O'Brien v. Town of Weathersfield Zoning Bd., 357-78

• Decision Date: 16 May 1980
• Docket Number: No. 357-78,357-78
• Citation: 138 Vt. 357,415 A.2d 1060
• Parties: William and Helen O'BRIEN v. TOWN OF WEATHERSFIELD ZONING BOARD et al.
• Court: Vermont Supreme Court

Page 1060

415 A.2d 1060

138 Vt. 357

William and Helen O'BRIEN v. TOWN OF WEATHERSFIELD ZONING BOARD et al.

No. 357-78.

Supreme Court of Vermont.

May 16, 1980.

Jerome I. Meyers, Springfield, for plaintiffs.

Natt L. Divoll, Jr., Bellows Falls, for defendants Osgood.

Richards & Lawlor, P.C., Springfield, for defendants.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and SPRINGER, District Judge, Specially Assigned.

PER CURIAM.

This appeal arose from a dismissal of an attempted appeal to Superior Court. The lower court determined that the procedure followed below did not comply with the provisions of V.R.C.P. 74 so as to give that court jurisdiction. Vermont Division of State Buildings v. Town of Castleton Board of Adjustment, 138 Vt. ---, ---, 415 A.2d 188, 191 (1980); State v. Kennison, 135 Vt. 238, 239, 373 A.2d 556, 557 (1977); Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 241, 260 A.2d 406, 407 (1969). That ruling is affirmed.

The court had granted a temporary restraining order for benefit of the plaintiffs. It was discharged with the dismissal of the action. The defendants Osgood, applicants to the Zoning Board for a construction permit, were the party restrained. They timely moved for a hearing for assessment of damages for the wrongful issuance of the temporary restraining order. Although the motion asserted a claim for recovery based on factual allegations of injury, it was denied without hearing. The Osgoods filed their own valid notice of appeal to this Court on that issue.

It is apparent that the order denying relief for injunctive injury was made without proper hearing. Therefore, that order must be reversed and the cause remanded for hearing on the limited question of whether or not the Osgoods can establish any damage under the law in connection with the improper imposition of the temporary restraining order. 12 V.S.A. § 4447, Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630 (1974).

The dismissal of the appeal of the order of the Zoning Board of Adjustment is affirmed; the order dismissing the motion for a hearing on the issue of damages consequent to the temporary restraining order is reversed, and the cause is remanded to the determination of such damages, if any.