City of South Burlington v. Vermont Elec. Power Co., Inc.

• Decision Date: 29 July 1975
• Docket Number: Nos. 226-74,51-75,s. 226-74
• Citation: 344 A.2d 19,133 Vt. 438
• Parties: CITY OF SOUTH BURLINGTON v. VERMONT ELECTRIC POWER COMPANY, INC. Petition of VERMONT ELECTRIC POWER COMPANY, INC.
• Court: Vermont Supreme Court

Page 19

344 A.2d 19

133 Vt. 438

CITY OF SOUTH BURLINGTON v. VERMONT ELECTRIC POWER COMPANY, INC.

Petition of VERMONT ELECTRIC POWER COMPANY, INC.

Nos. 226-74, 51-75.

Supreme Court of Vermont.

July 29, 1975.

Ewing & Spokes, Burlington, for City of South Burlington.

Donald L. Rushford, and Jeff Taylor, Rutland, for Vermont Electric Power Co.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

LARROW, Justice.

In an unusual procedural setting, two appeals involving the same facts and the same legal questions reach us at the same time but from different tribunals, and with opposite holdings below. And the general subject matter involved is now argued before this Court for the fourth time.

At issue is the construction by Vermont Electric Power Company, Inc. (Velco) of a 115 KV electrical transmission line and substation, largely in the City of South Burlington, from a point in Williston on the existing Essex-Middlebury transmission grid to a point near the Burlington-South Burlington boundary on Queen City Park Road. The urgent need for this facility for reliability of electric service in the City of Burlington is undisputed, and opposition to its construction seems to have been based, at the outset, on location and aesthetic considerations. The instant case revolves upon the contention, advanced by South Burlington and disputed by Velco, that a local zoning permit is required before construction can proceed.

This Court, in In re Vermont Electric Power Co., 131 Vt. 427, 306 A.2d 687 (1973), affirmed in all respects the certification by the Public Service Board, under 30 V.S.A. § 248, of a general route for the proposed facility and the issuance of a certificate of public good, with provision for later submission and approval of detailed plans after opportunity afforded the parties to comment thereon. We held this to be an accepted adminstrative practice. The South Burlington Planning Commission was a party to this action.

In Auclair v. Vermont Electric Power Co., 132 Vt. 519, 323 A.2d 578 (1974), we stayed, pending appeal, a permanent injuection against construction of the proposed facility and the conducting of condemnation proceedings, granted by the trial court on the ground that some of the affected landowners did not receive personal notice of the 30 V.S.A. § 248 proceedings.

We held there was substantial likelihood of reversal.

After hearing the same case in chief we held, not surprisingly, that the § 248 hearing was conceptual in nature, under a planning and policy statute requiring no specific notice to individuals affected, whose rights were not foreclosed thereby. 133 Vt. 22, 26, 27, 329 A.2d 641 (1974). Individual notice we held to be mandated in a condemnation procedure under 30 V.S.A. § 112, but not for a planning and policy hearing under § 248.

The § 248 order of the Board, dated July 25, 1972, an affirmed by this Court in 131 Vt. 427, 306 A.2d 687 (1973), was followed by an order of the Board, in letter form, on December 27, 1973, certifying a specific route subject to stated conditions, and in accordance with detalied plans submitted subsequent to the July 25 order. Thereafter, without applying for a permit under the South Burlington zoning by-laws, which it considered inapplicable, Velco commenced the proposed construction. When controversy arose, Velco filed a declaratory judgment petition with the Public Service Board (our Docket No. 51-75) on October 10, 1974, asking a judgment that South Burlington could not lawfully exercise zoning authority over the proposed construction.

On October 15, 1974, five days later, South Burlington filed a similar action, seeking a contrary declaration and injunctive relief, with the Chittenden Superior Court. (Our Docket No. 226-74). South Burlington later waived its claim to injunctive relief, and won the ensuing rush to judgment when, on October 28, 1974, despite attacks on its jurisdiction and motions for continuance, the Superior Court issued its findings and conclusions, plus a judgment declaring Velco in violation of the South Burlington zoning by-laws in commencing construction without a zoning permit. The conclusions made no reference whatever to Velco's asserted claim that the court lacked subject mater jurisdiction, or its request for continuance pending Public Service Board action, but certainly the actions it took were implicit rejections of Velco's contentions.

On January 30, 1975, the Public Service Board issued its findings, conclusions and order. In substance, it disregarded the Superior Court action, held that the Board had primary jurisdiction, and found that there was no need for Velco to apply for the zoning permit in question.

Appeals followed in each case, with the Board certifying questions for review by this Court. Repetition of these questions is not, we feel, required, because the parties have agreed that identical issues are presented by each appeal. They are (a) which tribunal had, or should have exercised, declaratory judgment jurisdiction, and (b) whether a zoning permit from South Burlington is required for the construction of generation or transmission facilities for which the Board has previously granted a certificate of public good under 30 V.S.A. § 248. A substation is conceded to be a part of the transmission facilities. We address ourselves to these questions as dispositive of each appeal and, hopefully, of the future course of this admittedly needed facility.

Initially, we are unable to agree with Velco's contention that the Superior Court lacked subject matter jurisdiction in the declaratory judgment action brought before it. Velco asserts that South Burlington failed to exhaust its administrative remedies, and therefore had no standing to bring its action. In support of this claim it relies upon Smith v. Highway Board, 117 Vt. 343, 91 A.2d 805 (1952) and Moore v. Gilbert, 132 Vt. 365, 321 A.2d 13 (1974). Smith involved the discharge of a state employee, who sought injunctive relief without pursuing the administrative appeal afforded him by statute. Moore dealt with a judgment of a trial court enjoining putting into effect a rate order of the Public Service Board, and declaring it invalid. Moore involved 30 V.S.A. § 12, containing a strict legislative policy against staying a Board order pending appeal other than by action of the Board itself or the Suprme Court. Smith involved an agency appeal procedure enacted as part of a general statutory scheme. The appeal in question was a clear and mandated administrative remedy, a quality which we do not feel is shared by the purely optional alternative of resort to declaratory judgment. The Superior Court action brought by South Burlington was, we feel, within the court's subject matter jurisdiction. It did not attempt to stay a Board order, because none of the orders in question dealt with the need of a zoning permit. It did not attempt to short-circuit a prescribed administrative procedure, because the resort to declaratory judgment is at best optional, and thus not a 'remedy' within the context of the general pronouncements in Smith. We hold that the Superior Court had subject matter jurisdiction.

However, whether it abused its discretion in the exercise of that jurisdiction is quite another question. At the threshold of such a determination is the question of whether the Public Service Board had subject matter jurisdiction of the petition already pending before it when the Superior Court action was commenced. If it did not, the issue of abuse of discretion by the Superior Court disappears, because the only ground of error asserted is a failure to defer to action by the Board on the petition pending before it. The logical order in which to treat these issues is open to question. But, since we later hold that the Board did have such subject matter jurisdiction, we now consider whether the Superior Court, in recognition of that fact, should have deferred rather than expedited the case before it.

It goes without saying that the spectacle presented by the pending cases, of parties resorting to different tribunals in a contest to secure a speedy and favorable result, is not one calculated to inspire public confidence in the judicial process. Although not specifically applically applicable to these cases, the general policy finds support in V.R.C.P. 13(a), relating to compulsory counterclaims and negating the necessity to assert them if they are already the subject of another pending action. In general, as between two tribunals with concurrent subject matter jurisdiction, the one which first acquires such jurisdiction should exercise it, and the second in point of time should defer to the first. There may be an apparent exception when the second court can afford remedies not available in the first, but this exception would have no application here; only a declaration was sought in each tribunal, the City having waived injunctive relief. And, in any event, the general powers of the Board would have formed the basis for an order to seek zoning approval by Velco, if any reluctance to comply with a Board judgment to that effect had become manifest. Cf. State v. Van Ness, 109 Vt. 392, 199 A. 759 (1938); 20 Am.Jur.2d Court § 128, at 481. We hold that the action of the Superior Court in proceeding to judgment, without honoring Velco's request for continuance pending action by the Public Service Board, was an abuse of discretion as a matter of law.

That the Public Service Board had subject matter jurisdiction of the petition for declaratory judgment presented to it is, we think, implicit in the statutes relating to the question. 3 V.S.A § 808 gives the various state agencies authority to make declaratory rulings 'as to the applicability of any statutory provision or of any rule or order of the agency.' South Burlington argues that this authority is not broad enough to cover a 'zoning case.' We would agree with that general statement, but not with...