Coutu v. Town of Cavendish

• Decision Date: 25 February 2011
• Docket Number: No. 10–153.,10–153.
• Citation: 19 A.3d 160,2011 VT 27
• Parties: David COUTUv.TOWN OF CAVENDISH, VERMONT TRANSPORTATION BOARD AND VERMONT AGENCY OF TRANSPORTATION.
• Court: Vermont Supreme Court

19 A.3d 160

2011 VT 27

David COUTU

v.TOWN OF CAVENDISH, VERMONT TRANSPORTATION BOARD AND VERMONT AGENCY OF TRANSPORTATION.

No. 10–153.

Supreme Court of Vermont.

Feb. 25, 2011.

Mark G. Hall and Gavin J. Boyles of Paul Frank + Collins P.C., Burlington, for Plaintiff–Appellant.Matthew T. Birmingham, III, of Birmingham & Moore, P.C., Ludlow, for Defendant–Appellee Town of Cavendish.

William H. Sorrell, Attorney General, and Daniel D. Dutcher, Assistant Attorney General, Montpelier, for Defendant–Appellee Agency of Transportation.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.REIBER, C.J.

¶ 1. Plaintiff, David Coutu, is a helicopter pilot seeking to build a helipad on his property. After the town of Cavendish (Town) would neither grant him approval for the helipad nor send a letter to the Vermont Transportation Board (the Board) explaining that it had no zoning ordinance—and thus no authority upon which to base an approval or denial—plaintiff attempted to apply for a permit directly to the Board. He was denied consideration for lack of municipal approval and so sought a declaratory ruling from the Board as to the scope of the Town's authority in these matters; however, the Secretary of the Board refused a hearing. Before the trial court, plaintiff sought: (1) an injunction directed at the Town requiring it to grant approval of his proposed helipad and to admit that it lacked authority to withhold approval; (2) review of the Board Secretary's refusal of his petition for declaratory ruling; and (3) an injunction directed at the Board requiring it to consider his petition on the merits.

¶ 2. Defendant Town moved to dismiss plaintiff's claim for an injunction against it arguing that the trial court lacked subject matter jurisdiction because plaintiff failed to appeal the Town's decision within 30 days as required by Vermont Rule of Civil Procedure 75. The trial court granted this motion, noting Rule 75 was plaintiff's exclusive means to bring this claim. State defendants (the Board and the Vermont Agency of Transportation) moved to dismiss plaintiff's request for an injunction against the Board for lack of subject matter jurisdiction because plaintiff failed to appeal from the Board's decision that plaintiff's application was administratively incomplete. The trial court granted this motion as well. Finally, State defendants moved to dismiss on the ground that the trial court lacked subject matter jurisdiction over plaintiff's petition for declaratory judgment because the petition “impermissibly s[ought] to overturn the Board's prior adjudication of his rights rather than resolve rights that have not previously been determined.” The trial court did not explicitly take up plaintiff's challenge to the State Board's refusal to hear his petition for declaratory ruling but nevertheless granted defendants' motions to dismiss on all counts.

¶ 3. We agree with the trial court's dismissal of plaintiff's request for an injunction against the Town because Rule 75 was plaintiff's exclusive remedy in that matter, and he did not file an appeal within its limitations period. We thus affirm the grant of summary judgment to the Town. However, we disagree with the trial court's ruling as to the remainder of plaintiff's claims. We reverse and remand the trial court's grant of summary judgment to the State defendants on the portion of plaintiff's complaint seeking review of the Board's refusal of his petition for declaratory ruling and on the portion of plaintiff's complaint seeking an injunction directed at the Board requiring it to consider his motion on the merits.^*

¶ 4. We review the trial court's decision to grant a motion to dismiss de novo, taking all facts alleged in the complaint as true and in the light most favorable to the nonmoving party. Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310.

¶ 5. In order for plaintiff to build a private landing site at his home in Cavendish, he must first obtain a certificate of approval from the Board. 5 V.S.A. § 207. The process for obtaining this approval is laid out in 5 V.S.A. § 207(d). The statute reads in pertinent part: “The application shall be supported by documentation showing that the proposed facility has received municipal approval.” 5 V.S.A. § 207(d). This requirement is further developed by the Board-promulgated Aeronautics Rule 6.01(C), which appears to offer two alternative methods for local government approval:

Local Government Approval. The landing area [must be] in conformance with the requirements of the local government in which situated with respect to land use (zoning) or ha[ve] the approval of the local governing body.

Aeronautics Rule 6.01(C), 8A Code of Vt. Rules 14 010 001–13 (emphasis added). The Town of Cavendish has no zoning ordinance.

¶ 6. Plaintiff has made several attempts to comply with the requirements of 5 V.S.A. § 207(d) and Aeronautics Rule 6.01. In 2008, plaintiff approached defendant Town to request that it send a letter to the Board explaining that it had no zoning ordinance upon which to rule and requesting a hearing so that “the state [could] take it over from there.” Instead, the Town's five-member selectboard referred the matter to the Cavendish Planning Board on September 2, 2008. Nothing in the record establishes conclusively whether the Town's Planning Board had authority to review this matter. Nevertheless, the Planning Board issued a detailed memorandum concluding that the planned landing site was “not in conformance with the Cavendish Town Plan” and was “incompatible with the goals of the town to maintain the rural character of the town and avoid projects that create objectionable noise.” The selectboard discussed the memorandum at several meetings, the final of which was held on October 7, 2008.

¶ 7. The minutes of that meeting reveal a selectboard admittedly confused as to the scope of its authority and duty. One member quoted that portion of 5 V.S.A. § 207(d) which requires “documentation” showing “municipal approval,” and noted that it put the selectmen in “a bit of a quandary,” because the request before them was to send a letter indicating that no ordinance existed upon which they could rule. By their actions, it appears the selectboard concluded that, despite having no zoning ordinance under which they would have proper authority to adjudicate this matter, the statute itself might invest them with some authority. The selectboard members expressed that the subject was “certainly open to interpretation” and proceeded to take a poll on whether they would approve plaintiff's proposed helipad. However, the results of this poll were also ambiguous. Two members took a neutral stance, one felt the selectboard had no authority to deny or approve, but stated that he would deny, one said that he did not approve “at this time” and one voted a straight denial. The selectboard then agreed to send a letter to the Transportation Board “expressing that a poll of the board was taken resulting in a vote of 3 members opposed to the helipad and 2 members remaining neutral.” The letter, sent October 22, 2008, does not mention the concerns raised during the vote by at least one of the selectboard as to the scope of their authority to approve or deny the helipad.

¶ 8. Unable to obtain a letter from the Town either requesting a hearing or indicating that the Town had no zoning ordinance upon which to rule, plaintiff attempted to file his application with the Board without it on October 27, 2008. However, the Vermont Agency of Transportation (Agency), which performs preliminary reviews of these applications, refused to forward the application to the Board, finding it incomplete for lack of municipal approval. In a letter dated September 22, 2009, counsel for the Agency explained that it had requested the Board take no action on plaintiff's application absent proof of municipal approval. According to the Agency's letter,

[u]pon receipt of an application, [the Agency] customarily conducts a site visit and forwards the application, along with its comments, to the Board for a decision. In this case, [the Agency] has not conducted a site inspection, formulated any recommendations on the merits of the proposed helipad, or forwarded [plaintiff's] application to the Board for action because the application was not accompanied by proof of municipal approval.

The Agency explained in its letter that it interpreted Aeronautics Rule 6.01 to mean that “local government may look to its land-use requirements in deciding whether to approve an application or may reach its decision on other grounds to the extent its land-use requirements do not control. The statute and rule effectively grant the Town veto authority over the proposed helipad.” Nothing in the rule or statute sheds light on whether this is the correct interpretation or whether the Agency is the correct body to make it.

¶ 9. On October 28, 2009, in response to the Agency's refusal to forward his application to the Board, plaintiff filed a petition for declaratory ruling with the Transportation Board. In his petition, plaintiff sought “a declaration from the Board concerning whether and how the provisions of 5 V.S.A. § 207(d) and Aeronautics Rule 6.01(C) appl[ied] to his application to operate a helipad for personal use in ... a town with no zoning or other enforceable land-use regulations.” Aeronautics Rule 16.07(b) mandates that “Petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the Vermont Aeronautics Board will be entertained by the Vermont Aeronautics Board.” 8A Code of Vt. Rules 14 010 001–35 (emphasis added). However, the Board does not appear to have “entertained” plaintiff's petition. Rather, the Executive Secretary of the Board responded in a brief letter dated November 16, 2009, stating:

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