Flanders Lumber & Bldg. Supply Co. v. Town of Milton

• Decision Date: 14 October 1969
• Docket Number: No. 58-68,58-68
• Citation: 128 Vt. 38,258 A.2d 804
• Court: Vermont Supreme Court
• Parties: FLANDERS LUMBER & BUILDING SUPPLY CO., Inc. and Dana Corporation v. TOWN OF MILTON and Milton Zoning Administrator.

Page 804

258 A.2d 804

128 Vt. 38

FLANDERS LUMBER & BUILDING SUPPLY CO., Inc. and Dana Corporation v. TOWN OF MILTON and Milton Zoning Administrator.

No. 58-68.

Supreme Court of Vermont.

Oct. 14, 1969.

Wick, Dince & Allen, Burlington, for plaintiffs.

Latham & Eastman, Burlington, and Willis E. Higgins, Williston, of counsel, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BERNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a petition to the court of chancery in Chittenden County for a declaratory judgment pursuant to 12 V.S.A. § 4711 et seq. The petition seeks an adjudication of the rights and liabilities of the petitioners and of the petitionees under the zoning ordinance and subdivision ordinance of the Town of Milton, Vermont. The controversy relates to the development for residential purposes of land in the Town of Milton known as Milton Meadows.

A hearing was held before the chancellor on August 12, 1968. Findings of fact, and amendments thereto, were filed. A decree was issued September 25, 1968.

Petitionees have appealed from the decree which enjoined the petitionees from requiring compliance by the petitioners with the Milton subdivision ordinance and also requiring issuance of building permits by the petitionees to petitioners for lots 21, 22, 45 and 114 in the development in question upon the showing of a compliance by the petitioners with the Milton Protective Zoning Ordinance.

As revealed by the briefs of the parties, there appears no dispute as to the following:

On October 25, 1967 the petitioner, Dana Corporation, acquired a parcel of land in the Town of Milton, situate on Town Road No. 50, containing ninety-five acres, more or less. Prior to its purchase Dana Corporation ascertained that the land was zoned under the zoning ordinance of Milton as agricultural. Application was made for a change in the zoning ordinance from agricultural to residential. The application was granted and the property was zoned residential. Under the terms of the Milton Zoning Ordinance then and now in effect, single family dwellings are permitted in residential districts.

The petitioners are interlocking corporations and basically owned by the same persons. The purchase price of the land in question was $71,000.00. An engineering firm was employed to lay out the lots in the proposed development, do the necessary surveying, place lot markers on the corners of the lots, lay out streets, engineer a system of water supply for the development and, in general, perform all necessary engineering services, incident to the development of the land for a housing development. These engineering services cost $15,497.10. A water system was installed at a substantial cost.

Petitioners filed plans showing the lot and road layout for a proposed subdivision on the land with the town clerk of Milton on December 2, 1967. By agreement of the parties, a change was made relating to the roads. The plans were thus approved by the selectmen. Eighteen building permits were issued under the Milton Protective Zoning Ordinance and houses were built on these lots by petitioner, Flanders Lumber & Building Supply Co., Inc.

On February 9, 1968, the petitioner, Flanders Lumber & Building Supply Co., Inc., applied for building permits on lots number 21 and 114 which were rejected by the zoning administrator of Town of Milton, petitionee, on February 13, 1968 as 'not acceptable.' The underlying reason for this refusal, as expressed in a letter from the selectmen to the zoning administrator dated January 3, 1968, was the view that due to the rapid building of homes in the town, further definite planning was required to properly protect the health and welfare of the residents of the town.

On March 3, 1968 the selectmen approved subdivision regulations for submission to the voters at a town meeting. A copy of the proposed regulations was filed in the town clerk's office. At the town meeting held on March 5, 1968, these subdivision regulations were adopted.

On March 7, 1968, the petitioner, Flanders Lumber & Building Supply Co., Inc., applied for building permits on lots number 22 and 45. These permits were rejected by the zoning administrator on March 9, 1968. The rejection pointed out that the subdivision ordinance was in effect, and that approval of the subdivision plan by the commission established by the ordinance would be necessary before building permits could be issued.

Three of the four denials were appealed to the zoning board of adjustment under 24 V.S.A. § 3017, which board affirmed the denials. From this board an appeal lies to the county court, and ultimately here for review. 24 V.S.A. § 3022. Petitioners appealed to the Chittenden County Court on May 10, 1968 from the decision of the zoning board of adjustment which denied building permits for lots numbered 21 and 114. No appeals were taken to the Chittenden County Court from the denial of building permits on lots 22 and 45.

In the midst of this appellate process, the petitioners brought a petition for a writ of mandamus directly to this Court seeking an order to compel the issuance of the permits by the zoning officer of the Town of Milton.

This Court dismissed the petition. Dana Corporation et al. v. Yusitis et al., 127 Vt. 201, 243 A.2d 790. At page 203, 243 A.2d 790 of the opinion this Court observed that it is fundamental that a writ of mandamus, as an extraordinary remedy, is not to operate as a universal alternative to appeal. Also, at page 204, 243 A.2d at page 792, it was stated, '* * * we are not, at this stage, persuaded that we should presume that the prescribed appellate relief is going to be inadequate or unavailable.'

Then followed this petition dated July 2, 1968 for a declaratory judgment. It seeks to test the validity of the Milton Protective Zoning Ordinance and the Milton Subdivision Ordinance insofar as they pertain to the development in question. The petition alleges that the zoning and subdivision ordinances of the Town of Milton are unconstitutional, invalid, and of no legal force and effect.

Petitioners therein request that the zoning administrative officer of the Town of Milton be ordered to issue building permits on lots numbered 21, 22, 45 and 114, and on all subsequent lots upon which application for permits may be made by the petitioners in this development.

The petition initially included as parties defendant, the Village of Milton, and Vincent Yusitis named therein as its zoning administrative officer. On motion before hearing each was dismissed as parties defendant in the case.

The asserted basis for testing the Milton Protective Zoning Ordinance is the denial of building permits numbered 21 and 114 finally appealed to the Chittenden County Court. The reason for testing the subdivision ordinance is the denial of building permits numbered 22 and 45, one of which was not appealed to the Milton Zoning Board of Adjustment. Neither denial was appealed to the Chittenden County Court.

In the findings of fact, as supplemented, the chancellor found that the Milton Protective Zoning Ordinance was validly enacted and of full force and effect.

It also found that no comprehensive plan for the future development of the Town of Milton had been adopted under the provisions of 24 V.S.A. § 2904.

The chancellor further determined that the subdivision ordinance of the Town of Milton to be of no force and effect in that 24 V.S.A. § 2905 had 'not been followed'. This section reads:

§ 2905. Authority; plans

In municipalities which have adopted an official municipal plan as provided in section 2904 of this title, the city council, selectmen, or village trustees, as the case may be, may by ordinance or resolution, authorize and empower the planning commission to approve subdivision or area development plans showing new streets or highways.

The basis for the chancellor's holding that the subdivision ordinance was of no force and effect appears to be that the Town of Milton had no official municipal plan as called for by section 2905, supra.

A related section, 24 V.S.A. § 2906, provides:

§ 2906. Notice; hearing

Before such approval is given, notice of submitting such plan with the planning commission shall be filed by the owner in the town or city clerk's office and a public hearing shall be held by the planning commission and at least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in such municipality.

The chancellor further found that the above section had not been complied with in that notice of the public hearing had been given by publication less than the required fifteen days before the hearing.

These sections were repealed by No. 334 of the Acts of 1967, (Adj. Session) effective March 23, 1968. Since the present applications were submitted to the Milton Zoning Administrator prior to the effective date of No. 334, the prior law applies. 24 V.S.A. Chapter 91.

The findings of fact continue by stating that the zoning ordinance of the Town of Milton requires that an applicant for a building permit meet the health requirements of the Vermont State Department of Health as well as the water system standards of the Public Service Board of the State of Vermont and that such applicant construct streets within the Milton Meadows development in accordance with an agreement with the selectmen of the town. The findings reveal that the petitioners have met each requirement of the Milton Protective Zoning Ordinance relating to building permit on lot No. 114.

The chancellor further found that the applications to construct dwellings on lots 21, 22 and 45 in the Milton Meadows development meet each and every requirement of the zoning ordinance of the Town of Milton, except insofar as they do not meet the above health, water and street requirements.

On September 25, 1968, a decree followed enjoining the zoning administrative officer of the Town of Milton from requiring compliance by...