Larkin v. City of Burlington
Annotate this Case
Larkin v. City of Burlington (99-219); 172 Vt. 566; 772 A.2d 553
[Filed 31-Apr-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 1999-219
SEPTEMBER TERM, 2000
John Larkin } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
City of Burlington }
} DOCKET NO. S1406-97 CnC
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
Plaintiff John Larkin appeals the superior court's dismissal of his
suit seeking damages resulting from defendant City of Burlington's refusal
to apply to his zoning permit application the terms of a consent judgment
entered into by the City and a previous owner of the subject property. We
affirm.
In 1985, Northshore Partnership and Northshore Development, Inc.
(hereinafter "Northshore") entered into a development agreement with the
City concerning property owned by Northshore. Northshore later sought the
City's approval to develop a portion of the property commonly referred to
as the marina site. The City denied the permit application. Northshore
appealed the permit denial and brought a damages suit in the superior
court, (FN1) which was eventually settled pursuant to a consent judgment
signed by the City and Northshore on April 26, 1989. The consent judgment
allowed Northshore to apply for a permit seeking no more than sixty
residential units on the marina site. Under the agreement, permit
approval would be "subject to all ordinances and regulations duly adopted
and in effect on the date hereof." The consent judgment provided that it
"shall be binding on the successors and assigns of Northshore."
In March 1990, the City granted Northshore approval to construct a
38-condominium-unit development on the marina site. Two years later, the
City extended the zoning permit to allow construction on the project by no
later than March 1993. Northshore never built the project and never
sought an extension of the permit deadline. Eventually, title to the
property was transferred to the Chittenden Bank through foreclosure
proceedings. Larkin entered into a purchase and sale
agreement with the bank on March 14, 1997. Before he purchased the
property, Larkin was given a copy of a May 1995 appraisal specifically
noting that the property had no development permits or approvals, and that
the status of the 1989 consent judgment was unclear. The purchase and sale
agreement itself contained handwritten amendments, initialed by Larkin,
indicating that the property would be conveyed "as is" under a limited
warranty deed.
In June 1997, the same month he purchased the subject property from
the bank, Larkin sought the benefits of the consent judgment in applying
for a zoning permit to construct a sixty-unit elderly housing project on
the marina site. In August 1997, following two days of public hearings,
the planning commission denied the permit based on design review criteria
contained in the then-current zoning laws, as opposed to those in place at
the time of the 1989 consent judgment. The commission stated that the
large scale and site design of the planned buildings created a 460-foot
continuous vertical wall that blocked lake views from public access
trails. The commission concluded that the development would need to be
scaled down and sited differently to avoid creating a massive visual
barrier and to better respect the area's natural areas.
In September 1997, Larkin appealed the planning commission's decision
to the environmental court. Larkin also filed a suit in the superior
court, seeking damages and injunctive and declaratory relief based on
claims that the City's refusal to apply the consent judgment to his permit
application violated a court order, violated his constitutional due
process and property rights, and constituted a breach of contract. The
parties agreed to consolidate the two actions in the environmental court.
In June 1998, the environmental court granted partial summary judgment in
favor of Larkin, ruling that the consent judgment applied to his zoning
permit application. The court remanded the matter to the planning
commission to consider the application in light of the 1989 consent
judgment, and simultaneously transferred the matter to the superior court,
presumably to consider the viability of Larkin's damage claims. The City
filed a notice of appeal of the environmental court's decision, but this
Court dismissed it for failure to appeal from a final judgment or seek
interlocutory appeal. In July 1999, the planning commission granted
Larkin approval to build two eighteen-unit residential structures on the
marina site. The permit was granted under terms of the consent judgment.
Meanwhile, the City moved for dismissal of the transferred superior
court action, claiming that the court lacked subject matter jurisdiction
to consider the matter. In November 1998, the superior court granted the
City's motion, ruling that the environmental court had already granted
Larkin the declaratory relief he sought, and that he was not entitled to
damages stemming from the City's exercise of its governmental authority.
Noting that the City of Burlington and its planning regulations had
changed considerably since Northshore's permit application in the
mid-1980s, the court stated that the City may not barter away its
attributes of sovereignty with respect to its zoning powers. In response
to Larkin's motion for reconsideration, the court concluded that Larkin's
complaint should be dismissed not only for the reasons stated in its
earlier order, but also because the environmental court had exclusive
subject matter jurisdiction over claims stemming from actions taken by
city officials concerning zoning matters. On appeal, Larkin contends that
the superior court erred in dismissing his complaint for lack of subject
matter jurisdiction, arguing that his claim for damages was outside the
environmental court's narrowly defined statutory authority, and that the
superior court retained jurisdiction over its own consent judgment. For
the most part, Larkin does not brief the initial (and alternative) basis
for the superior court's judgment - that the City was not bound by a
consent judgment requiring it to abdicate its zoning authority.
We need not address which court had subject matter jurisdiction over
Larkin's damage claims because, regardless of which one did, we agree with
the superior court that those claims should be dismissed. Before
addressing the substantive issues, we make the following preliminary
points. First, the environmental court's decision regarding the
applicability of the consent judgment was not a final judgment because the
matter was remanded to the planning commission and transferred to the
superior court. See Huddleston v. Univ. of Vermont, 168 Vt. 249, 251, 719 A.2d 415, 417 (1998) (court's order is not final unless it resolves
controversy between parties); In re Cliffside Leasing Co., 167 Vt. 569,
570, 701 A.2d 325, 325 (1997) (mem.) (environmental court's decision
remanding matter to zoning board was interlocutory ruling). Second, the
City had no obligation to file a cross-appeal because it was content with
the superior court's final order. See Huddleston, 168 Vt. at 255, 719 A.2d at 419 (appellee seeking to challenge aspects of trial court decision
must file timely cross-appeal unless party was content with final order);
Valley Realty v. Town of Hartford, 165 Vt. 463, 465 n.2, 685 A.2d 292, 294
n.2 (1996) (cross-appeal is unnecessary where appellee is content with
final order but raises alternative grounds to support it); Coll v. Johnson,
161 Vt. 163, 167, 636 A.2d 336, 339 (1993) (same). Third, we will not
reverse the trial court's underlying decision if the record before us
reveals any legal grounds that would justify the result. In re Handy, ___
Vt. ___, ___, 764 A.2d 1226, 1234 (2000); see Levinsky v. Diamond, 151 Vt.
178, 185, 559 A.2d 1073, 1079 (1989) ("function of this Court is to affirm
the action of the trial court on any basis available and appropriate under
the law"); see also Richards v. Union High Sch. Dist. 32, 137 Vt. 132, 134,
400 A.2d 987, 989 (1979) ("Error will not result in reversal if the record
before us discloses any legal ground which would justify the result, even
though the ground may not have been raised below and may not be
briefed."); Braune v. Rochester, 126 Vt. 527, 533, 237 A.2d 117, 121 (1967)
("Our rule is that we will affirm a ruling of a trial court upon any legal
ground shown by the record, even though the ground may not have been
raised below, and may not be briefed.").
As noted, the principal basis for the superior court's dismissal of
Larkin's claims was that the City cannot contract away its zoning
authority. It is well settled that a municipality cannot contractually
deprive itself of its legislative or governmental powers. 10 E. McQuillin,
The Law of Municipal Corporations § 29.07, at 277 (3d ed. 1999); see
Vermont Dep't of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 151
Vt. 73, 81-82, 558 A.2d 215, 222 (1988) (municipality's statutory
authority to exercise its police powers is in nature of public trust and
thus cannot be bartered away). Accordingly, courts are likely to find
"illegal contract zoning . . . where there is an express bilateral
agreement that bargains away the municipality's future use of the police
power." 3 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning §
29A.03[1][b], [f], at 27, 33-34 (1990) ("courts generally have held that
rezoning agreements that protect land from future rezonings are void as
'illegal contract' zoning"); see Attman v. Mayor, 552 A.2d 1277, 1278 (Md.
1989) (although municipality may enter into binding settlement agreement
concerning certain aspects of land use, it may not contract away exercise
of its zoning power).
Courts, however, have recognized the need for land-use agreements
between developers and municipalities to assure stability in permitting
large projects; thus, the trend has been to allow such agreements unless
they constitute a usurpation of the municipality's zoning authority. See
Rathkopf & Rathkopf, supra, § 29A.03[1][a], [c], at 22-23, 30. In fact,
several states have codified the process
for entering into development agreements. Id. § 29A.03[1][g][i], at 34-35.
While these statutes generally authorize local governments to assure
developers that zoning regulations in effect at the time of an agreement
will remain in effect until the project is completed, they also require
provisions in the agreements that pertain to the duration of the agreement
and the conditions upon which the agreement may be terminated. Id., at 35
n.50. Even so, "[t]he extent to which a local government may validly
restrict or limit its future use of the police power under statutorily
authorized development agreements is an issue that has not as yet been
clearly resolved by state courts." Id. § 29A.03[1][g][ii], at 38.
In this case, Larkin argued that the City had to consider his 1997
permit application under the 1989 consent judgment between the City and
Northshore, even though the application was filed by a different developer
and was for an entirely different project than the one submitted by
Northshore nearly a decade earlier. Larkin's construction of the
agreement would require the City to apply it to any permit application
concerning the subject property by any subsequent owner at any future time,
at least until the property was developed. This would, in effect, freeze
the zoning of the property until that time. In taking this position,
Larkin relied on the absence of a termination provision or any other
provision in the development agreement between the City and Northshore
limiting the duration of the City's commitment to allow development of the
subject property under its zoning laws in effect at the time of the
judgment. He also necessarily relied on the provision stating that the
agreement "shall be binding on the successors and assigns of Northshore."
Because we conclude that the latter provision does not apply to
Larkin, we need not consider whether the development agreement unlawfully
limited the City's zoning authority or further whether principles of res
judicata applied to the consent judgment notwithstanding the unlawfulness
of the agreement. The boilerplate language "successors and assigns," when
referring to corporations, ordinarily applies only when another
corporation, through legal succession, assumes the rights and obligations
of the first corporation. Atchison Casting Corp. v. Dofasco, Inc., 889 F. Supp. 1445, 1458-59 (D. Kan. 1995). Here, following foreclosure, Larkin
purchased from a bank a portion of the property formerly owned by
Northshore and subject to a development agreement between the City and
Northshore. The agreement, which was incorporated into the 1989 consent
judgment, concerned the personal rights of the developer with respect to
the property. No provision of the agreement indicated that it ran with
the land. Nor was Larkin a successor to Northshore as a continuation of
Northshore's corporate entity. See Farm & Home Sav. Ass'n v. Strauss, 671 S.W.2d 682, 684-85 (Tex. Ct. App. 1984) (when used in contractual
provision, "successors" is term of art that does not encompass third-party
purchasers of land from corporation). Nor did Northshore assign Larkin,
either orally or in writing, its interests under the consent judgment. See
Oquirrh Ass'n v. First Nat'l Leasing Co., 888 P.2d 659, 663 (Utah Ct. App.
1994) ("successors and assigns" language can only refer to those who
succeed to party's interest "in the contract through inheritance,
assignment, or the like," rather than to party's interest or claim "in the
premises"); cf. Lamb v. Geovjian, 165 Vt. 375, 380, 683 A.2d 731, 735
(1996) (identity of parties for res judicata purposes is present when one
party is so identified in interest with other party that they represent
one single legal right); Davis v. Saab Scania of Amer., Inc., 133 Vt. 317,
320, 339 A.2d 456, 458 (1975) (res judicata barred suit against successor
corporation). Under these circumstances, neither the agreement nor the
consent judgment extended to Larkin.
Finally, we conclude, as a matter of law, that Larkin cannot prevail
on his estoppel claim, which was not addressed either by the environmental
court or the superior court. Estoppel against the government is applied
only in rare instances in which the elements of estoppel are met and "'the
injustice that would result from a failure to uphold an estoppel is of
sufficient magnitude to justify any effect upon public interest or policy
that would result from raising estoppel.'" Worker's Comp. Div. v. Hodgdon,
___ Vt. ___, ___, 759 A.2d 73, 75 (2000) (quoting Stevens v. Dep't of Soc.
Welfare, 159 Vt. 408, 419, 620 A.2d 737, 743 (1992)); see Wesco, Inc. v.
City of Montpelier, 169 Vt. 520, 523-24, 739 A.2d 1241, 1244 (1999)
(equitable estoppel is based on grounds of fair dealing and justice, and
may be invoked against government only in extraordinary circumstances); In
re Letourneau, 168 Vt. 539, 547-48, 726 A.2d 31, 37-38 (1998) (same); see
also Tour Costa Rica v. Country Walkers, Inc., ___ Vt. ___, ___, 758 A.2d 795, 799, 801 (2000) (under doctrine of promissory estoppel, promise is
binding if injustice can be avoided only by enforcing promise; whether
justice requires enforcement of promise is question of law). Here, even
assuming Larkin could meet the four elements of equitable estoppel, which
does not appear to be the case, there is no injustice in declining to
award him damages for expenses resulting from him going to court to obtain
a remedy to which he was not entitled. Cf. Chioffi v. City of Winooski,
165 Vt. 37, 39-41, 676 A.2d 786, 788-89 (1996) (damages are normally not
available for regulatory delay resulting from appeal process). This is
not a situation in which Larkin conferred benefits upon the City without
receiving benefits in return; indeed, in the end, his application was
permitted under the 1989 consent judgment. Cf. Marrone v. Town of Hampton,
466 A.2d 907, 910-11 (N.H. 1983) (concluding that because town did not
have legal authority to permit landscaping restricting access to public
beach, plaintiffs were not entitled to damages for their reliance on
town's representations inducing them to make improvements, but allowing
plaintiffs to maintain quantum meruit action seeking reimbursement for
improvements).
Affirmed.
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
------------------------------------------------------------------------------
Footnotes
FN1. The suit was brought before jurisdiction over zoning matters became
vested in the environmental court. See 4 V.S.A. § 1001(b).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
