Harvey v. Town of Waitsfield, 5-78

• Decision Date: 14 February 1979
• Docket Number: No. 5-78,5-78
• Citation: 401 A.2d 900,137 Vt. 80
• Parties: Robert B. and Virginia B. HARVEY v. TOWN OF WAITSFIELD.
• Court: Vermont Supreme Court

Page 900

401 A.2d 900

137 Vt. 80

Robert B. and Virginia B. HARVEY v. TOWN OF WAITSFIELD.

No. 5-78.

Supreme Court of Vermont.

Feb. 14, 1979.

Motion for Reargument Denied April 12, 1979.

Burgess & Normand, Ltd., Montpelier (John K. Dunleavy, Montpelier, on brief), for plaintiffs.

Joseph E. Frank and John T. Sartore of Paul, Frank & Collins, Inc., Burlington, for defendant.

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

DALEY, Justice.

The plaintiffs were denied permission, in March, 1975, to house a small used car business in a garage on their property. Their premises are in an area zoned "Agricultural-Residential District." The Waitsfield Zoning Administrator denied the application on the ground that a used car dealership was not a use by right in that zone. The plaintiffs then applied to the Zoning Board of Adjustment for a conditional use permit. This was denied, after public hearing, as not being either a permitted or conditional use under the criteria of the town zoning ordinance for their zoning district.

In May, 1975, the plaintiffs filed this action in Washington Superior Court, seeking damages, injunctive and declaratory relief. The action appears to have two aspects. First, it purports to be an appeal from the denial of the conditional use permit. Second, it also seems to be advanced as an original proceeding. In view of the provisions of 24 V.S.A. § 4472 setting out an appeal to the superior court as the exclusive method of review of actions under a zoning law established in accordance with 24 V.S.A. chapter 117 except for the special provisions with respect to constitutional challenges to a zoning by-law or development plan in 24 V.S.A. § 4472(b) we must initially determine if an appeal was properly taken.

24 V.S.A. § 4471 places appeals from zoning boards of adjustment under V.R.C.P. 74, since the procedures for appeals from state agencies under sections 801 through 816 of Title 3 are to govern. That rule provides that the notice of appeal shall be filed with the clerk or other appropriate officer of the agency in the manner, and within the time, required by V.R.A.P. 3 and V.R.A.P. 4. In this case, no such notice of appeal was filed. Since this Court has many times held that failure to file the notice of appeal within the prescribed time period deprives the tribunal appealed to of jurisdiction over the appeal, Village of Northfield v. Chittenden Trust Co., 128 Vt. 240, 241, 260 A.2d 406 (1969), it goes without saying that an entire failure to file a notice of appeal must also foreclose such review.

Since no appeal to the superior court was accomplished, we must examine the case to see if the issues advanced were properly for its disposition in an original action. Section 4472(b) of Title 24 states:

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.

Assuming for the purposes of this litigation that this action comes within the exception of 24 V.S.A. § 4472(b), the question then to be answered is whether any part of the complaint relates to the constitutionality of any of the provisions of any of the by-laws or development plan of the Waitsfield zoning regulations, and, if so, whether such issues have been appealed.

The plaintiffs' brief advances three issues: The first is based on the denial of their motion for summary judgment. The record reveals that the...