Carrier, Application of

Citation155 Vt. 152,582 A.2d 110
Decision Date27 July 1990
Docket NumberNo. 88-351,88-351
PartiesIn re Application of Bernard and Suzanne CARRIER.
CourtUnited States State Supreme Court of Vermont

Rexford & Kilmartin, Newport, for appellants.

Robert P. Davison, Jr. and Todd C. Hartsuff of Robert P. Davison, Jr., P.C., Stowe, for appellees.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Richard and Daniel Scott and Bluffside Farms appeal a superior court order granting site plan approval to Bernard and Suzanne Carrier for a nine-lot residential subdivision of a 10.5-acre parcel of land bordering Lake Memphremagog. We affirm.

I.

In July of 1985, shortly after purchasing the 10.5-acre parcel, the Carriers petitioned the Newport Planning Commission for site plan approval for a nine-lot residential subdivision of the land, which is zoned "general residential" but also located within a "shoreland control" district. The Commission granted its approval for lots 1-6, but withheld action on lots 7-9 until the applicants could present an amended permit showing permanent access to those lots. Abutting property owners Bluffside Farms and its owners, the Scotts (hereinafter, collectively, Bluffside Farms), appealed the site plan approval for lots 1-6 to Orleans Superior Court. Three months later, the Commission denied the application for lots 7-9, and the Carriers appealed that decision to superior court. At the same time, the Carriers (1) crossclaimed against the City of Newport, contending that the City had acquired title to Bigelow's Bluff Road--a road adjoining the proposed lots--by dedication and acceptance, and (2) counterclaimed against Bluffside Farms, asserting that Bluffside had no interest in the road since it was a public road and its recent conveyance to Bluffside had been fraudulent and without consideration.

In March of 1986 in a de novo hearing following consolidation of the appeals, the Orleans Superior Court denied the site plan application and dismissed with prejudice all the claims of the parties. The court found, among other things, that (1) the Carriers had not submitted a survey of the property showing the features that existed before excavation and landscaping of the site began; (2) Bigelow's Bluff Road was a public road, but was only twelve to seventeen feet wide and was not designed to provide safe access to the Carrier development; and (3) since Bigelow's Bluff Road was a public road, there was no need to determine whether an interest in the road had been conveyed to Bluffside Farms. The court concluded that the site plan application failed to comply with the Newport Zoning Regulations; specifically, the court stated that the proposed subdivision was not harmonious with existing adjacent uses and did not provide for maximum traffic safety and circulation between the site and the street network.

The Carriers then filed a motion to amend, asking the court to find that Bigelow's Bluff Road is a Newport City street by virtue of dedication and acceptance. The court denied that motion and a subsequent motion for reconsideration, pointing out that the motion to amend was not timely filed and that V.R.C.P. 60 was inapplicable. The court also noted that the use of a road by the public does not, by itself, show acceptance.

In May of 1986, the Carriers made a second attempt at gaining site plan approval. The Planning Commission denied this application, and the Carriers again appealed to the superior court. Bluffside Farms moved to dismiss the appeal, claiming that the second application was not sufficiently different from the first and thus was barred by res judicata. The court denied this motion. Moreover, in response to a Carrier motion, the court determined that the finding in the first appeal that Bigelow's Bluff Road was a public road had not been essential to that judgment and thus was not conclusive for purposes of the second appeal.

On October 26, 1987, the court denied the Carriers' second appeal, insofar as the proposed development did not comply with Newport Zoning Regulation § 352(2) and (3), which requires that the Commission consider "maximum safety of vehicular circulation between the site and the street network" and "adequacy of circulation, parking and loading facilities with particular attention to safety." Although the court found that the "interior road and Bigelow's Bluff Road are functionally inadequate to accommodate the flow of traffic that would arise from the development," it also found that Bigelow's Bluff Road had been dedicated to the public and accepted by the City of Newport, and, therefore, was a public road as required by § 502 of the Newport Zoning Regulations. The court found that the road had been dedicated to public use since the early part of the 20th century, and that city maintenance of the road constituted acceptance.

After several motions from both sides, the court granted the Carriers' motion for a partial retrial. On April 11, 1988, following an evidentiary hearing, the court amended certain findings and conclusions and granted site plan approval based on the fact that the proposed improvements to Bigelow's Bluff Road satisfied § 352(2) and (3) of the Newport Zoning Regulations. The court denied Bluffside Farms' motion for a new trial, and the present appeal followed.

On appeal, Bluffside Farms argues that (1) the court's order from the first litigation, which dismissed all claims of the parties with prejudice, was res judicata concerning the status of Bigelow's Bluff Road; (2) the court was required to deny the Carriers' second site plan application because res judicata and collateral estoppel precluded the court from reconsidering the lack of a survey of preexisting conditions, the forbidden use of stumps for fill, the unsafe condition of Bigelow's Bluff Road, and the lack of a harmonious relationship between proposed uses and existing adjacent uses; and (3) the court, while acting as the Newport Planning Commission in the second litigation, exceeded its subject matter jurisdiction and acted without necessary parties in determining title to Bigelow's Bluff Road.

II.

Bluffside Farms first argues that the dismissal of the Carriers' counterclaim and crossclaim in the first litigation constituted a final determination that Bigelow's Bluff Road is not a public road in satisfaction of § 502 of the Newport Zoning Regulations. We disagree.

Under state law, municipal zoning regulations must require development projects to front on or have access to public roads or waters. 24 V.S.A. § 4406(2). Accordingly, § 502 of the Newport Zoning Regulations provides as follows:

No land development may be permitted on lots which do not either have frontage on a public road or public waters or, with the approval of the Planning Commission, access to such a road or waters by a permanent easement or right-of-way at least twenty feet in width.

In the first litigation, the court stated in several findings that Bigelow's Bluff Road was a public road, noting that the City had maintained it since 1949. In its last finding, it stated,

Bluffside Farms ... claim[s] that a quit-claim [deed] by Rudolph Bigelow on July 6, 1985, conveyed the road to them. However, Bigelow's Bluff Road is a public road. There is no need for the court to make a determination whether the conveyance from Rudolph Bigelow to the Scotts conveyed an interest in the road to the Scotts.

The court nevertheless rejected the Carriers' application and dismissed the claims of the parties, concluding that the site plan failed to meet the Newport Zoning Regulations' objectives of traffic safety and harmony with existing uses.

In no way can this order be construed as a determination that Bigelow's Bluff Road is not a public road as required by § 502. To the contrary, the court's findings clearly state that the road is a public road for purposes of site plan approval, and that the court did not need to adjudicate a claimed conveyance of the road. At best, Bluffside Farms could argue that the court's findings regarding the status of the road were unessential to its judgment that the Carriers' application did not satisfy other related, but distinct, sections of the zoning regulations; in such a case, collateral estoppel would not bar further litigation of the issue. See Turner v. Bragg, 117 Vt. 9, 11-12, 83 A.2d 511, 513 (1951). In either case, however, Bluffside Farms' contention that the first appeal resolved the issue of whether Bigelow's Bluff Road was a public road in its favor is untenable. Moreover, the court's denials of the Carriers' motions following the first appeal were based on the procedural inadequacy of the motions; therefore, the court's statements regarding the dedication and acceptance of Bigelow's Bluff Road were dicta, and did not preclude further consideration of that issue.

III.

Next, Bluffside Farms contends that res judicata and collateral estoppel barred the court in the second litigation from reconsidering the following findings and conclusions made by the court in the first litigation: (1) the proposed development was not in harmony with existing adjacent uses; (2) Bigelow's Bluff Road did not provide safe vehicular access to the proposed development; (3) the Carriers unlawfully used tree stumps for fill; and (4) the Carriers had failed to provide a survey of the preexisting conditions of the land before they began development. We do not agree that the court could not reconsider these matters.

Although res judicata does not apply to administrative proceedings as an inflexible rule of law, see, e.g., Klein v. Colonial Pipeline Co., 55 Md.App. 324, 339, 462 A.2d 546, 555 (1983), the principles of res judicata and collateral estoppel generally apply in zoning cases as in other areas of the law. Kollock v. Sussex County Board of Adjustment, 526 A.2d 569, 572 (Del.Super.Ct.1987). Thus, as a general rule, a zoning board or planning commission "may not entertain a ...

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