Hinsdale v. Village of Essex Junction

• Decision Date: 16 February 1990
• Docket Number: No. 87-335,87-335
• Citation: 153 Vt. 618,572 A.2d 925
• Parties: Clark W. HINSDALE, Jr. v. VILLAGE OF ESSEX JUNCTION.
• Court: Vermont Supreme Court

Page 925

572 A.2d 925

153 Vt. 618

Clark W. HINSDALE, Jr. v. VILLAGE OF ESSEX JUNCTION.

No. 87-335.

Supreme Court of Vermont.

Feb. 16, 1990.

William R. Marks, Burlington, for plaintiff-appellant.

Spokes, Foley & Stitzel, Burlington, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Plaintiff, Clark Hinsdale, Jr., is the owner of a building which is located in the Village of Essex Junction, the defendant in this action. He was denied a zoning permit and appealed to the zoning board of adjustment, which also denied the permit. Although it notified plaintiff of its decision at the close of the hearing, the board did not send him a written copy of the decision within the forty-five-day time limit required by statute. When plaintiff treated the tardy action as approval and went forward with the requested use, defendant threatened criminal prosecution. This led to the present declaratory judgment action, in which plaintiff seeks a declaration that he acquired a zoning permit by operation of law and that the zoning board should have given him a permit. The superior court found for defendant, principally because plaintiff failed to appeal the zoning board denial, and plaintiff appealed to this Court. We affirm.

The relevant facts began in 1979, when plaintiff purchased the building in question. At that time, the village zoning ordinance allowed commercial uses of the building. Plaintiff used the majority of the first-floor space for commercial storage and his own office. On May 1, 1979, he rented 1,500 square feet for use as a photographer's studio, and this use continued until the tenant vacated on June 1, 1982. Meanwhile, defendant rezoned the area, placing the building in a residential zone that does not allow commercial uses.

Plaintiff advertised continuously for a new tenant until he found one in November of 1984. The new tenant proposed to use the space for retail and office purposes and applied to the village zoning administrator for a permit to do so. In December of 1984, the zoning administrator refused the permit because the use was not permitted in the zone. In response to the tenant's claim that the use was permitted as a preexisting, nonconforming use, the zoning administrator found that the proposed use improperly enlarged the prior photographic studio use and that the former use had been discontinued for over six months, thus forfeiting the preexisting, nonconforming use status under the ordinance.

Plaintiff appealed to the village zoning board of adjustment, which held a public hearing on January 15, 1985. After the hearing, the board took a vote and denied the permit, essentially for the reasons specified by the zoning administrator. The decision was announced orally to both plaintiff and the tenant at that time. The board signed a notice of decision on February 19, 1985, but did not mail it to plaintiff until March 9, 1985. Plaintiff received it on March 11, 1985.

After plaintiff became aware of the board's decision at the hearing on January 15th, he applied for a variance. That application was heard and decided on February 19, 1985 and denied orally at that time. The negative written decision was signed on March 19, 1985 and sent to plaintiff on March 22, 1985.

Plaintiff took the position that the tenant's original permit application, based on preexisting, nonconforming use status, had been granted by operation of law because the written decision was not mailed to him within the time specified in the statute. He went forward with the proposed use without appealing either of the zoning board decisions. This led to a threat by the village to bring a criminal action based on the violation of the zoning ordinance. To resolve the dispute, plaintiff sought a declaratory judgment in December of 1985. The parties stipulated to most of the relevant facts and plaintiff moved for summary judgment, arguing: (1) because the board failed to notify him of the denial of the permit within the statutory period, the permit must be deemed granted; (2) plaintiff was entitled to preexisting, nonconforming use status as a matter of law; (3) defendant's actions constituted a taking of plaintiff's property without due process of law; and (4) defendant's actions violated Chapter I, Article 2 of the Vermont Constitution. The trial court denied plaintiff's motion and granted judgment for defendant, primarily because it found that the suit was barred by plaintiff's failure to take a timely appeal from the zoning board action. The court also addressed plaintiff's constitutional claims and found them unmeritorious.

The trial court did not reach the merits of plaintiff's first issue, holding instead that plaintiff was precluded from raising it because he failed to appeal the zoning board's decision that he was not entitled to a permit as a preexisting, nonconforming use. We reach the same result, but do so on the merits of plaintiff's claim. ^* Plaintiff's claim is based on the decisional time limit statute, 24 V.S.A. § 4470(a), which provides:

(a) The board shall render its decision, which shall include findings of fact, within forty-five days after completing the hearing, and shall within that period send to the appellant, by certified mail, a copy of the decision. Copies of the decision shall also be mailed to every person or body appearing and having been heard at the hearing, and a copy thereof shall be filed with the administrative officer and the clerk of the municipality as a part of the public records thereof. If the board does not render its decision within the period prescribed by this chapter, the board shall be deemed to have rendered a decision in favor of the appellant and granted the relief requested by him on the last day of such period.

Plaintiff's position is that this statute granted him a permit on the forty-sixth day after the hearing and he had no obligation to appeal the later adverse ruling.

It is important to emphasize the facts of this case. The board took its vote after the public hearing on January 15, 1985 and announced it to plaintiff. It signed its decision and findings of fact on February 19, 1985, well within the forty-five-day period established by 24 V.S.A. § 4470(a). The sole act that occurred outside the forty-five-day period was the mailing of the decision to plaintiff.

The deemed-approval remedy of § 4470(a) applies when the board does not "render" its decision within the forty-five-day approval period. Plaintiff relies upon Glabach v. Sardelli, 132 Vt. 490, 495, 321 A.2d 1, 5 (1974), for the proposition that the decision is not rendered until it is mailed to him. Glabach involved a factual pattern with some similarities to that present in this case, but also with some differences. In Glabach, the hearing was held on February 20, 1973, but the board did not vote on the appeal until March 13, 1973. The landowner had no notice of that vote until May 10, 1973 when the town's attorney notified the landowner's attorney. In response to the landowner's claim that the permit was approved by the failure of the board to act within forty-five days after the hearing, the town argued that the board's decision had been "rendered" on March 13, 1973, within the statutory time period.

The Court rejected the town's argument, holding instead that the zoning board decision was rendered only when notice of it was sent to the landowner. The language of the opinion that directly supports plaintiff's position states:

[The statute] places the burden on a zoning board of adjustment not only to make a decision within the time provided but also to notify the appellant in writing of the decision within forty-five days from the time the appeal is heard. Only when both decision and notification are made within the forty-five day period is the judgment rendered. Further, if judgment is not rendered, as provided, the Legislature has plainly stated that the board shall have been deemed to have made a decision in favor of the appellant.

132 Vt. at 495, 321 A.2d at 5. We agree with plaintiff that under this language his permit would be deemed approved in this case. We believe, however, that the Glabach language sweeps too broadly. We reaffirm the Glabach holding but narrow the rationale to better accord with the statutory language.

In Glabach, the landowner received no notice of the board's action within the forty-five-day period: The board's only decision was an oral vote, memorialized in the minutes of the meeting. It clearly did not qualify as a final decision. See Nash v. Warren Zoning Board of Adjustment, 153 Vt. 108, ---, 569 A.2d 447, 451 (1989). It is clear that an oral vote alone, without some form of notice to the applicant, does not constitute the act of rendering a decision under § 4470(a).

As plaintiff emphasizes, however, Glabach went further and stated that a decision is not rendered until written notice of it is given to the landowner. For three reasons, we find that construction of § 4470(a) to be too broad.

First, it is inconsistent with the wording of the statute. In construing a statute, our first responsibility is to give effect to the plain meaning of the words chosen by the Legislature. See, e.g., State v. Saari, 152 Vt. 510, ---, 568 A.2d 344, 350 (1989). The wording chosen by the Legislature clearly separates the giving of written notice from the rendering of the decision. The first sentence of § 4470(a) states that the "board shall render its decision ... and shall ... send to the appellant, by certified mail, a copy of the decision." It is directly inconsistent with the statutory language to say that a decision has not been rendered until it is sent to the landowner as required by § 4470(a). Since the deemed-approval remedy is applicable only when the board fails to "render its decision within the period prescribed by this chapter," the statute cannot be read to deem approval on...