Appeal of Farrell & Desautels, Inc., 107-76

• Decision Date: 07 February 1978
• Docket Number: No. 107-76,107-76
• Citation: 383 A.2d 619,135 Vt. 614
• Court: Vermont Supreme Court
• Parties: Appeal of FARRELL & DESAUTELS, INC.

Page 619

383 A.2d 619

135 Vt. 614

Appeal of FARRELL & DESAUTELS, INC.

No. 107-76.

Supreme Court of Vermont.

Feb. 7, 1978.

James M. Farrell, Burlington, for plaintiff.

Spencer R. Knapp of Dinse, Allen & Erdmann, Burlington, for defendant.

Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SMITH, J. (Ret.), Specially Assigned.

LARROW, Justice.

Denied a permit to construct a planned unit development of 24 units by the Town of Colchester Zoning Board of Adjustment, appellant corporation seasonably appealed to the Chittenden Superior Court under the provisions of 24 V.S.A. § 4471. A de novo hearing was held in that court with the transcript of evidence taken below stipulated into the record and additional evidence also taken. Although several issues were presented to the trial court, and are briefed here, the paucity of the findings below makes adjudication of all of them in this Court impossible. The findings and judgment order of the superior court purporting to "affirm" the action of the zoning board were addressed only to a single issue. And, were not the parties in agreement with respect to the zoning ordinance provisions relating to this issue, even this point would escape our adjudication, because none of the applicable provisions of the ordinance, or of the municipal plan, were found by the trial court. W. R. Sorg & North Hero House, Inc. v. North Hero Zoning Board of Adjustment, 135 Vt. ---, 378 A.2d 98 (1977); Hambley v. Town of St. Johnsbury, 130 Vt. 204, 290 A.2d 18 (1972). No facts were found and no conclusions of law were stated with respect to the claims of the Town that the proposed unit development (a) would not promote the most appropriate use of the land, (b) would impair the natural and scenic qualities of open lands, (c) would conflict with the town plan, and (d) would exceed the density requirements established by the zoning ordinance. With these contentions unresolved below, because of the court's reliance on a single ground for its "affirmance," we cannot, in this Court, direct the granting of a permit as appellant urges, even though we disagree with the trial court on the single issue it decided. A remand for new trial is required so that all material issues may receive the judicial de novo review to which they were entitled in the first instance. Nor can we, as the Town would have us do, support the findings and conclusions of the Board of Adjustment as not clearly erroneous on the basis of the evidence it took. Such was, of course, the intimation of DeWitt v. Town of Brattleboro Zoning Board of Adjustment, 128 Vt. 313, 262 A.2d 472 (1970), and cases preceding it, but the appeal procedure then in effect did not require trial de novo. That requirement was added to 24 V.S.A. § 4472(a) by amendment effective April 11, 1974, and thus is applicable to this case. The record clearly demonstrates that the hearing was de novo and was so regarded by the parties, as it quite properly had to be. Their stipulation that the transcript of the evidence before the Board of Adjustment might be considered by the court along with the new evidence taken does not change the status of the proceeding.

Extensive review of the evidence below is not required to dispose of the single issue which may fairly be said to be before us, because most of it never found its way into considered findings. Those facts which were found, and are relevant to the issue presented, are as follows. Plaintiff corporation is a real estate developer. In 1972 it owned a parcel of land, with buildings, in Colchester Village, so-called, comprising some 41/2 acres. In that year it applied for and eventually was granted a permit to convert one house into a two-family dwelling and another house into three apartments and a professional office. The findings and order in that case reflect no condition upon use of the land which would "commit" the entire parcel to the authorized use, but the Town contends, and the trial court found, that appellant represented at the hearing that it would not use the 41/2...