified of the case three months before oral argument.
The court stated: "The Executive Branch therefore has actual notice of the
case and has had time to exercise its right to intervene." Tonya K., 847 F.2d at 1247. (emphasis added). In marked contrast to the majority here,
the Seventh Circuit concluded that "belated notice satisfies any
requirement" because it provides an opportunity for the Attorney General to
makes its views known and to take a direct appeal should a state statute
be declared unconstitutional by a lower court. Id.
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