In re Beckstrom
Annotate this Case
In re Beckstrom (H.A. Manosh) (2003-274); 176 Vt. 622; 852 A.2d 561
2004 VT 32
[Filed 08-Apr-2004]
ENTRY ORDER
2004 VT 32
SUPREME COURT DOCKET NO. 2003-274
MARCH TERM, 2004
In re Appeal of Beckstrom, et al. } APPEALED FROM:
(H.A. Manosh, Appellant) }
}
} Environmental Court
}
}
} DOCKET NO. 212-11-98 Vtec
Trial Judge: Merideth Wright
In the above-entitled cause, the Clerk will enter:
¶ 1. H.A. Manosh Corp. appeals from a decision of the
environmental court declaring that a permit to erect a radio tower and
support building was rendered null and void by its failure to commence
construction within one year. Plaintiffs, comprised of persons who live in
the neighborhood of the proposed tower, have cross-appealed from the
court's determination that the permit was not also rendered void by
Manosh's alleged misrepresentations in the permit application. We affirm
the court's ruling on the misrepresentation claim, but reverse its decision
that the permit was void for failure to commence construction within one
year.
¶ 2. This case has a complex procedural history. Manosh owns a
radio tower located on what the parties refer to as the Jones property in
the Town of Hyde Park. On April 18, 1997, Manosh applied for a zoning
permit to erect a radio tower and support building on a separate
twenty-nine-acre parcel that it owns in the Town. The application
described the tower as 100 feet high and the building as a "cement block
structure." Several witnesses at trial testified that Manosh informed the
zoning administrator at the time of the application that the company's
intent was to relocate the Jones tower to the twenty-nine-acre parcel site,
but that intention was not stated in the permit application, and it was
established at trial that the Jones tower is closer to seventy-five feet
tall, measured to the base of the metal structure rather than the foot of
its concrete base.
¶ 3. The administrator approved the application as a permitted
use. In fact, however, the tower was not a permitted use in the zoning
district where the site was located, but no party appealed the issuance of
the permit and it became final. The application form signed by Manosh
stated that "[a]ny permit issued as a result of this application shall be
null and void in the event of misrepresentation or failure to undertake
construction within one year of approval of this Zoning Permit." The
permit was issued on April 23, 1997, and showed an expiration date of April
23, 1998.
¶ 4. Within several months after issuance of the permit, Manosh
became interested in revising its plans in order to relocate a different
150-foot tower (later determined to be closer to 160 feet), owned by the
Lamoille County Sheriff's Department, from its existing location in the
Village of Hyde Park to the new twenty-nine-acre site. In July 1997, the
zoning administrator granted Manosh's request to amend the permit to allow
a 150-foot tower. The amended permit was appealed shortly thereafter by an
adjoining landowner, but no hearing before the zoning board of adjustment
was convened. In September, Manosh applied for an Act 250 permit to erect
a 150-foot tower and support building at the new site by relocating the
so-called Village tower and shifting the antennas from the Jones tower to
the Village tower, and to upgrade a logging road for access to the site.
The permit was granted in November, but was later revoked in February 1999.
¶ 5. In the meantime, in August 1998, plaintiffs appealed the
original zoning permit to the ZBA, which ruled the appeal untimely.
Plaintiffs also appealed the administrator's decision not to institute
enforcement proceedings based on plaintiffs' allegations that the permit
was void for failure to undertake construction within one year. The ZBA
ruled that the permit had not expired, citing Manosh's undertakings in
laying underground electrical conduits and upgrading the access road. The
ZBA later ruled that the initial appeal of the amended permit in July had
been timely, that the tower was not a permitted use, and that a conditional
use permit would be required. In March 1999, the ZBA granted Manosh's
application to amend the April 1997 permit, and issued a conditional use
permit and site plan approval authorizing Manosh to relocate the Village
tower to the new site.
¶ 6. All of the ZBA rulings were appealed to the environmental
court. In response to cross-motions for summary judgment, the court ruled
that the original April 1997 permit was final, notwithstanding the fact
that it authorized a non-permitted use in the district, but that material
facts were in dispute as to whether it had expired for lack of construction
or was void based on alleged misrepresentations in the application. The
court further ruled that the July 1997 amendment authorizing a 150-foot
tower required a conditional use application, but remanded to the Town's
planning agency for further proceedings, including the filing of a more
complete application and a determination whether the new permit complied
with an interim bylaw, enacted by the Town in January 1999, imposing a
moratorium on the erection of communications towers (the April 1997 permit
was exempt from the bylaw in question).
¶ 7. An evidentiary hearing addressed solely to the issues
concerning the April 1997 permit was then held over two separate days in
May and November 2002. In May 2003, the court issued a written decision,
rejecting plaintiffs' claim that Manosh had made fraudulent
misrepresentations in applying for the permit, but finding nevertheless
that the permit had expired and was void because Manosh had failed to
undertake construction within one year of its issuance. Both parties have
appealed from the court's decision.
¶ 8. Manosh contends the court erred in concluding that the permit
had expired due to the failure to undertake construction within one year
of its issuance. The trial court found in this regard that from January
1998 to the expiration date in late April, Manosh performed work on the
road leading up to the site and installed underground electrical conduit
along the roadway. The court also found that additional work "may" have
been done at the tower site itself, including clearing and "some subsurface
concrete work." The evidence underlying these findings shows that, during
the four-month period in question, Manosh committed almost 400 work-hours
to the tower project, incurring expenses in excess of $26,000. Time-sheets
and testimony established without contradiction that Manosh installed
utility lines, graded and graveled the road leading to the site, cleared
the site, and poured concrete. Although the evidence does not identify the
purpose of the poured concrete, it is reasonable to infer that it was
related to construction of the "cement-block" support building specified in
the permit.
¶ 9. Although we will not - absent clear error - disturb the trial
court's factual findings, "[q]uestions of law are reviewed de novo,
allowing us to proceed with a nondeferential, on-the-record review." In
re Gulli, 174 Vt. 580, 582, 816 A.2d 485, 488 (2002)(mem). In concluding
that Manosh failed to commence construction within the one-year permit
period, the trial court here applied a legal standard which precluded
consideration of work other than that directly related to the structures
specified in the permit - the tower and support building. Thus, the court
found that grading the access road, laying utility lines, and clearing the
tower site were immaterial, and appeared to further conclude that the
pouring of concrete at the site - without more specific information - was
inadequate to demonstrate that construction had commenced.
¶ 10. Although Vermont law provides little guidance on this issue,
other jurisdictions have taken a broader view of what constitutes a
commencement of "construction" than the trial court here, holding that the
standard to be applied should reflect the purpose to be served. As one
court has explained: "It is settled that the purpose of statutes or
ordinances providing for automatic expiration or revocation of use permits
when work has not commenced or a use established is to prevent the
reservation of land for future purposes when the permittee has no good
faith intent to presently commence upon the proposed use." Cmty. Dev.
Comm'n of Mendocino County v. City of Fort Bragg, 251 Cal. Rptr. 709, 712
(Cal. Ct. App. 1988). The Court of Appeals there held that despite "the
absence of actual on-site construction," id. at 713, the developer's good
faith intent to proceed with a permitted housing project had been
demonstrated through the expenditure of funds on such "pre-construction"
work as engineering and architectural studies, test borings, surveying, and
the removal of two small pre-existing structures. Id. at 1132. The court
thus concluded that the trial court had erred in "apply[ing] a standard
concerned with the extent of construction alone," and reversed the trial
court's judgment that the permit had expired. Id.
¶ 11. Other courts have applied a similar line of analysis. In
City of Ellsworth v. Doody, 629 A.2d 1221, 1223 (Me. 1993), for example,
the Supreme Judicial Court of Maine rejected a municipality's contention
that a permit to construct a lakefront cottage had expired under an
ordinance requiring "significant progress of construction" within six
months of issuance. The court agreed with the homeowner "that the fact
that he did not actually begin construction of the building until two years
after obtaining the permit is not determinative." Id. Evidence that the
permittee had "cleared the site, built a driveway and installed a septic
system" within six months of issuance was sufficient to satisfy the
ordinance. Id. A similar conclusion was reached in State ex rel.
Helujon, Ltd. v. Jefferson County, 964 S.W.2d 531 (Mo. Ct. App. 1998),
where it was alleged that the developer of a casino project had failed to
commence development within twelve months of issuance of a zoning permit,
as required by local ordinance. The court found, however, that the
clearing of trees and shrubs at a cost of over $17,000, removal of a
pre-existing residence, and placement of a construction trailer on the site
- while not in themselves requiring a permit - were a "necessary
preliminary to the overall project" and thus sufficient to satisfy the
intent of the ordinance. Id. at 541. Equally instructive - from the
opposite perspective - is Ross v. Montgomery County, 250 A.2d 635 (Md.
1969), where the court affirmed a trial court ruling that a builder had
failed to commence construction of a proposed apartment building within the
requisite six-month permit period. The record evidence showed that all of
the work on the project had been performed in a single day, and consisted
of one seven-by-fifteen foot excavation and the installation of a single
footing. This demonstrated, in the court's view, that the permit holder
had not "in good faith, beg[un] actual construction under the building
permit within a period of six months after its issuance." Id. at 638.
¶ 12. These decisions articulate a fair and reasonable approach to
determine whether construction has commenced within the time limit imposed
by a zoning ordinance or permit, focused on whether - viewed as a whole -
the work, time, and expenditures invested in the project demonstrate a good
faith intent to presently commence upon the permitted use. Applying that
approach here, we find that the evidence clearly supports a conclusion
that Manosh commenced construction before the permit had expired. As
noted, the record shows that over a period of several months, Manosh
invested nearly 400 work-hours in the tower project, at a cost in excess of
$26,000. The extent and duration of the work demonstrates a good faith
intent to make present use of the permit, not merely an artificial attempt
to preserve the permit for future use. Moreover, all of the work and money
invested for grading of the access road, clearing of the project site,
laying utility lines, and pouring of an undetermined amount of concrete -
while not specified in the permit itself - was plainly designed to
facilitate completion of the overall project. Accordingly, we conclude the
trial court erred in ruling that the permit had expired before construction
commenced. (FN1)
¶ 13. In their cross-appeal, plaintiffs contend the trial court
erroneously rejected their claim that the permit was null and void based
on allegations that Manosh had intentionally misrepresented its intent to
erect a 100-foot tower when it submitted its application in April 1997.
Plaintiffs' rather intricate theory at trial was that Manosh knew the
actual height of the Jones tower was 75 feet and intentionally
misrepresented its height as 100 feet. They claimed that Manosh never
intended to actually relocate the Jones tower, but instead had formulated a
secret intent to erect a tower between 150 and 190 feet, and hoped that
approval for the higher tower would be easier to obtain, and appear to be
less extreme, if the initial permit specified a tower of up to 100 feet.
The trial court was unpersuaded, finding as follows:
Based on the voluminous evidence submitted in this proceeding, we
cannot find that the April 1997 permit application was a
misrepresentation of [Manosh's] plans at the time the application
was filed. Rather, at the time it was filed [Manosh] was pursuing
plans to install the Jones tower at that site, believing it to be
approximately 100 feet tall, even though within a few months after
that application [Manosh] had revised and expanded its plans to
move the taller Village Communications tower to the site, or to
install an even taller tower at the site. The April 1997 permit
is therefore not void for misrepresentation at the time the
application was filed.
¶ 14. We will not disturb the trial court's factual findings
unless, viewed in the light most favorable to the prevailing party, and
disregarding any modifying evidence, they are clearly erroneous. In re
Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002). It is
the within the trial court's province to determine the credibility of the
witnesses and weigh the persuasive effect of the evidence. Id. A finding
of fraudulent misrepresentation requires a showing that Manosh knowingly
made a false representation of fact, or knowingly concealed facts, with the
intention to mislead or deceive. Silva v. Stevens, 156 Vt. 94, 103, 589 A.2d 852, 857 (1991).
¶ 15. A review of the record evidence reveals that the court's
findings are amply supported by the testimony of several witnesses that
Manosh's sole intent at the time of the April 1997 application was to move
the Jones tower to the new site because the owner of the Jones property
planned to use his land for other purposes. There was also testimony that
Manosh had, in good faith, based its estimate of the tower's height on
information in a relevant FCC license. A site plan dated April 17, 1998,
illustrating the location of the 100-foot tower at the proposed new site,
further supports the court's finding that Manosh intended to relocate the
Jones tower to the new site at the time of the permit application. (FN2)
There was also testimony and documentary evidence that several months after
receiving the April 1997 permit, Manosh was approached about moving the
so-called Village tower - which was believed to be 150 feet in height - to
the new site, which led to Manosh's subsequent efforts to amend the permit
to allow a 150-foot high tower and to obtain an Act 250 permit. Thus, ample
evidence supported the court's conclusion that the permit was not void for
misrepresentations made at the time of the application.
¶ 16. Plaintiffs urge, nevertheless, that the court's findings are
overwhelmingly refuted by circumstantial evidence demonstrating an intent
to deceive, including the fact that the permit application misstated the
height of the Jones tower, failed to expressly state that Manosh intended
to relocate the Jones tower, and omitted any plans to upgrade the access
road to the site. Plaintiffs also note that within several months of
receiving the permit, Manosh undertook extensive efforts to place a taller
tower on the site. And they note further that Manosh failed to undertake
any preliminary work at the site until January 1998, nearly eight months
after receiving the initial permit. As noted earlier, however, the trial
court is entitled to weigh the evidence and the credibility of the
witnesses, and its findings will not be disturbed where - as here - they
are supported by credible evidence, even in the presence of substantial
modifying evidence. Gulli, 174 Vt. at 582, 816 A.2d at 488; N.A.S.
Holdings, Inc., v. Pafundi, 169 Vt. 437, 438, 736 A.2d 780, 783 (1999).
Accordingly, we discern no basis to disturb the trial court's conclusion
that no misrepresentation had occurred at the time of the application to
invalidate the permit. (FN3)
Affirmed in part; the judgment voiding the April 1997 permit for
failure to commence construction within one year of its issuance is
reversed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
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Footnotes
FN1. Plaintiffs' assertion that this preliminary work was somehow unrelated
to the proposed tower project because the zoning administrator later
approved Manosh's request for an amended permit to allow a 150-foot tower
is unsupported by any citation to authority, and finds no support in reason
or logic.
FN2. Although plaintiffs assert in passing that the trial court erroneously
admitted this site-plan for lack of an adequate foundation, they produce no
argument or authority to support the claim, and we therefore decline to
address it. Johnson v. Johnson, 158 Vt. 160, 164, n.*, 605 A.2d 857, 859,
n.* (1992).
FN3. Plaintiffs make a brief argument that the court improperly excluded
two documents allegedly relevant to the misrepresentation claim: an
application, dated April 13, 1998, for an amendment to add 30 feet to an
Act 250 permit allowing a tower of 160 feet at the site, and a decision of
the Environmental Board, dated February 13, 1999, revoking the permit for
the 160-foot tower. The court ruled that both exhibits were "too remote in
time" to reflect anything material to Manosh's state of mind at the time of
the April 1997 application. Citing no pertinent authority, plaintiffs have
failed to demonstrate that the court abused its broad discretion to
determine whether the evidence was too remote to be of relevance. See In
re Letourneau, 168 Vt. 539, 554, 726 A.2d 31, 41 (1998) ("[T]he trial court
has broad discretion to exclude marginally relevant evidence that is
remote, tends to confuse the issues or causes a waste of time.").
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