In re Ashline

In re Ashline (2002-063); 175 Vt. 203; 824 A.2d 579

2003 VT 30

[Filed 28-Mar-2003]


       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.

                                 2003 VT 30

                                No. 2002-063


       						 Supreme Court

  In re Appeal of Todd and Terry Ashline	 On Appeal from
                                                 Environmental Court


                                                 November Term, 2002
   

  Merideth Wright, J.

  Gary W. Lange of Swanson & Lange, Burlington, for Appellants.

  David A. Barra of Unsworth Powell Barra Orr & Bredice, PLC, Essex Junction,
    for Appellee.


  PRESENT:  Amestoy, C.J., Dooley, Morse, (FN1)  Johnson and Skoglund, JJ.

        
       ¶  1.  SKOGLUND, J.  In this zoning dispute, appellant-landowners
  Todd and Terry Ashline ("Landowners") appeal from an order of the
  environmental court denying Landowners' motion for summary judgment and
  granting summary judgment in favor of appellees, Town of St. Albans
  ("Town").  Landowners appealed to the environmental court from a decision
  of the Town's development review board upholding a notice of violation
  issued after the denial of Landowners' application for conditional use
  approval by the Town's zoning board of adjustment ("ZBA" or "Board"). 
  Landowners contend that the environmental court improperly applied the
  exclusive remedy provisions of 24 V.S.A. § 4472 to dismiss Landowners'
  questions submitted on appeal, arguing that the ZBA's failure to comply
  with 24 V.S.A. § 4462(a) resulted in a non-decision from which they could
  not appeal.  Landowners further contend that the Board's failure to issue a
  decision resulted in deemed approval of the Landowners' application for
  conditional use approval pursuant to 24 V.S.A. § 4470(a).  We affirm.  

       ¶  2.  Landowners hold title in real property on 348 Lake Road in
  St. Albans, a commercial zoning district.  In February 1999, after
  expanding the physical dimensions of the existing house located on their
  Lake Road property, Landowners applied for a certificate of occupancy and a
  certificate of compliance for the as-built construction, indicating that
  the current use of the property was as a "duplex."  In July 1999, the
  Town's zoning administrator notified Landowners that their property was in
  violation of the Town's zoning bylaws and that they must apply to the ZBA
  for conditional use approval or be subject to a notice of violation for
  using their Lake Road property as a duplex.  Landowners then submitted an
  application to the ZBA to "permit a duplex on Lake Road in the Commercial
  District."

       ¶  3.  On August 12, 1999, the ZBA held a public hearing to consider
  Landowners' application for conditional use approval.  Six of the nine
  members of the Town's ZBA were present.  Landowners' motion for "approval
  for the duplex on this property" received four votes in favor and two
  opposed.  Thus, the motion failed because it did not receive a majority of
  the nine-member board.
   
       ¶  4.  On September 16, 1999, the ZBA issued a written notice of
  decision denying Landowners' application for conditional use approval. 
  Landowners did not appeal the ZBA's denial of their  application, nor did
  they request a rehearing before additional members of the ZBA.  Nearly one
  year later, on August 4, 2000, the zoning administrator issued Landowners a
  notice of violation, alleging that Landowners had "continued to utilize
  [their] property as a duplex despite the [ZBA's] denial" of their
  application for conditional use approval.  Landowners subsequently appealed
  this notice of violation to the ZBA.  At this time, the Town was in the
  process of replacing their ZBA with a development review board ("DRB").  A
  hearing before the newly created DRB occurred on October 10, 2000, at which
  time the DRB upheld the notice of violation.  

       ¶  5.  Landowners then appealed the DRB's decision to the
  environmental court.  On June 14, 2001, the court denied Landowners' motion
  for summary judgment and granted summary judgment in favor of the Town. 
  The court found that "because [Landowners] did not appeal the ZBA's
  September 16, 1999 decision . . . [that decision] may not now be
  collaterally attacked in the present proceedings."  The court then
  dismissed that portion of Landowners' appeal concerning the Board's
  September 1999 decision.  Landowners then withdrew their sole remaining
  question on appeal before the environmental court, and this appeal
  followed.

       ¶  6.  Our review of summary judgment is de novo.  Springfield
  Terminal Ry. Co. v. Agency of Transp., __ Vt. __, __, 816 A.2d 448, 452
  (2002).  In reviewing summary judgment, this Court applies the same
  standard as the trial court.  Bixler v. Bullard, 172 Vt. 53, 57, 769 A.2d 690, 694 (2001).  Summary judgment is appropriate when there are no genuine
  issues of material fact and the moving party is entitled to judgment as a
  matter of law.  Id. at 57, 769 A.2d at 693-94; V.R.C.P. 56(c).  As there
  are no disputed factual issues, the issue presented in this appeal is
  solely one of the application of law.  See Pownal Dev. Corp. v. Pownal
  Tanning Co., Inc., 171 Vt. 360, 368, 765 A.2d 489, 495 (2000) (where
  sufficient facts uncontested Court must apply applicable law to those
  undisputed facts). 
   
       ¶  7.  The central issue in this appeal concerns the status of the
  ZBA's September 1999 written denial of Landowners' application for
  conditional use approval.  Landowners assert that the environmental court
  improperly relied upon the exclusive remedy provisions of 24 V.S.A. § 4472
  to dismiss Landowners' appeal.  On appeal before this Court, as they did
  before the environmental court, Landowners argue that § 4472 is
  inapplicable in this case because (1) the ZBA's denial of Landowners'
  application for conditional use approval was a statutorily defective
  decision because the Board failed to act with a majority as required by 24
  V.S.A. § 4462(a); and (2) that the ZBA's defective decision resulted in the
  deemed approval of Landowners' application pursuant to 24 V.S.A. § 4470(a). 
  We disagree.
           
       ¶  8.  Section 4472 mandates that "the exclusive remedy of an
  interested person with respect to any decision or act taken, or any failure
  to act [by the ZBA] . . . shall be the appeal . . . to the environmental
  court . . . ."  24 V.S.A. § 4472(a) (emphasis added).  Appeals from zoning
  boards must be taken within thirty days of the relevant ZBA decision.  See
  id. §§ 4471, 4472; V.R.C.P. 75(c) ("complaint shall be filed within 30 days
  after notice of any action or refusal to act of which review is sought . .
  .); V.R.C.P. 76(e) (governing appeals from zoning boards of adjustment to
  environmental court).  Failure to file a timely appeal from a decision of
  the ZBA deprives the environmental court of jurisdiction to consider that
  decision.  In re Gulli, __ Vt. __, __, 816 A.2d 485, 489 (2002) (mem.)
  (failure to file timely appeal of development review board decision
  justified dismissal of submitted questions relating to that decision).  In
  the absence of a timely appeal, interested persons are bound by decisions
  of the board, and they "shall not thereafter contest, either directly or
  indirectly, such decision or act . . . in any proceeding . . . ."  24
  V.S.A. § 4472(d); Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152
  Vt. 139, 142, 564 A.2d 1361, 1363 (1989).  This Court strictly construes
  the "broad and unmistakable language of [§ 4472(d)] 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."  City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89,
  762 A.2d 1229, 1230 (2000) (mem.). 

       ¶  9.  The Board issued a written decision in September 1999 denying
  Landowners' application.  In Vermont, a judgment of an adjudicative body
  remains valid until reversed or annulled, see Davidson v. Davidson, 111 Vt.
  24, 29, 9 A.2d 114, 116 (1939), but Landowners took no action to contest
  this written decision.  Landowners did not directly appeal the adverse
  decision, and, as the environmental court noted, Landowners did not
  "request that the matter be placed back on the agenda of the ZBA when more
  members could be present."  Instead, Landowners unilaterally determined
  that the Board's September 1999 decision was issued without legal authority
  because the ZBA failed to act with the concurrence of the majority of the
  board as mandated by 24 V.S.A. § 4462(a), and, as a result, did not require
  direct appeal.  According to Landowners, "[t]here is no impermissible
  collateral attack on a 'decision' where there was no valid 'decision' by
  the Zoning Board in the first place."
   
       ¶  10.  This Court has previously considered and rejected arguments
  analogous to those asserted by Landowners.  We strictly enforce the
  exclusivity of remedy provisions contained within § 4472 to require that
  all zoning contests go through the administrative and appellate review
  process in a timely fashion.  Town of Sandgate v. Colehamer, 156 Vt. 77,
  84, 589 A.2d 1205, 1209 (1990).  As such, we have consistently held that §
  4472 "bars attack on a zoning decision even when the decision is alleged to
  have been void ab initio."  City of S. Burlington, 171 Vt. at 589, 762 A.2d 
  at  1231; Phillips Constr. Servs., Inc., v. Town of Ferrisburg, 154 Vt.
  483, 485, 580 A.2d 50, 51 (1990) (plaintiff bound by zoning board's
  decision under § 4472 for failure to directly appeal the board's actions
  despite claim that board acted outside scope of its authority); Levy, 152
  Vt. at 142, 564 A.2d  at 1363-64 (rejecting argument that § 4472 does not
  apply when "the board's decision was void ab initio");  Graves v. Town of
  Waitsfield, 130 Vt. 292, 295, 292 A.2d 247, 249 (1972) (§ 4472 precluded
  town from contesting validity of permit despite lack of administrator's
  authority to issue permit).  While a zoning board's power to act is limited
  by § 4462(a), as we have recognized in the past, "[i]t does not follow . .
  . that when a board exceeds its power, as plaintiffs claim happened here,
  its ruling may be challenged at any time in the future.  To the contrary, §
  4472 implements a policy of repose,  even where the board's ruling is ultra
  vires."  Levy, 152 Vt. at 143, 564 A.2d  at 1364 (emphasis added). 
   
       ¶  11.  Most recently in City of South Burlington v. Department of
  Corrections, we considered an argument asserted by the department of
  corrections that the department did not need to appeal an adverse decision
  of the zoning board because "[the department] knew the condition was
  unenforceable due to its sovereign immunity."  171 Vt. at 590, 762 A.2d  at
  1231.  We rejected this argument outright and found that § 4472
  "demonstrates an unmistakable intent to limit zoning disputes to a
  well-defined procedure . . . ." Id.  Landowners' claim here is analogous to
  that which we expressly rejected in City of South Burlington: that they
  "knew" the ZBA's denial of their application was defective and, therefore,
  they were not required to appeal the Board's denial.  We reject this
  argument again and reaffirm our "longstanding interpretation of § 4472
  [which] dictates that failure to appeal forecloses collateral attacks on
  zoning decisions, even where the zoning body's authority is challenged." 
  Id. at 591, 762 A.2d  at 1232.  Accordingly, § 4472 unequivocally forecloses
  Landowners' challenge to the authority of the ZBA's ruling absent a timely,
  direct appeal.  See Levy, 152 Vt. at 142, 564 A.2d  at 1363.  As such, the
  environmental court was correct in rejecting Landowners' collateral attack
  on the ZBA's September 1999 decision.   The court properly granted summary
  judgment in favor of the Town on the questions presented.  

       ¶  12.  However, Landowners also invoke the deemed approval remedy
  contained within 24 V.S.A. § 4470(a) in their attempt to circumvent the §
  4472 exclusivity of remedy provisions. (FN2)   See id. § 4470(a) (zoning
  board must render a decision within forty-five days of hearing or
  application is deemed approved).  They assert that the Board's failure to
  comply with § 4462(a) resulted in the Board's failure to render a decision
  and, as a result, led to the deemed approval of their application for
  conditional use. (FN3)  Landowners argue that an appeal is superfluous when
  a zoning board fails to render a valid decision and the underlying
  application is deemed approved.  Landowners are incorrect.
   
       ¶  13.  In various contexts, the deemed approval remedy permeates
  chapter 117 of Title 24.  See, e.g., 24 V.S.A. § 4407(2) (board shall grant
  or deny request for conditional use within sixty days or request deemed
  approved); id. § 4464(a) (administrative officer's failure to act within
  thirty days results in deemed approval of application); id. § 4470(a)
  (board shall render its decision regarding an appeal within forty-five days
  or application deemed approved).  Given the prominence of deemed approval
  in Title 24, we have had numerous opportunities to construe the relevant
  statutory language and have consistently held that the purpose of the
  deemed approval remedy provided is to "remedy indecision and protracted
  deliberations on the part of zoning boards and to eliminate deliberate or
  negligent inaction by public officials."  In re Fish, 150 Vt. 462, 464, 554 A.2d 256, 258 (1988) (internal quotation omitted).  We have cautioned
  against extending the deemed approval remedy beyond this limited purpose,
  as improper application "can operate to grant permits wholly at odds with
  the zoning ordinance."  Newton, 167 Vt. at 465, 708 A.2d  at 918; In re
  Knapp, 152 Vt. 59, 65, 564 A.2d 1064, 1067 (1989).  Consequently, we have
  strictly construed the deemed approval remedy to apply only when clearly
  consistent with the statutory purpose.  Newton, 167 Vt. at 465, 708 A.2d  at
  918 (refusing to apply deemed approval remedy in a wooden fashion because
  such an application would allow negative decisions of the board to become
  positive ones "with no finding that the landowner meets the requirements of
  the zoning ordinance"). 
              
       ¶  14.  Determining whether the Board's issued decision violated the
  statutory requirements of § 4462(a) is unimportant.  Landowners did not
  properly appeal the Board's denial of their application for conditional
  use, and as a result, they were bound by that denial pursuant to § 4472(d). 
  Consequently, Landowners' failure to comply with § 4472 deprived the
  environmental court of jurisdiction over Landowners' claim that their
  application for conditional use was deemed approved.   City of Rutland v.
  McDonald's Corp., 146 Vt. 324, 330-31, 503 A.2d 1138, 1143 (1985).  Section
  4470(a) does not carve out an exception to this jurisdictional hurdle.  See
  McGlynn v. Town of Woodbury, 148 Vt. 340, 343, 533 A.2d 1187, 1189 (1987)
  (trial court without jurisdiction to declare request for variance deemed
  approved because landowners failed to properly appeal). 

       ¶  15.  McGlynn v. Town of Woodbury featured a procedural posture
  that is similar, if not exact, to that presented here.  The landowners in
  that case requested and were denied a variance by the town's zoning board. 
  The zoning board failed to make adequate findings in its denial, thus
  violating statutory requirements, but the landowners did not appeal the
  issued decision.  Rather, two months after the board issued its denial, the
  landowners filed a declaratory judgment action in the superior court,
  arguing that the board's failure to make adequate findings led to the
  deemed approval of their variance pursuant to 24 V.S.A. § 4470(a).  148 Vt.
  at 341, 533 A.2d  at 1188.  The superior court agreed with the landowners,
  relying on the language in Potter v. Hartford Zoning Bd. Of Adjustment, 137
  Vt. 445, 448, 407 A.2d 170, 172 (1979), that a "plaintiff's appeal was
  superfluous" because the plaintiff "automatically received a variance when
  the zoning board of adjustment failed to comply with the mandate of §
  4470(a)."  
   
       ¶  16.  This Court, however, did not agree.  We noted that Potter,
  which was overruled by City of Rutland v. McDonald's Corp., 146 Vt. 324,
  503 A.2d 1138 (1985), did not address the jurisdictional issue resulting
  from a landowner's failure to directly appeal an adverse zoning decision. 
  McGlynn, 148 Vt. at 343, 533 A.2d  at 1189.  As such, we held that "any
  language in Potter relating to the jurisdictional issue presented in this
  case [is] dictum." (FN4)  Id.  Reaffirming our holding in City of Rutland,
  146 Vt. at 330, 503 A.2d  at 1142, that § 4472 remains the exclusive remedy
  for landowners despite a board's issuance of deficient findings, we
  concluded that because the landowners "failed to challenge the Board's
  decision by the exclusive remedy of direct appeal, they became bound by
  that denial, and the superior court was without jurisdiction to declare the
  request for a variance granted [by operation of law]."  McGlynn, 148 Vt. at
  343, 533 A.2d  at 1190 (internal citation omitted).   
   
       ¶  17.  McGlynn controls our analysis in this case.  Landowners here,
  while not seeking a declaratory judgment, collaterally attacked the Board's
  allegedly defective decision in the environmental court and sought to avoid
  the jurisdictional bar of § 4472 by relying upon the deemed approval remedy
  of § 4470(a).  We hold today, further clarifying our past decisions in
  McGlynn and City of Rutland, that for the "deemed approval" remedy to be
  effectuated, a party must seek court affirmance of the applicability of the
  statutory remedy through direct appeal of a zoning board's action or lack
  thereof.  This approach prevents landowners from unilaterally determining
  that their rejected application is deemed approved and maintains the
  statutory purpose of the deemed approval remedy while avoiding the grant of
  permits wholly at odds with zoning ordinances.  See Newton, 167 Vt. at 465,
  708 A.2d  at 918.  It also upholds the legislative intent evident in § 4472
  to limit remedies in zoning contests, ensure finality of decision making,
  maintain orderly governance in development, and allow reasonable reliance
  on the statutory process.  See Levy, 152 Vt. at 142-43, 564 A.2d  at 1364. 
  Given this holding, Landowners' claim that their application was deemed
  approved is barred from consideration.

       ¶  18.  This holding is consistent with our prior decisions applying
  the deemed approval remedy.  Those cases, and all of the cases cited by
  Landowners in support of their claim for the application of § 4470(a), did
  not present the jurisdictional issue found both here and in McGlynn.  These
  past decisions involved direct appeals from an adverse decision of a zoning
  board or its equivalent.  See In re Reynolds, 170 Vt. 352, 353, 749 A.2d 1133, 1133 (2000) (direct appeal to environmental court following approval
  of application); Newton, 167 Vt. at 461, 708 A.2d  at 916 (direct appeal of
  adverse zoning decision to environmental court claiming ZBA vote
  ineffective); Fish, 150 Vt. at 463, 554 A.2d  at 257 (appellants filed a
  timely appeal from written denial of application for conditional use
  approval); In re 66 N. Main St., 145 Vt. 1, 2, 481 A.2d 1053, 1054 (1984)
  (partnership appealed zoning board decision denying variance following
  statutorily defective vote); City of Winooski v. Barnes, 142 Vt. 27, 28-29,
  451 A.2d 1140, 1140 (1982) (direct appeal from adverse ruling by Board of
  Appraisers); Potter, 137 Vt. at 446, 407 A.2d  at 171 (direct appeal of
  zoning board's adverse decision to superior court contesting adequacy of
  findings).  Accordingly, we hold that a landowner cannot fail to appeal an
  adverse decision of a zoning board and then rely upon the deemed approval
  remedy provided by § 4470(a) to circumvent the exclusive remedy provisions
  and corresponding jurisdictional bar of § 4472. 

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Justice Morse sat for oral argument but did not participate in this
  decision.

FN2.  This case involved the denial of a conditional use permit request. 
  Neither side has directed our attention to the provisions of 24 V.S.A. §
  4407(2), which provides, "the board of adjustment or the development review
  board shall act to approve or disapprove any such requested conditional use
  within sixty days after the date of the final public hearing held under
  this section, and failure to so act within such period shall be deemed
  approval."  Instead, both sides and the court below relied on the deemed
  approval provisions found in § 4470(a) requiring action within forty-five
  days.  Because delay in issuance of the decision is not at issue in this
  opinion, we merely note the potential for inconsistent reliance on these
  statutes. 

FN3.  Section 4462(a) mandates that any action of a zoning board "shall be
  taken by the concurrence of a majority of the board."  We have held,
  however, that a board can "render a decision", as is required by  24 V.S.A.
  § 4470(a), despite that board's failure to strictly comply with § 4462(a). 
  See In re Newton Enters., 167 Vt. 459, 466, 708 A.2d 914, 918 (1998) (board
  rendered a decision despite a statutorily defective vote); see also In re
  White, 155 Vt. 612, 616, 587 A.2d 928, 930 (1990) (board renders decision
  under § 4470(a) when it makes decision and communicates it to landowner
  even though decision does not fully comply with statute).

FN4.  Landowners rely on the language of Potter to support their position
  that § 4470(a) applies.  They neither addressed, nor cited our decision
  adverse to their position in McGlynn.

FN5.  The Court in McGlynn held that the "Declaratory Judgments Act, 12
  V.S.A. §§ 4711-4725, does not enlarge the subject matter jurisdiction of
  the courts," thus precluding that method of challenge in these cases.  Id.
  at 343, 533 A.2d  at 1189-90.  In re Lionni, 160 Vt. 625, 648 A.2d 832
  (1993), was a declaratory judgment case in which the city sought validation
  for the Burlington Planning Commission's bylaw authorizing that commission
  to act upon a concurrence of less than a majority of its members and
  appealed the superior court's invalidation of a zoning permit granted by
  three members of the seven-member commission.  Id. at 625, 648 A.2d  at
  832-33.  We agreed with the declaratory judgment ruling as to the
  invalidity of the bylaw, but again clarified that a challenge to the zoning
  permit must proceed pursuant to chapter 117 of Title 24.  Id. at 626, 648 A.2d  at 833.