Crescent Beach Ass'n, In re
| Decision Date | 07 November 1967 |
| Docket Number | No. 304,304 |
| Court | Vermont Supreme Court |
| Parties | In re CRESCENT BEACH ASSOCIATION, inc. |
Francis R. Peisch, Burlington, for plaintiff.
Latham & Eastman, Burlington, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
On July 24, 1964 Crescent Beach Association, Inc., filed an application which the Burlington Zoning Board of Adjustment for a variance in the zoning regulations to permit the operation of certain beach property as a private beach. The project involved the purchase of two adjoining beach-front lots in a residential development. The Association proposed to operate a private beach in these lots for the benefit of residents of the neighboring area who became members of the Association. The board granted the application with limitations over the objections of certain landowners and they appealed to the Chittenden County Court.
The court on application of the objecting landowners issued a temporary order restraining the appellee from proceeding with its intended development and use of the beach property.
In May 1966, the county court modified but otherwise confirmed the action taken by the zoning board on the application and on August 1, 1966, it dissolved the temporary restraining order. The objecting landowners appealed the action of the lower court to this court. On August 19, 1966, while the appeal was pending, the appellee filed with both supreme and county courts a motion to have damages assessed and costs taxed.
We affirmed the judgment of the lower court by opinion filed December 6, 1966 but appellee's motion was not considered in our disposition of the appeal. See 126 Vt. 140, 224 A.2d 915.
Thereafter, the county court ruled favorably on the motion holding that it had jurisdiction to assess damages and tax costs. The appellant landowners have appealed this ruling of the lower court under 12 V.S.A. § 2386. The certified question is 'whether or not the county court has jurisdiction to hear such a motion.'
The right of appeal from a decision of the board of adjustment to county court is granted by 24 V.S.A. § 3022. This requires a sworn petition setting forth the grounds upon which the decision is claimed to be illegal or unreasonable. The procedure to be followed on such an appeal is governed by 24 V.S.A. § 3023 which provides in part as follows:
Stay of the proceedings does not automatically result by the filing of the petition. Rather application for a stay must be made to the court which, 'after notice to the board and for cause shown,' may grant a restraining order. If the court is not asked to 'stay the proceedings appealed from' notice to the board of adjustment is not required. Appeal of Maurice, 117 Vt. 264, 268, 90 A.2d 440.
The statute, section 3023, supra, provides that costs shall be allowed the prevailing party on appeal in county court. The appellants do not contest this phase of the motion. Costs are to be taxed in the same manner as in civil causes.
The foregoing section does not make any provision for the recovery of damages where the court grants a stay of the proceedings from which an appeal is taken. It is silent in this respect.
The appellee argues there is no question but that the appellee has the right to recover its damages. It claims the county court has the inherent power to assess damages sustained through the issuance of its temporary injunction, citing Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 126 A. 588; Couture v. Lowery, 122 Vt. 505, 177 A.2d 371. Further, it claims 12 V.S.A. § 4447 provides that it shall be entitled to recover its actual damages caused by the wrongful issuing of the injunction.
12 V.S.A. § 4447 provides that when an injunction in chancery is dissolved by final decree in favor of the defendant, he shall be entitled to recover his damages caused by the wrongful issuing of the injunction. This statute delimits the right of recovery of damages by a defendant to cases in chancery. The case at bar is not an action in chancery. The foregoing statute extends no jurisdiction to a law court to assess injunctive damages in a zoning appeal case as is here contended.
Injunction is distinctly an equitable The law is well-settled that the power of the chancery court to enforce remuneration for losses under an injunction is an inherent power of the courts of chancery, because the right to remuneration is made a condition of the issuance of the injunction. And, further, that this inherent power is based upon the principle that the party seeking the injunction has availed himself of the process of the court of chancery and must abide by its orders. Couture v. Lowery, supra; Houghton v. Grimes, 103 Vt. 54, 67, 151 A. 642.
If the court has power to make a payment of damages a condition on which the injunction issues, and to require a bond to secure its performance, it must of necessity have the power to determine the damages. Sturgis v. Knapp, 33 Vt. 486; Spaulding & Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 173, 126 A. 588. The above cases were all chancery cases in which an injunction bond was filed.
The circumstances in the case at bar are much different. The proceeding is initiated by an application to the Zoning Board of Adjustment for a variance in a zoning regulation. Upon favorable action by the board, objecting landowners took an appeal to the county court as provided by statute, section 3023, supra. The procedure set up by the statute provides for a judicial review of the administrative proceedings and the decision of the board. After hearing evidence the court can approve, modify or set aside the board's decision. Where, as here, the board granted the application for a variance, the successful applicant could well have proceeded to act on the board's decision unless there was a stay of the proceedings granted by the court.
The court by its restraining order held the effectiveness of the board's decision in abeyance. This suspension of the granted variance works for the mutual protection of...
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