In re Lorentz

In re Lorentz (2002-239); 175 Vt. 522; 824 A.2d 598

2003 VT 40

[Filed 01-Apr-2003]

                                 ENTRY ORDER

                                 2003 VT 40

                      SUPREME COURT DOCKET NO. 2002-239

                             JANUARY TERM, 2003

  In re Appeal of Thaddeus R. Lorentz	}	APPEALED FROM:
  and David H. Nelson	                }
                                        }
                                        }	Environmental Court
                                        }
                                        }
                                        }	DOCKET NO. 120-6-00 Vtec

                                                Trial Judge: Merideth Wright

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

       ¶  1.	The City of Burlington appeals the environmental court's
  decision granting approval for an application by Thaddeus R. Lorentz and
  David H. Nelson ("applicants") to construct a mini-storage facility.  The
  City contends that the environmental court (1) exceeded its authority by
  reviewing applicants' revised application rather than the application
  submitted to the Burlington Planning Commission; (2) exceeded its authority
  by deciding the merits although the statement of questions on appeal raised
  only legal issues about the authority of the planning commission to take
  the actions it did; (3) erroneously ruled that the planning commission
  cannot delegate details of an application to its planning staff; (4)
  committed clear error in approving a minimum 30-foot setback from the
  southwest corner and in allowing the majority of the mini-storage buildings
  to have flat roofs; and (5) erroneously ruled that the City may not impose
  a release-of-liability permit condition for contamination at the site.  We
  affirm.

       ¶  2.	Applicants applied for a certificate of appropriateness from
  the planning commission for a proposed mini-storage facility on Flynn
  Avenue in Burlington.  The project site is located in Burlington's
  enterprise zoning district and is adjacent to a waterfront residential
  low-density zoning district, with residential condominium development to
  the southwest.  The planning commission approved the application with a
  number of conditions.

       ¶  3.	Applicants appealed certain of these conditions to the
  environmental court.  The court granted in part and denied in part
  applicants' motion for summary judgment, ruling that the City's zoning
  ordinance authorizes the planning commission, and hence the environmental
  court on appeal, to impose conditions beyond the zoning ordinance's minimum
  standards if necessary to meet either the design review or site plan
  standards.  The court also ruled that the City is not authorized by the
  ordinance to impose a release-of-liability condition.  The court
  subsequently held merit hearings for the application's site plan approval
  and design review.  Thereafter, the court issued a written decision,
  modifying a number of the conditions imposed by the planning commission. 
  This appeal followed.
   
       ¶  4.	The City makes two related arguments why the court did not
  have jurisdiction to reach its result: (1) the court allowed the applicant
  to propose a site plan different from that presented to the planning
  commission in numerous respects and ruled on that site plan; and (2)
  although the statement of questions on appeal raised only legal issues
  about the authority of the planning commission to take the actions it did,
  the court went further and decided the merits as if it were the planning
  commission.  The City argues that applicants cannot go beyond the proposal
  they made to the planning commission, see In re Torres, 154 Vt. 233, 235 ,
  575 A.2d 193, 195 (1990) (stating that, in zoning appeals, "[t]he reach of
  the superior court . . . is as broad as the powers of a zoning board of
  adjustment or a planning commission, but it is not broader"), and beyond
  the questions it specified for appeal, see V.R.C.P. 76(e)(4)(B) (requiring
  appellant, on appeals to environmental court from municipal boards and
  commissions, to "file a statement of the questions that the appellant
  desires to have determined").  Specifically, it complains that the court
  allowed applicants to reduce setbacks from the forty-five feet they
  presented to the planning commission to twenty feet on the westerly side
  and twenty-five feet on the southerly side, remove a number of green
  spaces, propose flat roofs instead of pitched roofs, and put forth an
  amended landscaping plan.

       ¶  5.	We cannot find where either argument was made to the
  environmental court, and the court ruled on neither argument.  Applicants
  first made clear that they were pursuing an alternative site plan and
  wanted the court to adopt it when they put the site plan in evidence at the
  start of the evidentiary hearing.  The City made no objection to the
  proposed site plan, nor to the extensive evidence offered in support of the
  plan.  The first and only time the City might have addressed the
  jurisdictional issues was in its proposed conclusions of law in which it
  suggested that the court use the following language: "the Court shall start
  with the 45 foot setback that was proposed before the [planning commission]
  and not the current proposal as the Court 'must approach the case if [sic]
  it were the planning commission . . .'  In re Appeal of Gaboriault, et al.,
  167 Vt. 583, 585."  The City proposed similar language with respect to the
  other issues.  We cannot read this cryptic statement as stating the
  argument that the environmental court was jurisdictionally precluded from
  addressing the modified site plan.  Moreover, the statement never addressed
  the argument made here that applicants exceeded the bounds of the questions
  on appeal.  We will not address arguments made for the first time on
  appeal.  In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001).

       ¶  6.	In addition, the City argues that the planning commission
  unlawfully delegated to its planning staff the subsequent approval of
  certain details in the application.  This issue is moot because the
  environmental court reviewed applicants' proposal without the delegation
  condition.  See In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 100 (1997) ("[A]
  case becomes moot when the issues presented are no longer 'live' or the
  parties lack a legally cognizable interest in the outcome.").

       ¶  7.	The City further argues that the court committed clear error
  by approving the 30-foot minimum setback in the southwest corner and by
  allowing the majority of proposed mini-storage buildings to have flat
  roofs.  The environmental court noted that the "proposed storage unit use
  is a good transitional use for the property, as it is a relatively
  low-intensity use and relatively quiet."  The court found that the 30-foot
  setback, along with a better-designed location and J-shaped placement of
  the buildings, "provide an adequate level of protection to meet [zoning
  ordinances] §§ 7.1.6(c), 6.1.10(a) and 6.1.10(b) . . . [and] avoid the
  die-back of existing trees between the buildings and the boundary."  The
  court further found that "[t]o provide the required relationship to the
  project's context (§ 6.1.10(a)) it is only necessary that the roofs visible
  to be glimpsed from Flynn Avenue have a mixture of shed and pitched roof
  types, to provide the visually harmonious relationship to existing
  buildings in the vicinity."  Thus, the court allowed applicants to choose
  between pitched or flat roofs for certain buildings.  "[W]e will uphold the
  environmental court's construction of a town's zoning ordinance unless
  clearly erroneous, arbitrary, or capricious, and review determinations of
  fact for clear error."  In re Dunnett, 172 Vt. 196, 200, 776 A.2d 406,
  409-10 (2001) (internal citations omitted).  We discern no basis to
  conclude that the court's rulings were clearly erroneous.

       ¶  8.	The City also argues that it should be able to impose a
  release-of-liability permit condition for hazardous material contamination
  of the site.  The City fails, however, to demonstrate any risk of liability
  for possible contamination of this site.  The City does not claim to be a
  party in the chain of title to the property, and in fact concedes it should
  not incur liability by merely exercising its jurisdiction and authority as
  a regulatory body in permitting the proposed use.  Thus, the City has not
  shown that it " 'is suffering the threat of actual injury to a protected
  legal interest,' " and instead " 'is merely speculating about the impact of
  some generalized grievance.' "  Parker v. Town of Milton, 169 Vt. 74, 77,
  726 A.2d 477, 480 (1998) (quoting Town of Cavendish v. Vt. Pub. Power
  Supply Auth., 141 Vt. 144, 147, 446 A.2d 792, 794 (1982)).  The City also
  argues that the release-of-liability condition should be upheld for the
  sake of prudence.  This Court, however, will not render an advisory opinion
  on this or any issue.  In re Constitutionality of House Bill 88, 115 Vt.
  524, 529, 64 A.2d 169, 172 (1949).

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned