In re Cowan

In re Cowan (2004-461); 179 Vt. 560; 892 A.2d 207

2005 VT 126

[Filed 13-Dec-2005]

                                 ENTRY ORDER

                                 2005 VT 126

                      SUPREME COURT DOCKET NO. 2004-461

                               JUNE TERM, 2005

  In re Appeal of Isaac Cowan	       }	APPEALED FROM:
                                     }
                                     }
     	                               }	Environmental Court
                                     }	
  	                               }
                                     }	DOCKET NO. 60-4-04 Vtec

                                          Trial Judge: Merideth Wright

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

       ¶  1.  The Town of Richmond appeals from a decision of the Vermont
  Environmental Court granting summary judgment in favor of Isaac Cowan. 
  This case arose from Cowan's request that the zoning administrator revisit
  the determination of the floodplain elevation on his property based on
  engineering surveys Cowan had commissioned.  The administrator declined
  Cowan's request, and the Development Review Board (DRB) upheld the
  administrator's decision.  Cowan appealed to the environmental court, and
  the court granted summary judgment in his favor.  On appeal, the Town
  contends that the court's decision contravenes the principles of finality
  by improperly allowing a collateral attack on the Town's prior unappealed
  zoning decisions.  We affirm, and hold that Cowan is entitled to a new
  determination based on his engineering surveys.

       ¶  2.  Cowan owns a one-acre parcel of land on Snipe Island Road in
  the agricultural/residential district of the Town.  Snipe Island Brook
  bisects the property in a direction roughly parallel to, and 100 feet east
  of, the road, at an elevation approximately 30 feet below the road.  Some
  portion of the property to the west of the brook is located within the
  flood hazard overlay district surrounding the brook.  This district
  consists of "all areas identified as areas of special flood hazard (Zone A)
  on the most current Flood Insurance Rate Maps (FIRM) and on the Flood
  Boundary and Floodway Maps created by the Federal Emergency Management
  Agency (FEMA).  These are areas within the 100-year flood plain."  Town of
  Richmond Zoning Regulations § 6.8.2 (2004) [hereinafter Richmond Zoning
  Regulations]. 
   
       ¶  3.  In November 2000, Cowan applied for a zoning permit to
  construct a retaining wall on his property, and to fill in behind the wall
  and regrade the slope.  Cowan's application stated that the wall would be
  built outside of the floodplain.  The zoning administrator determined the
  location of the floodplain based on the FIRM, and approved the application
  with certain conditions.  Without meeting all of the permit conditions or
  appealing them, Cowan constructed the wall in February 2001. 

       ¶  4.  In August 2001, the zoning administrator sent Cowan a notice
  of violation indicating that the retaining wall was not constructed in
  compliance with the permit conditions and was within the flood hazard
  overlay district.  Cowan did not appeal the notice of violation.  In April
  2002, the Town initiated an enforcement action in the environmental court,
  seeking injunctive and monetary relief for the retaining wall violation. 
  In June 2003, the court granted summary judgment in favor of the Town on
  the issue of the existence of the retaining wall violation, noting that
  Cowan had failed to appeal the notice of violation.  The court, however,
  reserved the question of injunctive relief.  

       ¶  5.  In January 2004, Cowan submitted a request to the zoning
  administrator to revisit the determination of the floodplain elevation on
  his property based on engineering surveys that he had commissioned.  The
  administrator declined Cowan's request, and the DRB upheld the
  administrator's decision.  Cowan appealed to the environmental court, and
  the parties submitted cross-motions for summary judgment. 

       ¶  6.  In September 2004, the court granted summary judgment in
  favor of Cowan.  The court noted that although the zoning regulations
  define the flood hazard overlay district as consisting of floodplain areas
  on the most current FIRM and FEMA maps, the regulations also specifically
  provide that these "[s]urvey maps may be inaccurate and surveying of an
  individual parcel may reveal additional land not within the floodplain." 
  Richmond Zoning Regulations § 6.8.2.  The court thus concluded that the
  zoning administrator's prior determination, based on the FIRM, that the
  retaining wall was within the flood hazard overlay district did not
  preclude Cowan from subsequently commissioning an engineering survey to
  identify additional land not within the floodplain.  Accordingly, the court
  remanded the matter to the DRB for a determination of the extent and
  location of the floodplain based on the engineering surveys.  The court and
  the parties agreed that the earlier enforcement action would remain on
  inactive status pending the DRB decision.  This appeal by the Town
  followed.

       ¶  7.  "In reviewing a summary judgment decision, we use the same
  standard as the trial court, and affirm the granting of a motion for
  summary judgment if there are no genuine issues of material fact and the
  moving party is entitled to judgment as a matter of law." Kingston Pipe
  Indus., Inc. v. Champlain Sprinkler, Inc., 2004 VT 59, ¶ 2, 177 Vt. 484,
  857 A.2d 767 (mem.) (internal quotations omitted); V.R.C.P. 56(c)(3).  We
  defer to the environmental court's interpretation of a zoning regulation
  unless it is clearly erroneous, arbitrary, or capricious.  In re Weeks, 167
  Vt. 551, 554, 712 A.2d 907, 909 (1998).  
        
       ¶  8.  The Town contends that Cowan is precluded from obtaining a
  determination from the DRB of the location of the floodplain based on new
  survey information.  Preclusion principles apply generally to
  administrative law, but they do not apply where they would be incompatible
  with a legislative policy that a tribunal be free to independently
  determine the issue in a subsequent action.  Restatement (Second) of
  Judgments § 83(1) & (4) (1982).  As noted by the environmental court, the
  zoning regulations include two methods by which the Town can determine
  where the floodplain is in relation to a particular parcel.  One method is
  by reference to the most recent FIRM.  Richmond Zoning Regulations § 6.8.3
  ("The Zoning Administrator shall determine whether a parcel falls within
  the Flood Hazard District by referring to the most recent FIRM.").  The
  other method is by surveying the individual parcel, and the regulations
  acknowledge that individual surveying may show that land previously
  considered to be part of the floodplain based on the FIRM is not in fact
  part of the floodplain.  Id. § 6.8.2 ("Survey maps may be inaccurate and
  surveying of an individual parcel may reveal additional land not within the
  floodplain.").  Furthermore, the regulations state that the DRB "may
  obtain, review and reasonably utilize any base flood elevation and any
  floodway data available from federal, state and other source[s] in
  reviewing an application for development in the flood hazard area."  Id. §
  6.8.7(f).  Thus, the regulations allow for a separate determination based
  on individual surveying, and nothing in the regulations places a time limit
  or a closure date on submission of such information or limits the
  submission because of an initial determination based on the FIRM.  Under
  the Town's zoning regulations, consideration of surveying information in a
  subsequent case is not precluded by prior determinations.

       ¶  9.  The Town argues that Cowan is not entitled to review of the
  final determination regarding his original permit to build the retaining
  wall or the subsequent notice of violation, because such review would be an
  improper collateral attack on the final determination.  The Town relies on
  Town of Charlotte v. Richmond, 158 Vt. 354, 357, 609 A.2d 638, 639 (1992)
  and In re Ashline, 2003 VT 30, ¶ 8, 175 Vt. 203, 824 A.2d 579, to argue
  that Cowan cannot collaterally attack a determination from which he has not
  appealed and which has become final.

       ¶  10.  It is undisputed that Cowan is in violation with regard to the
  retaining wall and the floodplain as defined by the original permit, from
  which no appeal was taken.  The environmental court has already addressed
  Cowan's violation through the earlier enforcement action, which is a
  separate matter.  The enforcement action, however, does not preclude Cowan
  from seeking a determination of the elevation of the floodplain for other
  purposes, an option provided in the zoning regulations and not foreclosed
  by the FIRM determination. (FN1)  Cowan is availing himself of the second,
  separate method provided by the regulations to determine the extent of the
  floodplain on his property.  Cowan would not be permitted to use any new
  determination based on his surveys to dispute his violation as to the
  retaining wall.  In re Newton Enters., 167 Vt. 459, 462, 708 A.2d 914, 916
  (1998). 
 
       ¶  11.  The regulations regarding the flood hazard overlay district
  do not prevent Cowan from submitting the results of the engineering
  surveys.  Richmond Zoning Regulations § 6.8.  Therefore, Cowan is entitled
  to a determination of the elevation of the floodplain by the DRB based on
  the engineering surveys.  Accordingly, the decision of the environmental
  court is affirmed and the matter is remanded to the DRB for a determination
  on the merits of the application.

       Affirmed and remanded to the Development Review Board for a
  determination based on the merits. 


                                       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


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                                  Footnotes


FN1.  In August 2003, the zoning administrator approved Cowan's proposal to
  build a single-family dwelling, which included a provision for removing the
  retaining wall.