Galanes v. Town of Brattleboro, 94-77

Citation388 A.2d 406,136 Vt. 235
Decision Date06 June 1978
Docket NumberNo. 94-77,94-77
PartiesJames G. and Philip J. GALANES v. TOWN OF BRATTLEBORO.
CourtUnited States State Supreme Court of Vermont

Crispe & Crispe, Brattleboro, and Alan G. Thompson, Brattleboro (on the brief), for plaintiffs.

John S. Burgess, Brattleboro, for defendant.

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

BARNEY, Chief Justice.

This matter involves zoning in the Town of Brattleboro. It began as a complaint dated December 21, 1973, lodged in the Windham Superior Court attacking, in a declaratory judgment action, the rezoning of an area in the town that affected plaintiffs' property. The trial court, upon a finding that the plaintiffs had not applied for a variance, continued the matter for that purpose. It should be noted that the complaint was filed twenty-one days prior to the effective date of the amended ordinance.

The plaintiffs did apply to the Brattleboro zoning board of adjustment and were denied a variance. Their next step was to report this denial back to the Windham Superior Court. There admittedly was no appeal taken as provided by 24 V.S.A. § 4471, which would entitle the plaintiffs to a trial de novo on the variance issue. Under the rule of Fisher v. Town of Marlboro, 132 Vt. 533, 323 A.2d 577 (1974), this failure would bar any alternative remedy.

However, effective in April, 1974, and applicable to pending cases by its terms, 24 V.S.A. § 4472 was amended. The remedy under that statute is defined in § 4472(b):

The remedy of an interested person with respect to the constitutionality of any one or more of the provisions of any bylaw or development plan shall be governed by the Vermont rules of civil procedure with a de novo trial in the superior court. In such cases hearings before the zoning board of adjustment shall not be required.

Thus, in spite of the defendant's contention that review of the board's action in the variance fails for lack of a proper appeal, any constitutional issues properly raised and preserved for review are here for review. But unless the action of the zoning board in 1973 violated a constitutional right of the plaintiffs put forward in the proceedings, the amendments cannot now be attacked in this litigation.

The plaintiffs have claimed that the ordinance under attack was unconstitutional as it applied to their land. The basis for their complaint, insofar as it relates to a constitutional challenge, is that the amendment to the Brattleboro zoning law which triggered this action amounted to a confiscation of the plaintiffs' property without due process of law and a denial of the equal protection of the laws.

The basis of their complaint relates to an amendment of the Brattleboro zoning ordinances in 1973. The town has had zoning since 1948, and the area was designated "Roadside Commercial" since that time. The zone in question consisted of a strip of land 200 feet deep along either side of Western Avenue for 1,000 feet, in the vicinity of Greenleaf Street. This zone is entirely surrounded by residential area.

"Roadside Commercial", under the old ordinance, would allow the construction of a self-service gasoline station in the zone, as well as uses such as roadside stand, bowling alley, recreational facilities, restaurant, diner, tourist home, motel, inn, automobile sales agency, retail business and similar uses. The plaintiffs bought the property involved, consisting of two residences, in 1970 and 1971. Part of the property was in a residential zone and the remainder within this "Roadside Commercial" zone. The property was to be used for a self-service gasoline station.

In 1973, Brattleboro amended its zoning ordinance. In so doing, this "Roadside Commercial" zone was redesignated "Neighborhood Business". That classification included as business establishments only limited retail trade serving the daily needs of the residents in the immediate neighborhood. Operation of a gasoline service station is prohibited. There is a provision that allows the granting of conditional use permits for certain retail outlets, in the discretion of the zoning board of adjustment.

At the time of the zoning change the businesses in the concerned area included a state liquor store, a roofing company, a gasoline station, a plumbing operation, a wine and cheese shop, a lawnmower business, and a restaurant which has since become a real estate agency office. None of these businesses, except possibly the real estate office would be permitted in the "Neighborhood Business" zone if they were not already there. There also was a parcel specially exempted by the ordinance for the construction of a bank.

The trial court, in holding the ordinance as not properly applicable to these plaintiffs determined that the selectmen did not carry out the directives of 24 V.S.A. § 4302(b). In particular the court concluded that the selectmen did not "adequately consider the peculiar suitability of plaintiffs' lands in relationship to the surrounding area, particularly in view of the various commercial enterprises along Western Avenue in that area, and the substantial reduction in value of the subject property as a direct result of the change." Additionally, the court found that there was no basis for saying that the change in any way benefits the public health, safety, morals and welfare; nor was it established that the reclassification conserves the value of buildings.

In its conclusions the trial court also refers to the previously existing businesses and the small size of the zone. Based on those considerations and the selectmen's previously noted failure to adequately consider the peculiar uses for the property, the court concluded that the zoning change constituted spot zoning and was, as applied to plaintiffs' property, unreasonable and void.

Taking up the spot zoning conclusion first, we look to supporting findings to validate it. But before doing so, a brief discussion of spot zoning and the reasons for its usual condemnation may be helpful.

The phrase "spot zoning" has become almost an epithet in zoning law. To merit that opprobrium, this sort of zoning should single out a small parcel or perhaps even a single lot for a use classification different from the surrounding area and inconsistent with any comprehensive plan, for the benefit of the owner of such property. Jones v. Zoning Board of Adjustment, 32 N.J.Super. 397, 404, 108 A.2d 498 (1954). A similar condemnation falls upon attempts by surrounding land owners to get such a parcel reclassified to avoid a use permitted by existing law. I. R. Anderson, American Law of Zoning, § 5.05, at 244 (1968).

The findings and conclusions refer to the small size of the parcel. However, the rezoning did not change the size of the parcel, which has been in existence for thirty years. The size of the parcel is not properly at issue in this proceeding since it does not result from this rezoning. That is not to say that rezoning of a pre-existing small area could never be condemnable as spot zoning if the purpose of the rezoning was to give a private benefit...

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15 cases
  • In re Letourneau
    • United States
    • Vermont Supreme Court
    • 24 Diciembre 1998
    ...of a public good or benefit of sufficient magnitude to justify the burdening of the affected property." Galanes v. Town of Brattleboro, 136 Vt. 235, 240, 388 A.2d 406, 409 (1978). The zoning regulation must be reasonably related "to public health, safety, morals or general welfare." Id. at ......
  • Mid-Continent Life Ins. Co. v. City of Oklahoma City
    • United States
    • Oklahoma Supreme Court
    • 28 Mayo 1985
    ...v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Motor Lodge, Inc. v. Willingham, 509 P.2d at 903; Galanes v. Town of Brattleboro, 136 Vt. 235, 388 A.2d 406 (1978); Duckworth v. City of Bonney Lake, 91 Wash.2d 19, 586 P.2d 860 (1978).10 McAlester Urban Renewal Authority v. Lorince, ......
  • Smith v. Town of St. Johnsbury
    • United States
    • Vermont Supreme Court
    • 2 Septiembre 1988
    ...130 (1981); see also McLaughry v. Town of Norwich, 140 Vt. 49, 55, 433 A.2d 319, 322 (1981). As we recognized in Galanes v. Town of Brattleboro, 136 Vt. 235, 388 A.2d 406 (1978), one ground for invalidating a zoning classification is that it constitutes spot zoning defined as To merit that ......
  • Town of Sandgate v. Colehamer
    • United States
    • Vermont Supreme Court
    • 30 Noviembre 1990
    ...in superior court might have res judicata effect. This reading of Pike Industries is reinforced by Galanes v. Town of Brattleboro, 136 Vt. 235, 237, 388 A.2d 406, 408 (1978), where the landowners attacked the ordinance in a separate proceeding after failing to appeal from the denial of a va......
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