Fisher v. Town of Marlboro
| Decision Date | 02 October 1973 |
| Docket Number | No. 167-72,167-72 |
| Citation | 131 Vt. 534,310 A.2d 119 |
| Court | Vermont Supreme Court |
| Parties | Kenneth V. and Virginia R. FISHER v. TOWN OF MARLBORO et al. |
Kenneth V. Fisher, Jr., Brattleboro, for plaintiff.
Kristensen, Cummings & Price, Brattleboro, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
The plaintiff in this case sought declaratory relief in connection with the zoning requirements of the Town of Marlboro. The lower court granted the hearing, made findings of fact, and issued a judgment order denying relief. We must affirm the result.
The proceedings below dealt with the substantive questions raised in the petition. The plaintiff based his application for declaratory relief on the doctrines expressed in Flanders Lumber & Bldg. Supply v. Town of Milton, 128 Vt. 38, 44, 258 A.2d 804. That opinion stated that judicial economy can justify the resort to declaratory judgment proceedings even before resort to administrative remedies.
Since the decision in that case, and before the institution of this one, the legislature has seen fit to change and restrict appellate review in zoning cases. 24 V.S.A. § 4472; Appeal of Rhodes, 131 Vt. --, 305 A.2d 591 (1973). The present statutory directive limits the remedy of any interested person with respect to any by-law (which, under 24 V.S.A. § 4401(b)(1), includes zoning regulations) to the appeal to the board of adjustment under 24 V.S.A. § 4464 and the appeal from there to the county court under § 4471.
The remedy of declaratory judgment derives from the enactment of the Uniform Declaratory Judgments Act, and is a legislative extension of the power of the courts to grant relief. Murray v. Cartmell's Exr., 118 Vt. 178, 180, 102 A.2d 853. The positive language of 24 V.S.A. § 4472, as a subsequent enactment, can only be viewed as a restrictive amendment to the right of a party to avail himself of the remedy of declaratory judgment. However liberal the construction, however strong the demand to carry out the remedial purposes of the act, the restriction placed on the legal relief available in zoning cases must be observed. Solely on this basis must the judgment in favor of the defendant be affirmed as a dismissal of this action.
Judgment affirmed.
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Vermont Division of State Bldgs. v. Town of Castleton Bd. of Adjustment
...388 A.2d 430, 431 (1978). The superior court is without jurisdiction to hear such actions. 24 V.S.A. § 4472(d); Fisher v. Town of Marlboro, 131 Vt. 534, 535, 310 A.2d 119 (1973). Harvey also does not turn upon the fact that the notice of appeal was denominated as a complaint. This Court con......
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McGlynn v. Town of Woodbury
...406, 408 (1978); Shortle v. Rutland Zoning Board of Adjustment, 136 Vt. 202, 203, 388 A.2d 430, 431 (1978); Fisher v. Town of Marlboro, 131 Vt. 534, 535-36, 310 A.2d 119, 119 (1973). The Potter case did not address the jurisdictional issue presented in this case. * The appealing party in Po......
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Town of Bennington v. Hanson-Walbridge Funeral Home, Inc.
...that the Town does not here contest the building permit in any aspect. It concedes it to be in force and effect. Fisher v. Town of Marlboro, 131 Vt. 534, 310 A.2d 119 (1973). Its only claim is that the bounds of permitted use have been exceeded. Another answer is that § 4472 has no applicat......
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Preseault v. Wheel
...24, and not in Chapter 91, 24 V.S.A. § 4472 negates neither our jurisdiction nor that of the county court. Cf. Fisher v. Town of Marlboro, 131 Vt. --, 310 A.2d 119 (1973). In his petition, the plaintiff asked the court below to find that 24 V.S.A. § 4443(c) was inapplicable. The court below......