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



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                                  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.