City of South Burlington v. Dept. of Corrections

City of South Burlington v. Dept. of Corrections (99-308); 171 Vt. 587; 
762 A.2d 1229


[File 19-Jul-2000]
[Motion for Reargument Denied 23-Oct-2000]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-308

                              MARCH TERM, 2000


City of South Burlington	       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
                                       }
Vermont Department of Corrections      }	DOCKET NO. S0033-99 CnC

Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


       The City of South Burlington appeals from a dismissal of their action
  for failure to state a  claim for an injunction enforcing the terms of a
  zoning permit granted to the Department of  Corrections.  The City argues
  that the trial court erred in: (1) holding that the Department was not 
  bound by the exclusivity-of-remedy provision for zoning disputes under  24
  V.S.A. § 4472; and (2)  holding that the Department is, as an agency of the
  sovereign, immune from local zoning regulations.  We agree with the first
  claim of error and reverse.

       The State of Vermont, through the Department of Corrections (the
  Department),  operates a  prison on property located in the City of South
  Burlington (the City).  In 1992, the Department  applied to the City
  Planning Commission for site plan approval to add 5,000 square feet of 
  administrative space to the Chittenden Regional Correctional Facility.  In
  its application, the  Department represented that the expansion would not
  result in an increase in either inmates or  employees.  The Planning
  Commission therefore made specific findings of fact that the facility 
  would not increase its number of employees nor its number of inmates.   The
  Commission went on to  note that no additional parking spaces were needed,
  nor would any additional sewer demand be  generated because there would not
  be any additional inmates or employees.  The Commission also  observed that
  although the prison was a prior nonconforming use, the degree of
  nonconformity  would not increase due to the administrative expansion.  The
  Commission concluded, "[t]his  approval is conditional on a maximum of 197
  permanent or semi-permanent beds.  Any increase in  permanent or
  semi-permanent beds shall require Planning Commission approval."  The
  Department  did not appeal this decision.  Seven years passed.

       In January 1999, the City sought to enjoin the Department from using
  the facility to house  more than 197 inmates.  The City alleges that since
  1997 the Department has regularly housed more  than 197 inmates at the
  facility.  The Department moved to dismiss the complaint, claiming 
  sovereign immunity from suit, and the court granted the motion.  The City
  appeals.   

 

       Below, the City argued that 24 V.S.A. § 4472 barred the Department
  from challenging the  validity of the 197-inmate limitation because the
  Department did not appeal the 1992 decision.   Section 4472(a) provides:

    Except as provided in subsection (b) and (c) hereof, the exclusive
    remedy  of an interested person with respect to any decision or
    act taken, or any  failure to act, [in a matter of municipal
    planning and zoning] shall be the  appeal to the board of
    adjustment or the development review board under  section 4464 of
    this title.
    
  We have "strictly enforced the exclusivity-of-remedy provision consistent
  with the evident legislative  intent to require all zoning contests to go
  through the administrative review process in a timely  fashion."  Town of
  Sandgate v Colehamer, 156 Vt. 77, 84, 589 A.2d 1205, 1209 (1990)
  (collecting  cases).   We have recognized that the policy underlying the
  statute is to assure parties of finality.  See  Levy v. Town of St. Albans,
  152 Vt. 139, 142, 564 A.2d 1361, 1363 (1989).  Thus,  subsection (d) 
  declares:

    Upon failure of any interested person to appeal to a board of
    adjustment  under section 4464 of this title, or to appeal to a
    superior court under  section 4471 of this title, all interested
    persons affected shall be bound by  such decision or act . . . and
    shall not thereafter contest, either directly or  indirectly, such
    decision or act . . . in any proceedings, including, without 
    limitation, any proceeding brought to enforce this chapter.  

  24 V.S.A. § 4472(d) (emphasis added).  The broad and unmistakable language
  of this provision is  designed to prevent any kind of collateral attack on
  a zoning decision that has not been properly  appealed through the
  mechanisms provided by the municipal planning and development statutes.  

       We have enforced these sections of § 4472, which are two sides of the
  same coin, uniformly in  cases stretching back several decades.   In
  Colehamer, 156 Vt. at 85, 589 A.2d  at 1210, we held that  the plain
  language of § 4472 "clearly applies to defenses raised in enforcement
  proceedings and  clearly applies to attacks on the validity of zoning
  provisions unless they raise constitutional issues."  We therefore held
  that the defendant who had received a citation for violating a zoning
  ordinance  was required to appeal the citation to challenge the ordinance's
  validity.  See id.at 85-86, 589 A.2d  at  1210.  We reviewed the cases
  enforcing the exclusivity-of-remedy provision and concluded that the  broad
  right of appeal, coupled with the plain language of the statute, barred the
  defendant from  collaterally attacking the zoning ordinance.  See id.  In
  Town of Charlotte v. Richmond, 158 Vt. 354,  357, 609 A.2d 638, 639-40
  (1992), we held that Colehamer applied to affirmative defenses and 
  therefore the defendants' affirmative defense of a permitted nonconforming
  use was barred by failure  to properly appeal a zoning decision under §
  4472.  

 

       In perhaps the most closely analogous case, we held that where the
  zoning board issued a  building permit to a dog-racing facility and the
  superior court later found the approval to have been  void as beyond the
  board's authority to grant, plaintiff-neighbors were barred from attacking
  that  board decision by § 4472.  See Levy, 152 Vt. at 142, 564 A.2d  at
  1364. We observed that § 4472  "implements a policy of repose . . . . [to
  ensure] the orderly governance of development."  Id. at 143,  564 A.2d  at
  1364.   As the plaintiffs had not appealed the original decision of the
  zoning board but  were attempting to collaterally attack it in Levy, we
  concluded that § 4472 "forecloses such a  contest" and deprives the court
  of jurisdiction to hear such claims.  Id. at 142, 564 A.2d  at 1363.   As 
  does the Department in this case, the Levy plaintiffs argued that § 4472
  does not apply where the  zoning decision was void at the time it was made. 
  We rejected that argument, noting that the  Legislature chose to provide
  finality and repose in zoning disputes, and concluded that this policy 
  prevailed "even where the board's ruling is ultra vires."  Id. at 143, 564 A.2d  at 1364. 

       Levy relied in part on Graves v. Town of Waitsfield, 130 Vt. 292, 295,
  292 A.2d 247, 249  (1972).  There, we held that, despite the Town's
  contention that a permit was void because the  issuing administrator lacked
  the authority to issue it, § 4472 precluded the Town from contesting the 
  validity of the permit.  See id.  See also Harvey v. Town of Waitsfield,
  137 Vt. 80, 83, 401 A.2d 900,  901 (1979), overruled on other grounds by
  Mohr v. Village of Manchester, 161 Vt. 562, 641 A.2d 89  (1993)  (§ 4472
  barred collateral attack on zoning board decision even where action
  challenged  validity of zoning ordinance from which board's authority
  derived).  We adhered to the rule that  § 4472 bars attack on a zoning
  decision even when the decision is alleged to have been void ab initio  in
  Philips Constr. Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485, 580 A.2d 50, 51 (1990). 

       In 1992, the Department applied to the City for a zoning permit for
  its administrative  expansion.  It made representations at the time that no
  change in the number of employees or inmates  would result from the
  expansion.  The City's Planning Commission relied on those representations 
  and conditioned its site plan approval on the fact that the facility would
  not house more than 197  inmates.  This condition was clear and explicit in
  the Commission's approval.  The Department chose  not to appeal this
  condition and the decision became final.  The Department may not now argue, 
  seven years later,  that the Commission was without authority.  We see no
  reason to depart from the  clear line of our precedent on this point. 

       The Department responds that it cannot be bound by § 4472 because it,
  as an agency of the   sovereign, is immune from municipal zoning
  regulations of any factor not specifically enumerated in  24 V.S.A. § 4409.
  (FN1)   It further argues that it had no need to appeal the 1992 site-

 

  plan approval because it knew the condition was unenforceable due to its
  sovereign immunity.   Essentially, the Department argues that it need not
  raise its claim to sovereign immunity until it  chooses to do so and that
  no zoning proceeding is really final because it can always re-open a
  dispute  by claiming sovereign immunity.  We reject this argument.  Section
  4472 demonstrates an  unmistakable intent to limit zoning disputes to a
  well-defined procedure and to provide finality at the  end of proceedings. 
  We are not convinced that the State should be exempt from these
  requirements.

       Other states have held, in particular cases, that an entity may be
  barred from raising sovereign  immunity by its failure to preserve the
  issue in prior stages of litigation, or by failure to perfect its  appeal. 
  See, e.g., Miller v. Griesel, 308 N.E.2d 701, 704-05 (Ind. 1974) (holding
  that where  sovereign immunity defense was not raised at trial court level,
  it was improper for consideration on  appeal); Missouri Highway & Transp.
  v. Cold Storage, 948 S.W.2d 679, 682 ( Mo. Ct. App. 1997)  (where state
  highway commission did not raise sovereign immunity during trial, matter
  was not  preserved for review except for plain error); Federal Land Bank of
  Omaha v. Jensen, 415 N.W.2d 155, 159 (S.D. 1987) (holding that claim of
  sovereign immunity from punitive damages which was  not presented to trial
  court was not preserved for appeal).  Cf. Aboujdid v. Singapore Airlines,
  Ltd.,  494 N.E.2d 1055, 1058-59 (N.Y 1986) (holding that conduct of party
  in litigation may constitute  waiver of foreign sovereign immunity in
  particular case and concluding one airline had so conducted  itself as to
  waive sovereign immunity).  

       Requiring preservation, even of jurisdictional issues such as
  sovereign immunity, is in keeping  not only with the policy underlying §
  4472, but with our decision in In re Denio, 158 Vt. 230, 608 A.2d 1166
  (1992).  In Denio, landowners had submitted themselves to the permitting
  process under  Act 250 and received a permit for their proposed subdivision
  but objected to conditions imposed by  the Environmental Board.  On appeal,
  they raised for the first time the claim that the Board lacked 
  subject-matter jurisdiction over them.  Like the Department's sovereign
  immunity argument here, the  Denios argued that subject-matter jurisdiction
  may be raised at any time.  We rejected that argument  based on the strong
  legislative policy requiring preservation and held that the Denios were
  barred  from raising subject-matter jurisdiction by their failure to
  preserve the issue below.  See id. at 236,  608 A.2d  at 1169-70. The
  requirement of preservation stemmed from the strong legislative policy 
  embodied in a statutory provision requiring preservation except in
  extraordinary circumstances.  See  id. at 234, 608 A.2d  at 1168 (citing 10
  V.S.A. § 6089(c)).  We noted that we had previously applied  the statute to
  other jurisdictional issues and that it comported with the law of
  exhaustion of  administrative remedies.  See id., 608 A.2d  at 1169. 
  Further, we explained the policy reasons for  enforcing a requirement of
  preservation in jurisdictional disputes.  We noted that the statutory 
  language did not except jurisdictional issues and that many disputes can be
  cleverly 

 

  re-framed as jurisdictional issues, thereby permitting applicants for Act
  250 permits to avoid raising  jurisdictional disputes before the Board. 
  See id. at 235, 608 A.2d  at 1169.  "As a result, the most  important
  decisions on the scope of Act 250 [would] be made without involvement of
  the Board or  its expertise."  Id.  Therefore, we held that the applicants
  had a duty to raise their jurisdictional  objections and that their failure
  to do so foreclosed the later challenge.  See id. at 236, 608 A.2d  at 
  1169-70.

       The analysis in this case is similar.  The Department applied for site
  plan approval and  received it, but the approval was conditioned on a
  maximum figure of 197 inmates.  The Department  chose not to appeal that
  condition despite § 4472's requirement that any interested party must
  appeal  or forfeit its right to challenge zoning decisions.  The
  longstanding interpretation of § 4472 dictates  that failure to appeal
  forecloses collateral attacks on zoning decisions, even where the zoning
  body's  authority is challenged.  As the Department is barred from
  challenging the validity of the 1992  condition in this proceeding to
  enforce that condition, the trial court was without jurisdiction to 
  consider the issue.  See Levy, 152 Vt. at 142, 564 A.2d  at 1363.

       Reversed.  


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  The Department's analysis is flawed.  Both the Department and the City
  are sub-divisions  of the State.  Both are entitled to sovereign immunity
  in certain cases, and both are subject to suit in  other cases.  No
  simplistic assertion of "sovereign immunity' resolves a dispute such as
  this one.  For  this reason a number of jurisdictions have chosen to
  resolve intergovernmental zoning disputes using  a balancing-of-interests
  test.  See, e.g, Rutgers, State University v. Piluso, 286 A.2d 697, 702
  (N.J.  1972) (developing balancing-of-interests test for use in zoning
  dispute between state university and  town); Blackstone Park, Etc. v. State
  Bd. of Standards and Appeals, 448 A.2d 1233, 1239 (R.I. 1982)  (noting
  adoption of balancing test by at least nine states and approval of test by
  American Law  Institute).  Due to our resolution of the § 4472 issue, we
  need not decide whether to adopt this test,  but merely note that its
  existence demonstrates the issue is more complex than the Department 
  asserts.