Gould v. Town of Monkton

• Decision Date: 29 July 2016
• Docket Number: No. 14–470.,14–470.
• Citation: 150 A.3d 1084
• Court: Vermont Supreme Court
• Parties: Donald GOULD v. TOWN OF MONKTON.

150 A.3d 1084

Donald GOULD

v.TOWN OF MONKTON.

No. 14–470.

Supreme Court of Vermont.

July 29, 2016.

Colin R. Hagan, David J. Shlansky and Kate S. Swartz, Law Clerk (on the Brief) of Champlain Law Group, PLC, Vergennes, for Plaintiff–Appellant.

James F. Carroll and Constance Tryon Pell of English, Carroll & Boe, P.C., Middlebury, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER, C.J.

¶ 1. Landowner appeals three rulings of the superior court's civil division pertaining to the Town of Monkton's new zoning regulations. He argues that the trial court erred by finding (1) that it had no jurisdiction to hear a declaratory judgment action seeking to invalidate the new zoning regulations; (2) that landowner had no due process interest in the process by which zoning regulations were adopted; and (3) that landowner had no due process property interest in the application of the previous zoning regulations. We affirm.

¶ 2. For several years, Monkton planned to replace its 1978 zoning regulations and their 1986 amendments. In February 2011, the Monkton planning commission held its final public hearing on a new set of zoning regulations, which it called the Unified Planning Document (UPD). After approving the UPD, the planning commission presented it to the Monkton selectboard. On August 4, 2011, the selectboard published notice for its first public hearing on the UPD, and the town began reviewing all zoning applications under the UPD rather than under the 1978 regulations. The selectboard then held the first public hearing later in August and its second, final public hearing in January 2012. After approving the UPD, the selectboard submitted it to the Monkton town clerk to be voted on at a special election by town residents.

¶ 3. However, before the town vote was held, the planning commission submitted an updated report on the UPD to the selectboard addressing several issues. In response to this report, the selectboard made revisions to the UPD without notice of a public hearing. These revisions included modifying the requirements for obtaining a certificate of occupancy, increasing the number of lots needed to create a mobile home park, and increasing the required topsoil depth for stormwater facilities. The selectboard then submitted the revised UPD to the Monkton town clerk for the upcoming special election. The town vote was held in February 2012, and the UPD was approved by a vote of 130 in favor, 128 against.

¶ 4. Landowner alleges that the new zoning regulations under the UPD interfere with his long-held development plans and reduce the potential economic return on his property in Monkton. Namely, by increasing the minimum lot size from one acre to two and by increasing the lot frontage minimum, the UPD reduces the number of lots into which landowner can subdivide his property. In January 2012—prior to both the selectboard's approval of the UPD revision and the town vote—landowner had sent a letter to the selectboard objecting to the process through which the selectboard approved the UPD. In the letter, landowner alleged that the selectboard had not fulfilled the statutory public notice requirements for adopting new zoning regulations and that the UPD was therefore invalid.

¶ 5. In March 2013—thirteen months after the town vote adopting the UPD—landowner filed a declaratory judgment action with the civil division of the superior court seeking to invalidate the UPD on the ground that it was enacted in violation of 24 V.S.A. ch. 117. In this action, he repeated the same objections as those in his letter to the selectboard. Specifically, landowner alleged that the Monkton selectboard (1) failed to provide proper notice of public hearings on the UPD by not including its full text or providing a detailed table of its contents; (2) amended the UPD outside the permitted time period and without the required hearings; and (3) disregarded the town plan by adopting the UPD.

¶ 6. In April 2013, Monkton responded to landowner's action through a motion to dismiss, arguing that the civil division did not have subject matter jurisdiction because the Environmental Division has exclusive jurisdiction to hear matters arising under 24 V.S.A. ch. 117, which addresses municipal and regional planning and development. Moreover, in June 2013, the court raised sua sponte the question of whether landowner had standing to pursue his action in light of the fact that he had not yet applied for or been denied a permit. Landowner filed a brief on the issue in which he stated an additional claim premised on a violation of his right to procedural due process. Monkton also filed a brief on the issue of standing and included a response to landowner's constitutional argument.

¶ 7. In May 2014, landowner applied to the Monkton Development Review Board to subdivide his property to create a one-acre lot. Landowner did so in response to the court's question regarding standing, which had suggested that he lacked an injury in fact or that his claim was not ripe without a permit denial. Even so, landowner maintained that he was not required to apply for a permit to have standing. Notably, landowner's application was made in accordance with the 1978 regulations, not with the UPD. Because of this, the Development Review Board rejected landowner's application. Landowner did not appeal this denial to the Environmental Division of the superior court.

¶ 8. In November 2014, after reviewing the parties' briefs on the issue of standing, the trial court granted Monkton's motion to dismiss on three grounds. First, the court held that it had no jurisdiction to hear a declaratory judgment action seeking to invalidate the UPD on statutory grounds because such jurisdiction lies exclusively with the Environmental Division.

Second, it held that there is "no constitutionally protected property interest in demanding compliance with" state-mandated ordinance adoption procedures. Third, it held that landowner had no vested rights to develop his property under the previous zoning regulations, and thus no property interest protected by procedural due process, because he had applied for a permit only after the UPD took effect. Landowner now appeals each of these holdings.

I. Statutory Argument

¶ 9. Landowner first argues that the Legislature did not intend to divest the civil division of its jurisdiction over declaratory judgment actions seeking to invalidate municipal zoning regulations as violations of 24 V.S.A. ch. 117. Here, the critical question raised by landowner is whether 4 V.S.A. § 34 divests the civil division of jurisdiction over his claims that Monkton enacted the UPD in violation of 24 V.S.A. ch. 117. That statute provides that the Environmental Division shall have jurisdiction of, among other things, matters arising under 24 V.S.A. ch. 117. Landowner does not dispute that this statute gives the Environmental Division jurisdiction over claims arising under 24 V.S.A. ch. 117, but argues that the civil division retains concurrent jurisdiction. He points to the civil division's broad general jurisdiction, as well as language in a related statute assigning the family division exclusive jurisdiction over specified matters to support his claim that the Environmental Division's jurisdiction over claims like his is not exclusive but, rather, is concurrent with the civil division. Compare 4 V.S.A. § 33 ("[T]he Family Division shall have exclusive jurisdiction to hear and dispose of [certain enumerated family law proceedings]" (emphasis added)) with 4 V.S.A. § 34 ("[T]he environmental division shall have ... jurisdiction of matters arising under [24 V.S.A. ch. 117]" (emphasis added)). Specifically, he argues that the absence of the term "exclusive jurisdiction" in 4 V.S.A. § 34 indicates that the civil division retains concurrent jurisdiction over matters arising under 24 V.S.A. ch. 117. See Hopkinton Scout Leaders Ass'n v. Town of Guilford, 2004 VT 2, ¶ 8, 176 Vt. 577, 844 A.2d 753 (mem.) ("Where the Legislature includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly.") (citation omitted).

¶ 10. We disagree: through its 2010 reorganization of the superior court, the Legislature not only divested the civil division of exclusive jurisdiction over matters arising under 24 V.S.A. ch. 117 but also granted exclusive jurisdiction to the Environmental Division. When viewed together, the plain language of the statutes governing the jurisdiction of the civil and Environmental Divisions make this clear. First, 4 V.S.A. § 31(1) establishes that the civil division has "original and exclusive jurisdiction of all original civil actions, except as otherwise provided in sections 2, 32, 33, 34, 35, and 1102 of this title." Then, 4 V.S.A. § 34 states an exception to the civil division's general and exclusive jurisdiction. As previously noted, it explicitly details that the "environmental division shall have ... jurisdiction of matters arising under [24 V.S.A. ch. 117]." Finally, 4 V.S.A. § 31(5) clarifies that the civil division has "jurisdiction to hear and dispose of any other matter brought before the Court pursuant to law that is not subject to the jurisdiction of another division." Because 4 V.S.A. § 34 explicitly grants jurisdiction over matters arising under 24 V.S.A. ch. 117 to the Environmental Division, those matters are clearly an exception to the civil division's general jurisdiction under both 4 V.S.A. § 31(1) and 4 V.S.A. § 31(5). The civil division has neither exclusive jurisdiction nor concurrent jurisdiction over matters arising under 24 V.S.A. ch. 117.

¶ 11. This analysis is not changed by the fact that 4 V.S.A. § 33 includes the term "exclusive" in describing the family division's jurisdiction over family law proceedings, while 4 V.S.A. § 34 does not include the term "exclusive" in describing the Environmental Division's jurisdiction...