Appeal of Newton Enterprises

• Decision Date: 23 January 1998
• Docket Number: No. 97-105,97-105
• Court: Vermont Supreme Court
• Parties: In re Appeal of NEWTON ENTERPRISES.

Page 914

708 A.2d 914

167 Vt. 459

In re Appeal of NEWTON ENTERPRISES.

No. 97-105.

Supreme Court of Vermont.

Jan. 23, 1998.

Motion for Reargument Denied Feb. 12, 1998.

Andrea L. Gallitano of Otterman and Allen, P.C., Barre, for Appellant.

Richard A. Cawley, Bradford, for Appellee.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, Justice.

The Town of Fairlee appeals from a decision of the environmental court that (1) appellee Newton Enterprises, Inc. received a zoning permit by operation of law because a majority of the zoning board of adjustment failed to act on its request to change its non-conforming use and (2) the Town is not entitled to an injunction against appellee's multiple uses. We agree that the permit was not granted by operation of law and remand for consideration of the merits.

Newton Enterprises operates a business, commonly known as Newton's Texaco, on a .9 acre lot at the intersection of U.S. Route 5 and the Lake Morey Road in the Town of Fairlee. The business was in place before the Town adopted a zoning ordinance. According to the Town, the number of uses on this lot have increased since zoning was adopted to the point where there are too many uses for the size of the lot. Newton Enterprises agrees there are multiple uses, but asserts they existed before the Town adopted the zoning ordinance.

The matter came to a head in 1995 when Newton Enterprises received a state permit to add a grill and food preparation to the convenience store it operated on the premises. On receiving notice of the permit, the planning commission decided that Newton Enterprises operated three independent businesses on the site, but did not meet the minimum lot size requirement of the zoning ordinance for this intensity of use. On November 8, 1995, following a meeting between the Fairlee Planning Commission and the owners of Newton Enterprises, the zoning administrator advised Newton Enterprises that it was in violation of the zoning ordinance. The zoning administrator suggested that Newton Enterprises apply for a variance, but also informed it that it could appeal the violation determination to the zoning board. When Newton Enterprises failed to respond, the zoning administrator issued a cease and desist order on January 11, 1996. When Newton Enterprises again failed to respond, the Town, on February 22, 1996, filed an injunction action in the environmental court seeking an injunction against the multiple uses.

The injunction action finally induced Newton Enterprises, on April 3, 1996, to appeal from the zoning administrator's action to the zoning board. The board denied that appeal on April 26, 1996. Newton Enterprises appealed that decision to the environmental court, but also sought zoning-board approval to alter or expand its nonconforming uses from "large & small engine repair, sales & service and convenience store" to "large & small engine repair, sales & service and convenience store with grill and enhanced food preparation and service."

The zoning board held a hearing on Newton Enterprises' request on August 1, 1996. Five of the seven members of the board were present, but one member abstained from participating because of a conflict of interest. Following the hearing, the remaining four members of the board voted to deny the request on a vote of three to one. The board notified Newton Enterprises of the decision on August 5, 1996, and Newton Enterprises appealed this decision to the environmental court.

The environmental court considered cross-motions for summary judgment in each of the three cases before it. The court granted the Town summary judgment in Newton Enterprises' appeal of the zoning administrator's cease and desist order, ruling that the appeal to the zoning board was untimely. It granted summary judgment for Newton Enterprises in its appeal of the decision to deny it approval to modify its multiple uses. The court ruled that the zoning board's vote was ineffective because it was not joined in by a majority of the board. As a result, the court further ruled that the board had failed to take action within forty-five days and Newton Enterprises was entitled to a permit by operation of law pursuant to 24 V.S.A. § 4470(a). Because it ruled that Newton Enterprises was entitled to a permit, it dismissed the Town's request for an injunction, reserving decision on the Town's request for a civil penalty.

On appeal, the Town argues first that the court erred in denying the injunction because Newton Enterprises is collaterally estopped from claiming that it is not in violation of the zoning ordinance because it failed to file a timely appeal from either the noncompliance decision or the cease-and-desist order of the zoning administrator. ¹ We note, at the outset, that this issue involves part of the relief requested in the enforcement action and that the enforcement action is still pending before the environmental court on the Town's request for civil penalties. Thus, there is not yet a final judgment in the enforcement action; nor has the environmental court made the determination required by V.R.C.P. 54(b). Accordingly, we do not have jurisdiction to consider the appeal of the denial of the injunction. See Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988) (final judgment is ordinarily prerequisite to appellate jurisdiction); Szirbik v. R.K. Miles, Inc., 137 Vt. 108, 108, 400 A.2d 1001, 1001 (1979) (when judgment order does not dispose "of all the claims, rights and liabilities of all the parties," there is no appellate jurisdiction absent a Rule 54(b) determination).

We recognize, however, that if the Town's position is correct, the environmental court erred in giving Newton Enterprises a permit. Thus, we consider the Town's position as a reason to reverse the grant of the permit.

The Town relies on Town of Charlotte v. Richmond, 158 Vt. 354, 609 A.2d 638 (1992), where we held that failure to appeal to the zoning board of adjustment from a zoning administrator's decision that a landowner was in violation of the zoning ordinance bound the landowner in a later enforcement action. See id. at 357, 609 A.2d at 640. Thus, the landowner could not raise the affirmative defense of permitted nonconforming use in the enforcement action. See id.; see also Town of Sandgate v. Colehamer, 156 Vt. 77, 85, 589 A.2d 1205, 1210 (1990). We agree with the Town that Newton Enterprises cannot claim that its current uses conform to the zoning ordinance, and therefore are lawful, because it failed to take a timely appeal from either the notice of violation or the cease-and-desist order. We do not agree, however, that failure to appeal from the zoning administrator's notices prevents Newton Enterprises from seeking a permit to make its multiple uses lawful.

The holdings in Richmond and Colehamer are based on 24 V.S.A. § 4472(a), which provides that except in certain circumstances "the exclusive remedy of an interested person with respect to any decision or act taken ... under this chapter ... shall be the appeal to the board of adjustment"; and on § 4472(d), which provides that failure to appeal to the board means that all interested persons are bound by the decision of the administrator and may not contest it directly or indirectly in an enforcement action. See Richmond, 158 Vt. at 356-57, 609 A.2d at 640; Colehamer, 156 Vt. at 85, 589 A.2d at 1210. In this case, the decision of the administrator was that Newton Enterprises was conducting at least two separate uses, restaurant and retail sales, without adequate lot size under the zoning ordinance. The cease-and-desist order alleged that Newton Enterprises was conducting three separate uses, again on a lot that was too small. By failing to appeal these determinations, Newton Enterprises is bound by them.

Newton Enterprises' application to the zoning board asked for action of that board, not the zoning administrator, pursuant to sections of the zoning ordinance that allowed the board to approve alteration, expansion or enlargement of a preexisting, nonconforming use or change of such use. See Fairlee Zoning Ordinance § 4.7(a), (b). Newton Enterprises necessarily accepted as a starting point that it was in violation of the zoning ordinance, but asked for zoning board action to come into compliance. Although it was not the route to compliance suggested by the zoning administrator, the zoning board apparently found it appropriate, but the vote denied the approval on the merits. In any event, it did not directly or indirectly challenge the decisions of the zoning administrator. Neither § 4472(d) nor the decisions in Richmond or Colehamer prevented the zoning board or the environmental court from granting approval that would bring Newton Enterprises' uses into compliance with the zoning ordinance.

The Town next argues that it is inappropriate to...