In re Tekram Partners

In re Tekram Partners (2004-049); 178 Vt. 628; 883 A.2d 1160

2005 VT 92

[Filed 28-Jul-2005]

                                 ENTRY ORDER

                                 2005 VT 92

                      SUPREME COURT DOCKET NO. 2004-049

                             FEBRUARY TERM, 2005

  In re Appeal of Tekram Partners,	}	APPEALED FROM:
  Century Partners and Judge Companies	}
                                        }
                                        }	Environmental Court
                                        }	
  	                                }
                                        }	DOCKET NO. 72-5-01 Vtec

                                                Trial Judge: Stephen B. Martin
                                                             Matthew I Katz 

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

       ¶  1.  Appellants Tekram Partners, Century Partners, and Judge
  Companies (hereinafter collectively referred to as Tekram Partners) appeal
  the environmental court's decision upholding three zoning violations issued
  by the City of South Burlington.  Tekram Partners argue that the
  exclusivity-of-remedy provision in 24 V.S.A. § 4472 bars the City from
  raising certain violations because the City approved these disputed design
  features when it issued certificates of occupancy three years earlier. 
  Tekram Partners further contend that nothing on the approved site plan or
  in the City's zoning ordinance imposes a requirement to "stripe" (i.e.
  paint) parking spaces.  As to two of the violations raised on appeal, we
  reverse.  Regarding the third violation, we conclude that the lines
  indicating parking spaces on the approved site plan are sufficient to
  impose a striping requirement, and, therefore, we affirm the environmental
  court's decision to uphold the striping violation.  The City cross-appeals
  from the environmental court's dismissal of an alleged zoning violation
  regarding the unapproved location of one garbage dumpster.  Tekram Partners
  complain that the fifteen-year limitations period under 24 V.S.A. § 4454
  (formerly § 4496 (FN1)) precludes the City's enforcement of this violation
  because the dumpster has been in the same location since 1975.  We reverse
  on this issue.
   
       ¶  2.  We first consider the alleged violations regarding the paving
  of two triangular green areas and the conversion of retail space to storage
  space.  The City alleges these violations on the basis that Tekram Partners
  deviated from the site plan without the necessary approval from the City. 
  Tekram Partners appeal the violations, arguing that the City's zoning
  administrator approved of the disputed areas by issuing certificates of
  occupancy for Tekram Partners' Four Market Street Building.  Tekram
  Partners argue that § 4472(a), therefore, bars the City from enforcing
  violations in these areas because the City failed to timely appeal the
  zoning administrator's decision to issue certificates of occupancy for the
  project.  The environmental court upheld these violations, reasoning that
  the disputed design features deviated from the project as permitted, and
  that Tekram Partners had not received the necessary approval from the City
  for these deviations.  Without analysis of the potential effect that the
  certificates of occupancy had in ratifying the nonconforming design
  features, the environmental court concluded that Tekram Partners' § 4472(a)
  argument was "not persuasive."  After reviewing the record and the
  applicable zoning regulations, we hold that the environmental court's
  conclusion on this issue is not supported.  The City's enforcement of these
  violations three years after its own zoning administrator issued
  certificates of occupancy that apparently cover the entire Four Market
  Street project amounts to the type of untimely collateral attack on the
  administrator's decision that is expressly barred by § 4472(a). 
  Accordingly, we reverse the environmental court's decision to uphold these
  violations.

       ¶  3.  The alleged violations occur at the northeast corner of the
  Four Market Street Building, one of five structures within a larger Planned
  Unit Development (PUD) known as the 100 Dorset Street Complex.  On March
  12, 1996, the City's planning commission issued final plat approval of the
  PUD. (FN2)  Among other things, the City approved a 15,000 square -foot
  building at Four Market Street.  

       ¶  4.  On July 3, 1997, Tekram Partners obtained a zoning permit
  from the City authorizing construction of the Four Market Street Building. 
  During construction, Tekram Partners paved two triangular areas at the
  northeast corner of the building and installed an overhead door for access
  to the part of the building that would be used for storage at this corner. 
  When construction was complete, Tekram Partners requested a certificate of
  occupancy from the City for the Four Market Street Building.  Pursuant to §
  27.20 of the South Burlington Zoning Regulations, once Tekram Partners
  notified the City that the Four Market Street project was ready for use and
  occupancy, the City's zoning administrator then had a duty to make a final
  inspection of the premises and issue a certificate of occupancy "if the
  project [was] found to conform with the provisions of [the] ordinance."  S.
  Burlington Zoning Regulations § 27.202. 
   
       ¶  5.  In December 1997, the City's zoning administrator
  conducted an inspection of the Four Market Street Building pursuant to
  Tekram Partners' request.  On December 11, 1997, the City's zoning
  administrator issued three certificates of occupancy for the retail units
  that comprise the Four Market Street Building.  Attached to the
  certificates was a sketch depicting the floor plan of the building and
  indicating the square footage of each retail unit.  Also included on this
  sketch was an area labeled "Mechanical 580 SF," which corresponded with the
  northeast corner of the building where the paved areas and the overhead
  door had been constructed.  The environmental court found that the two
  paved areas and the storage area would have been visible to the City's
  zoning administrator at the time of inspection.  The court also found that
  at no time during the inspection did the zoning administrator alert Tekram
  Partners to the possibility that the paved areas or the storage area were
  inconsistent with the approved plan and, therefore, in violation of the
  zoning ordinance.  The findings also indicate that Tekram Partners
  considered the issuance of the certificates as final approval of the Four
  Market Street Building for which no further certificates of occupancy were
  required.  

       ¶  6.  Three years later, on September 26, 2000, the City issued a
  notice of violation to Tekram Partners, which alleged, among other things,
  that the paved areas and the storage area located at the northeast corner
  of the Four Market Street Building violated the zoning ordinance.  Tekram
  Partners timely appealed the notice of violation to the City's development
  review board, which upheld the notice of violation.  Thereafter, Tekram
  Partners appealed to the environmental court, which dismissed some of the
  violations, but upheld the violations regarding the paved areas and the
  storage area.  Tekram Partners now appeal from the environmental court's
  decision. 

       ¶  7.  We now consider whether 24 V.S.A. § 4472(a) precludes the
  City from enforcing the alleged violations regarding the two paved
  triangular areas and the storage area at the northeast corner of the Four
  Market Street Building.  When determining whether the trial court's
  conclusions are consistent with the applicable law, we exercise plenary,
  nondeferential review.  Sigler Found. v. Town of Norwich, 174 Vt. 129, 130,
  807 A.2d 442, 443-44 (2002).  We will uphold the court's conclusions if
  they are consistent with the controlling law and are supported by the
  findings.  Id.  On this issue, the environmental court's conclusion is not
  supported by the findings and largely ignores the effect of § 4472(a).  

       ¶  8.  An interested person or municipality (FN3) may file an appeal
  with the appropriate panel within fifteen days of any decision or act taken
  pursuant to a provision of any plan or bylaw.  24 V.S.A. § 4465 (formerly §
  4464).  This is the exclusive remedy for contesting local zoning decisions
  or actions.  Id. § 4472(a).  We have "strictly enforced" this
  exclusivity-of-remedy provision to ensure timely review of all zoning
  disputes, thereby assuring parties of finality.  City of S. Burlington v.
  Dep't of Corr., 171 Vt. 587, 588, 762 A.2d 1229, 1230 (2000) (mem.)
  (internal quotations omitted).  Section 4472(a) pertains to "any decision
  or act taken . . . with respect to . . . any plan or bylaw."  Thus, there
  is no dispute that this provision prescribes the manner of appealing a
  certificate of occupancy issued by the City's zoning administrator.  And
  with the passing of three years between the zoning administrator's issuance
  of the certificates of occupancy and the notice of violation that gives
  rise to this case, the limitations period for appeal has long since
  expired.  The dispositive issue thus becomes whether the certificates of
  occupancy the zoning administrator issued for Four Market Street approved
  the areas the City now alleges are in violation of its zoning ordinance.  
                                                         
       ¶  9.  We conclude that the certificates issued for the Four Market
  Street Building were the final and only certificates required under the
  City's approval process; therefore, they had the effect of approving the
  disputed design features.  Tekram Partners requested and received
  certificates of occupancy from the City for the Four Market Street
  Building.  The disputed design features were in plain view when the City's
  zoning administrator inspected the building.  Although the City maintains
  that the approval stemming from the certificates stops at the walls of the
  Four Market Street Building, it has not demonstrated that a separate
  process existed for gaining approval of the paved areas that are contiguous
  with the northeast corner of the building.

       ¶  10.  Nothing in the findings contradicts our conclusion that the
  certificates of occupancy apply to the entire Four Market Street project,
  including the storage and paved areas.  Tekram Partners have introduced
  valid certificates of occupancy, along with a sketch depicting the storage
  area at issue that was attached to the certificates when they were issued. 
  The City contends that the certificates do not encompass the paved areas or
  the storage area.   In responding to Tekram Partners' argument in the
  environmental court, however, the City failed to adduce any evidence
  indicating how it would otherwise approve of the constructed areas
  immediately surrounding the Four Market Street Building, if not pursuant to
  the certificates of occupancy it issued in December 1997.  

       ¶  11.  The City's assertion that the certificates granted only
  partial approval to the Four Market Street Building lacks sufficient
  support.  The City's claim is based on the fact that each certificate
  included a specific square footage notation, and thus approval was limited
  to the areas encompassed by the notation.  But the environmental court
  found that Tekram Partners believed otherwise, and thus we can infer that
  the administrative officer who issued the certificates gave no indication
  that they did not apply to the project area around the building.  Unless
  the areas surrounding the building were also approved for use by the City,
  approval for the retail space alone would have been of little use because
  the public would have no means to access the businesses.  In the absence of
  evidence that the City had a separate process for granting certificates to
  other aspects of the project beyond the retail space, it is illogical to
  conclude that the certificates did not affect all aspects of the project on
  which use of the retail space depended.  

       ¶  12.  Our conclusion that the three original certificates
  encompassed all project areas, not just the interior retail space, is
  bolstered by the fact that the City has not issued a violation to Tekram
  Partners on the basis that they are using the exterior areas without a
  certificate of occupancy.  Under the City's zoning regulations, it is
  illegal to "use, occupy or permit the use or occupancy of any land or
  structure or part thereof created, erected, changed, converted . . . until
  a certificate of occupancy/compliance is issued therefore by the
  Administrative Officer."  S. Burlington Zoning Regulations § 27.20.  As the
  environmental court's findings indicate, the City has alleged nine
  violations against Tekram Partners.  It is clear that the City has reviewed
  every aspect of the PUD in an attempt to hold Tekram Partners responsible
  for even the most minor and technical violations.  Thus, the City's failure
  to cite Tekram Partners for using and occupying the nonretail project areas
  without a valid certificate of occupancy is a glaring omission that is at
  odds with its claim that the certificates of occupancy issued in December
  1997 did not extend beyond the retail areas of the building.  
        
       ¶  13.  The environmental court concluded that Tekram Partners had
  created the disputed design features without obtaining the necessary
  approval from the City.  But the disputed design features had already been
  constructed when the City issued the certificates of occupancy for Four
  Market Street.  An exclusivity-of-remedy claim is not surmounted by proving
  that disputed design features deviate from an approved plan.  Where §
  4472(a) is at issue, the nature of the disputed design features as they
  pertain to the plan becomes irrelevant.  The question before us is not
  whether a zoning violation exists, but whether the City's attempt to
  enforce zoning violations with respect to the disputed design features is a
  collateral attack on the certificates issued in 1997.  Tekram Partners have
  shown that valid certificates of occupancy for Four Market Street were
  issued by the City, and have asserted that these extend to all aspects of
  the project that were plainly visible to the issuing administrative officer
  at the time of his inspection.  The City's evidence is insufficient to
  overcome this claim.  Thus, we conclude that the City approved of the paved
  areas and the storage area, as built, when it issued the certificates of
  occupancy in 1997.  Though this may have been an error on the
  administrative officer's part, § 4472(a) mandates the procedure for
  correcting such an error.  The City's failure to follow that procedure
  precludes the City from enforcing violations regarding areas it approved
  three years earlier.  Accordingly, we reverse on this issue.

       ¶  14.  We now decide whether Tekram Partners' failure to paint six
  parallel parking spaces located along the northeast corner of the Four
  Market Street Building violated the City's zoning ordinance. (FN4)  We
  review this question of law de novo.  The City alleges this violation based
  on the fact that the approved site plan depicts parking spaces in this
  location, and argues that the parking spaces do not exist until they are
  painted.  Tekram Partners complain, however, that there is nothing on the
  site plan, nor is there any provision of the City's zoning ordinance, that
  requires parking spaces to be painted.  The environmental court found that
  a requirement was implied in the creation of parking spaces.  We affirm on
  this issue because the disputed parking spaces are striped on the approved
  site plan.                                                        

       ¶  15.  Before the City could approve the PUD, Tekram Partners were
  required to submit a site plan that depicted the layout of all buildings
  and parking areas.  S. Burlington Zoning Regulations § 26.651(c).  On March
  12, 1996, after reviewing the site plan, the City's planning commission
  issued final plat approval for the PUD conditioned upon the construction of
  a minimum amount of parking spaces.  See S. Burlington Zoning Regulations §
  26.25 (mandating and establishing minimum requirements for parking
  associated with land development); 24 V.S.A. § 4416 (allowing such
  requirements to be imposed by municipal bylaws).  Once the City approved
  the site plan and permitted commencement of development, Tekram Partners
  were bound to conform its construction to the plan.  See S. Burlington
  Zoning Regulations § 27.10 (requiring an applicant for a zoning permit to
  submit information that demonstrates compliance with the zoning regulations
  prior to the commencement of development).  The approved site plan
  indicates that six parallel parking spaces were to be created along the
  northeast corner of the building at Four Market Street.  

       ¶  16.  There is no dispute that a paved area exists at this location
  for six parallel parking spaces.  But unless and until the spaces are
  painted, motorists will be unaware that this area has been designated for
  use as parking.  More importantly, the disputed parking spaces are striped
  on the site plan.  We conclude that the existence of stripes on the
  approved plan is sufficient to impose a requirement that newly created
  parking spaces must be painted.  Accordingly, we affirm the environmental
  court's decision upholding this violation.
   
       ¶  17.  Lastly, we consider the City's cross-appeal regarding the
  placement of one garbage dumpster along the north side of the 100 Dorset
  Street Building, a separate building in the PUD complex.  This is also
  subject to de novo review.  The approved site plan indicates the location
  of four service areas along the north and east side of the 100 Dorset
  Street Building.  The City alleges that Tekram Partners are in violation of
  the zoning regulations by maintaining one dumpster outside the approved
  service areas, in an area depicted as "Proposed 300SF Storage" on the site
  plan.  The environmental court dismissed the violation finding no reason
  why this area could not be used to locate a dumpster in compliance with the
  approved plan.  On the contrary, the approved plan provides the reason why
  the designated service areas are the only places a dumpster can be located
  in compliance with the plan.  

       ¶  18.  Tekram Partners sought and obtained approval to locate
  dumpsters in the designated service areas and has used the service areas
  exclusively as locations for dumpsters.  That the designated service areas
  are the exclusive locations for dumpsters should not be in question in
  light of Tekram Partners' submission of the PUD site plan indicating the
  service areas, and the City's subsequent approval of their locations. 
  Tekram Partners complain that they have maintained a dumpster in the
  disputed location for over fifteen years, and therefore the City's attempt
  at enforcing a violation is barred by the limitations period in 24 V.S.A. §
  4454 (formerly § 4496).  Section 4454 does not shield Tekram Partners from
  an enforcement action in this case, however, because there was no basis for
  the City to allege a violation until 1996, when the four service areas were
  created and the disputed area was designated as proposed storage. 
  Accordingly, we reverse on this issue.  

       Affirmed in part and reversed in part.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, 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


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


FN1.  In 2004, the Vermont Planning and Development Act, 24 V.S.A. §§ 4301
  et seq., was substantially reorganized, whereby many sections were added,
  repealed, or renumbered.  2003, No. 115 (Adj. Sess.) §§ 4403-4472.  We
  reference the current sections of title 24 herein, which correspond to the
  older versions cited by the parties in their arguments.

FN2.  After construction of the Four Market Street Building was complete,
  Tekram Partners sought the City's approval for changes that had already
  been built.  The changes were minor and the City approved an amended final
  plat in a decision dated June 9, 1998.  This decision is, however,
  technically invalid because the amended final plat was never recorded in
  the city land records.  See 24 V.S.A. § 4463(b) (invalidating approved
  plats that are not recorded in the city land records) (formerly § 4416). 
  After reviewing the arguments of both parties regarding the validity of the
  unrecorded plan, the differences between the plans have not been shown to
  have any bearing on the areas at issue in this case.  Therefore, our
  analysis proceeds according to the development that was approved by the
  City's decision dated March 12, 1996.

FN3.  24 V.S.A. § 4465(b)(2) provides that an interested person may mean,
  among other things, "[t]he municipality that has a plan or bylaw at issue
  in an appeal."

FN4.  If the City has a separate approval process for parking spaces, it was
  not shown below.   Because the six parallel parking spaces at issue here
  are located at the northeast corner of Four Market Street, it would seem
  that § 4472(a) would also bar the City from asserting a violation at this
  late date.  In their certified questions to the environmental court, Tekram
  Partners did not extend the § 4472(a) argument to the six parking spaces. 
  So we will consider their challenge to the striping violations separately.