In re Jolley Associates

In re Appeal of Jolley Associates (2005-196)

2006 VT 132

[Filed 15-Dec-2006]


       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.


                                 2006 VT 132

                                No. 2005-196

         
  In re Appeal of Jolley Associates              Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 December Term, 2005


  Merideth Wright, J.

  Joseph S. McLean of Stitzel, Page & Fletcher, P.C., Burlington, for
    Appellant.

  Howard J. Seaver of Greene, Seaver & Carver, P.C., Burlington, for
    Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  BURGESS, J.  The Town of Shelburne appeals an Environmental
  Court ruling on summary judgment that allows Jolley Associates ("Jolley")
  to proceed with its application for a proposed gas station and convenience
  store on Route 7 in Shelburne.  The Town argues that the court exceeded its
  jurisdiction and that further consideration of Jolley's proposed
  development should be precluded because its conditional use application was
  already once denied on the merits.  We affirm.
   
       ¶  2.  This is the second appeal arising from Jolley's application
  for this project.  Jolley submitted its conditional use application five
  days before the effective date of a 1997 amendment to the Town's zoning
  scheme that excluded gas stations from the residential-commercial district
  at issue.  The filing included a site plan but no formal site plan
  application.  The Environmental Court ruled that the conditional use
  application, filed after enactment of the amendment but before its
  effective date, should be reviewed under the terms of the new regulation
  rather than the old.  We reversed, holding that a permit applicant enjoyed
  a vested right to review under the rules still in effect at the time of
  application, provided that the application is "validly brought and pursued
  in good faith."  In re Handy, 171 Vt. 336, 351, 764 A.2d 1226, 1239 (2000)
  (internal quotations omitted).  The case was remanded to the Town's Zoning
  Board of Adjustment (ZBA) for consideration of Jolley's application under
  the doctrine of vested rights, subject to review by the Environmental
  Court.  Id. at 351.

   
       ¶  3.  On remand, the ZBA determined that Jolley had no vested right
  to review of its application under the 1995 bylaws that would have allowed
  the proposed use. (FN1)  Jolley again appealed to the Environmental Court. 
  The Environmental Court bifurcated the proceedings to first consider the
  vested rights question and then to proceed, if necessary, with an
  evidentiary hearing on the merits of the application.  In a March 7, 2002
  decision, the court concluded that Jolley's application was "validly
  brought and pursued in good faith" such that Jolley was entitled to have
  its application considered on the merits under the older version of the
  bylaws.  Following a subsequent merits hearing, the Environmental Court
  issued an order on May 3, 2002, denying the conditional use permit on two
  grounds: (1) the proposal improperly included two principal structures-a
  building and separate canopy over the gas pumps-in violation of the Town's
  1995 zoning bylaws, and (2) Jolley failed to show that the proposal would
  not adversely affect all site plan bylaws then in effect-a requirement of
  conditional use approval-including bylaws regarding site plan standards for
  on-site circulation, landscaping and screening, and anticipated glare.  The
  court further stated:
       
    This appeal is concluded and hereby closed on the docket, without
    prejudice to its being reopened upon motion filed within 45 days
    after any further decisions have issued from the Planning
    Commission and/or the ZBA on any further applications filed by
    this applicant for this project; in particular any application . .
    . for site plan approval and any application to the ZBA under §
    210.6. (FN2)   

  PC 31-32.  (Emphasis added.)  Neither party appealed this decision.  

       ¶  4.  In June 2003, Jolley submitted a site plan application to the
  Town zoning administrator.  The zoning administrator denied the application
  on the grounds that the site plan included a gas station, a use no longer
  allowed under the new zoning rules.  Jolley appealed to the ZBA, which
  agreed that Jolley had no vested right to site plan review under the old
  bylaws and upheld the zoning administrator's decision.  Jolley appealed to
  the Environmental Court. 
   
       ¶  5.  The Environmental Court concluded that because Jolley had a
  vested right to its proposed conditional use, it also had a right to site
  plan review of the proposal.  However, unlike conditional use, the site
  plan application would not be reviewed under the old bylaws because Jolley
  had not filed a site plan application before the bylaws were amended.  The
  court ordered that the site plan application be forwarded to the Planning
  Commission with instructions to review the site plan under the applicable
  2003 site plan bylaws.  Implicit in this holding was the court's acceptance
  that Jolley retained a vested right to seek approval of the proposed use
  even after its initial conditional use application had been denied.  The
  court attempted to clarify its earlier denial "without prejudice,"
  explaining that the denial of Jolley's conditional use application at that
  time "was specifically without prejudice to [Jolley]'s submittal of its
  application for site plan approval to the Planning Commission."  Thus,
  although the Town prevailed in the dispute over whether the old bylaws or
  new bylaws would govern site plan review (the Environmental Court ruled
  that the new rules applied), the Town appeals the court's order that the
  site plan application be considered at all.  

       ¶  6.  The Town claims on appeal that the Environmental Court erred
  by: (1) exceeding its jurisdiction in reaching issues beyond Jolley's
  statement of questions, and (2) ordering Jolley's site plan application to
  proceed despite the court's earlier denial of Jolley's conditional use
  application on the merits.  We affirm, concluding that the court did not
  exceed its jurisdiction and that the court's denial of Jolley's conditional
  use application did not extinguish its vested right to application of the
  earlier conditional use bylaws.  

       ¶  7.  We review a grant of summary judgment by applying the same
  standard as the trial court and will affirm if there are no genuine issues
  of material fact and the moving party is entitled to judgment as a matter
  of law.  In re Curtis, 2006 VT 9, ¶ 2, __Vt. __, 896 A.2d 742 (mem.).  The
  court's interpretation of zoning ordinances is reviewed for clear error. 
  Id.  Conclusions of law are reviewed de novo.  In re Beckstrom, 2004 VT 32,
  ¶ 9, 176 Vt. 622, 852 A.2d 561 (mem.). 

                                     I.
   
       ¶  8.  We first consider whether the Environmental Court exceeded
  its jurisdiction by addressing matters beyond the literal language of
  Jolley's stated questions: (1) "Should Jolley's site plan be reviewed under
  the 1995 Bylaws?" and (2) "Does the decision appealed from represent a
  violation of [the Environmental Court's order] dated May 3, 2002?"  The
  Town argues that the Environmental Court should have ended its discussion
  regarding Jolley's site plan application once it determined that the 2003
  site plan bylaws were the applicable standard for review.  According to the
  Town, the court improperly reached the question of whether the zoning
  administrator erred by declining to forward the application to the planning
  commission when that question was not before the court.  We disagree.

       ¶  9.  As a general rule, "the [E]nvironmental [C]ourt is confined to
  the issues raised in the statement of questions filed pursuant to an
  original notice of appeal."   In re Garen, 174 Vt. 151, 156, 807 A.2d 448,
  451 (2002); see also V.R.E.C.P. 5(f) ("appellant may not raise any question
  on the appeal not presented in the statement [of questions]").  The Town's
  reliance on Garen as a limit to the Environmental Court's jurisdiction in
  this matter is misplaced.  Garen addressed, inter alia, whether intervenors
  are prohibited from filing their own statement of issues on appeal.  We
  concluded that, because Vermont Rule of Civil Procedure 76(e)(4)(B)
  expressly limited the filing of the statement of questions to the
  appellant, intervenors are permitted only to argue issues raised by a
  principal party.  Id. (FN3)  The issue here is distinguishable because the
  Environmental Court did not reach distinct issues beyond Jolley's statement
  of questions, but rather addressed matters intrinsic to Jolley's question
  of whether its site plan should be reviewed under the 1995 bylaws.  The
  literal phrasing of the question cannot practically be considered in
  isolation from the zoning adminstrator's action that prompted the appeal. 
  Because the zoning administrator declined to forward the application to the
  planning commission for review on the basis that Jolley had no vested right
  to site plan application review, the question presented necessarily
  encompassed the underlying question of whether Jolley had a such a right. 
  See In re Hignite, 2003 VT 111,   9, 176 Vt. 562, 844 A.2d 735 (mem.)
  (construing statement of questions liberally in favor of party exercising
  appeal rights).  We therefore conclude that the court did not exceed its
  jurisdiction by considering whether Jolley's vested right to conditional
  use included a right to site plan review in answering the question of
  whether Jolley's site plan should be reviewed under the old or new bylaws.
     
                                     II.


       ¶  10.  We turn to the remaining issue of whether the 2002 denial of
  Jolley's conditional use application on the merits extinguished its vested
  right to application of the earlier conditional use bylaws.  The Town
  argues that the Environmental Court's denial of the application "without
  prejudice" was improper and that under the successive application doctrine
  Jolley lost its vested right when its application was denied. 

       ¶  11.  Zoning rights generally vest at the time of application. 
  Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761
  (1981).  We adopted the Smith rule to avoid numerous and protracted
  litigations because, at any given time, permits are in varying stages.  See
  Smith, 140 Vt. at 182, 436 A.2d  at 761 (citing avoidance of "extended
  litigation" and "protracted maneuvering" as reasons for adopting the
  minority rule).  We noted in Smith that this was "the more equitable rule
  in long run application, especially where no amendment [was] pending at the
  time of the application."  Id.  We have cautioned, however, that a
  developer must submit a "proper application" before acquiring a vested
  right.  In re Ross, 151 Vt. 54, 57, 557 A.2d 490, 492 (1989).  There is no
  dispute that Jolley acquired a vested right to consideration of its
  proposed use by filing its February 6, 1997 conditional use application. 
  This case requires us to decide whether Jolley continued to retain this
  vested right after the conditional use application was denied on the merits
  but "without prejudice" to Jolley's ability to submit  further applications
  for the project. 
   
       ¶  12.  Though "res judicata does not apply to administrative
  proceedings as an inflexible rule of law, the principles of res judicata
  and collateral estoppel generally apply in zoning cases as in other areas
  of the law."  In re Carrier, 155 Vt. 152, 157-58, 582 A.2d 110, 113 (1990)
  (citation omitted).  The general rule, then, is that "a zoning board or
  planning commission may not entertain a second application concerning the
  same property after a previous application has been denied, unless a
  substantial change of conditions had occurred or other considerations
  materially affecting the merits of the request have intervened between the
  first and second application."  Id. at 158, 582 A.2d  at 113 (internal
  quotations omitted).  One change in conditions sufficient to allow for
  consideration of a successive application is "when the application has been
  substantially changed so as to respond to objections raised in the original
  application or when the applicant is willing to comply with conditions the
  commission or court is empowered to impose."  Id.  We recently considered
  the significance of the Environmental Court's "denial without prejudice" of
  a zoning application, and concluded that the phrase is no more than an
  expression of the successive application doctrine and confers no greater
  right to reapply than is allowed by that doctrine.  In re Armitage, 2006 VT
  113, ¶ 6, __ Vt. __, __ A.2d __. 
   
       ¶  13.  Jolley argues that the Environmental Court did not outright
  deny its application, but withheld approval pending consideration by the
  town planning commission of its site plan application, in something
  analogous to a remand.  We held in In re Maple Tree Place that a trial
  court was within its discretion to close its proceedings and allow the
  matter to be heard by the proper municipal body before making a final
  judgment.  156 Vt. 494, 498-99, 594 A.2d 404, 406 (1991).  The use of
  remand in zoning cases is now provided for by the recently adopted Rules
  for Environmental Court Proceedings.  See V.R.E.C.P. (5)(i) (providing for
  remand for reconsideration at any time before judgment).  Remand is
  appropriate to return the matter to the Town for further consideration if
  the proposed use or site plan, or both, were incomplete, inadequate or
  subject to a different approach, or if it appeared that the project was
  denied due to an erroneous evaluation.  See Maple Tree Place, 156 Vt. at
  499, 594 A.2d  at 406-07 (citing examples appropriate for remand).  

       ¶  14.  We agree with Jolley that, with respect to compliance with
  site plan bylaws, the Environmental Court's 2002 holding was in essence, if
  not technically, a remand.  First, the Town's bylaws allowed for the filing
  of a conditional use application prior to the filing of a site plan
  application.  It would be incongruous to require that the applicant fully
  litigate its site plan application before it has filed the application. 
  Second, the court anticipated that Jolley would submit a site plan
  application to the ZBA when it stated that its decision was "without
  prejudice to [Jolley's] submittal of its application for site plan approval
  to the Planning Commission."  By this statement, the court indicated that
  it did not intend to finally resolve the issue of site plan compliance. 
  The court stated only that there was insufficient evidence at the present
  time to "make the positive finding that the application will not adversely
  affect" the site plan bylaws.   We thus conclude that the issue of site
  plan compliance was not finally determined by the May 2002 decision.
   
       ¶  15.  We do not similarly view the court's opinion concerning the
  proposed canopy as a withholding of final judgment.  The question of the
  canopy's compliance was simply a legal determination of whether the canopy
  was a "principal structure."  The court concluded that it was but denied
  the application "without prejudice to [Jolley's] proceeding with the
  project without the canopy."  The court went on to state that Jolley "may
  choose whether to proceed with the project with gasoline service and its
  attendant lighting and fire suppression systems contained in a smaller
  housing over each pump island."  Alternatively, the court could have
  granted approval of the application conditioned on removal of the canopy. 
  See 24 V.S.A. § 4464(b)(2) ("In rendering a decision in favor of the
  applicant, the panel may attach additional reasonable conditions and
  safeguards as it deems necessary . . . ."); In re Miller, 170 Vt. 64, 73,
  742 A.2d 1219, 1226 (1999) ("Functioning as the zoning board on appeal, the
  court has broad discretion in fashioning permit conditions in connection
  with conditional use approval.").  In this case the court did not grant
  conditioned approval, perhaps because of the alternative bases for denying
  the application and its apparent belief that a denial without prejudice
  could accomplish the same ends.  While we do not conclude that the denial
  of an application preserves any right to reapply beyond that permitted by
  the successive application doctrine, Armitage, 2006 VT 113, ¶ 6, we
  nevertheless conclude that Jolley retains a vested right to refile a
  conditional use application under the old bylaws. 
   
       ¶  16.  Ordinarily, denial of a zoning application requires that the
  applicant file a new application that substantially revises its proposal to
  "address[] all concerns that prevented approval of the prior application." 
  Armitage, 2006 VT 113, ¶ 4.  The newly filed application is then subject
  to the bylaws in effect at the time of its filing.  Smith, 140 Vt. at
  181-82, 436 A.2d  at 761.  In Ross, we held that the filing of an incomplete
  Act 250 application, later denied, left the applicants with no vested
  right.  151 Vt. at 57, 557 A.2d  at 492.  In so holding, we stated our
  concern that landowners not be able to "easily avoid regulatory
  requirements by submitting a request for a permit based on partial and
  insufficient information."  Id. at 59, 557 A.2d  at 492-93.  Here, by
  contrast, the application was completed and our concern for easy avoidance
  is lessened.  Further, the identified concern that required 
  revision-removal of the canopy-was spelled out by the court; a
  reapplication would not require the sort of substantial revision that
  should dictate a loss of vested rights.  Finally, Jolley could have
  reasonably relied on the court's representation that the denial would not
  prevent it from reapplying without the canopy when it did not appeal that
  decision.  For  these reasons we decline to find that the 2002 denial
  extinguished Jolley's vested right.

       ¶  17.  Having concluded that Jolley retained a vested right to refile
  a conditional use application under the old bylaws, we also conclude, and
  the Town does not dispute on appeal, that Jolley's vested right to
  conditional use includes a right to site plan review under the bylaws in
  effect at the time the site plan application was filed.  Therefore, the
  Environmental Court's order that the site plan application be reviewed by
  the planning commission was not in error. 

       Affirmed.  



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Jolley provided the full opinion of the ZBA in its Supplemental Printed
  Case.  The Town moved to strike the ZBA's opinion along with a letter from
  the zoning administrator also included in the Supplemental Printed Case. 
  Because we need not consider either document to reach our decision, the
  Town's motion to strike is denied as moot.

FN2.  Section 210.6 provides the ZBA authority to extend boundary lines in
  the residential-commercial district by conditional use permit.

FN3.  Rule 76(e)(4)(B), now repealed, has been carried forward in substantial
  part in the 2005 adoption of the Vermont Rules of Environmental Court
  Proceedings.  See V.R.E.C.P. 5(f).