In re Ashline

• Decision Date: 28 March 2003
• Docket Number: No. 02-063.,02-063.
• Citation: 824 A.2d 579
• Parties: In re Appeal of Todd and Terry ASHLINE.
• Court: Vermont Supreme Court

824 A.2d 579

In re Appeal of Todd and Terry ASHLINE.

No. 02-063.

Supreme Court of Vermont.

March 28, 2003.

Gary W. Lange of Swanson & Lange, Burlington, for Appellants.

David A. Barra of Unsworth Powell Barra Orr & Bredice, PLC, Essex Junction, for Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE,¹ JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

¶ 1. In this zoning dispute, appellant-landowners Todd and Terry Ashline ("Landowners") appeal from an order of the environmental court denying Landowners' motion for summary judgment and granting summary judgment in favor of appellee, Town of St. Albans ("Town"). Landowners appealed to the environmental court from a decision of the Town's development review board upholding a notice of violation issued after the denial of Landowners' application for conditional use approval by the Town's zoning board of adjustment ("ZBA" or "Board"). Landowners contend that the environmental court improperly applied the exclusive remedy provisions of 24 V.S.A. § 4472 to dismiss Landowners' questions submitted on appeal, arguing that the ZBA's failure to comply with 24 V.S.A. § 4462(a) resulted in a nondecision from which they could not appeal. Landowners further contend that the Board's failure to issue a decision resulted in deemed approval of the Landowners' application for conditional use approval pursuant to 24 V.S.A. § 4470(a). We affirm.

¶ 2. Landowners hold title in real property on 348 Lake Road in St. Albans, a commercial zoning district. In February 1999, after expanding the physical dimensions of the existing house located on their Lake Road property, Landowners applied for a certificate of occupancy and a certificate of compliance for the as-built construction, indicating that the current use of the property was as a "duplex." In July 1999, the Town's zoning administrator notified Landowners that their property was in violation of the Town's zoning bylaws and that they must apply to the ZBA for conditional use approval or be subject to a notice of violation for using their Lake Road property as a duplex. Landowners then submitted an application to the ZBA to "permit a duplex on Lake Road in the Commercial District."

¶ 3. On August 12, 1999, the ZBA held a public hearing to consider Landowners' application for conditional use approval. Six of the nine members of the Town's ZBA were present. Landowners' motion for "approval for the duplex on this property" received four votes in favor and two opposed. Thus, the motion failed because it did not receive a majority of the nine-member board.

¶ 4. On September 16, 1999, the ZBA issued a written notice of decision denying Landowners' application for conditional use approval. Landowners did not appeal the ZBA's denial of their application, nor did they request a rehearing before additional members of the ZBA. Nearly one year later, on August 4, 2000, the zoning administrator issued Landowners a notice of violation, alleging that Landowners had "continued to utilize [their] property as a duplex despite the [ZBA's] denial" of their application for conditional use approval. Landowners subsequently appealed this notice of violation to the ZBA. At this time, the Town was in the process of replacing their ZBA with a development review board ("DRB"). A hearing before the newly created DRB occurred on October 10, 2000, at which time the DRB upheld the notice of violation.

¶ 5. Landowners then appealed the DRB's decision to the environmental court. On June 14, 2001, the court denied Landowners' motion for summary judgment and granted summary judgment in favor of the Town. The court found that "because [Landowners] did not appeal the ZBA's September 16, 1999 decision ... [that decision] may not now be collaterally attacked in the present proceedings." The court then dismissed that portion of Landowners' appeal concerning the Board's September 1999 decision. Landowners then withdrew their sole remaining question on appeal before the environmental court, and this appeal followed.

¶ 6. Our review of summary judgment is de novo. Springfield Terminal Ry. v. Agency of Transp., 174 Vt. ___, ___, 816 A.2d 448, 452 (2002). In reviewing summary judgment, this Court applies the same standard as the trial court. Bixler v. Bullard, 172 Vt. 53, 57, 769 A.2d 690, 694 (2001). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 57, 769 A.2d at 693-94; V.R.C.P. 56(c). As there are no disputed factual issues, the issue presented in this appeal is solely one of the application of law. See Pownal Dev. Corp. v. Pownal Tanning Co., 171 Vt. 360, 368, 765 A.2d 489, 495 (2000) (where sufficient facts uncontested Court must apply applicable law to those undisputed facts).

¶ 7. The central issue in this appeal concerns the status of the ZBA's September 1999 written denial of Landowners' application for conditional use approval. Landowners assert that the environmental court improperly relied upon the exclusive remedy provisions of 24 V.S.A. § 4472 to dismiss Landowners' appeal. On appeal before this Court, as they did before the environmental court, Landowners argue that § 4472 is inapplicable in this case because (1) the ZBA's denial of Landowners' application for conditional use approval was a statutorily defective decision because the Board failed to act with a majority as required by 24 V.S.A. § 4462(a), and (2) that the ZBA's defective decision resulted in the deemed approval of Landowners' application pursuant to 24 V.S.A. § 4470(a). We disagree.

¶ 8. Section 4472 mandates that "the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act [by the ZBA]... shall be the appeal ... to the environmental court ...." 24 V.S.A. § 4472(a) (emphasis added). Appeals from zoning boards must be taken within thirty days of the relevant ZBA decision. See id. §§ 4471, 4472; V.R.C.P. 75(c) ("complaint shall be filed within 30 days after notice of any action or refusal to act of which review is sought"); V.R.C.P. 76(e) (governing appeals from zoning boards of adjustment to environmental court). Failure to file a timely appeal from a decision of the ZBA deprives the environmental court of jurisdiction to consider that decision. In re Gulli, ___ Vt. ___, ___, 816 A.2d 485, 489 (2002) (mem.) (failure to file timely appeal of development review board decision justified dismissal of submitted questions relating to that decision). In the absence of a timely appeal, interested persons are bound by decisions of the board, and they "shall not thereafter contest, either directly or indirectly, such decision or act ... in any proceeding." 24 V.S.A. § 4472(d); Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142, 564 A.2d 1361, 1363 (1989). This Court strictly construes the "broad and unmistakable language of [§ 4472(d)] to prevent any kind of collateral attack on a zoning decision that has not been properly appealed through the mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.).

¶ 9. The Board issued a written decision in September 1999 denying Landowners' application. In Vermont, a judgment of an adjudicative body remains valid until reversed or annulled, see Davidson v. Davidson, 111 Vt. 24, 29, 9 A.2d 114, 116 (1939), but Landowners took no action to contest this written decision. Landowners did not directly appeal the adverse decision, and, as the environmental court noted, Landowners did not "request that the matter be placed back on the agenda of the ZBA when more members could be present." Instead, Landowners unilaterally determined that the Board's September 1999 decision was issued without legal authority because the ZBA failed to act with the concurrence of the majority of the board as mandated by 24 V.S.A. § 4462(a), and, as a result, did not require direct appeal. According to Landowners, "[t]here is no impermissible collateral attack on a `decision' where there was no valid `decision' by the Zoning Board in the first place."

¶ 10. This Court has previously considered and rejected arguments analogous to those asserted by Landowners. We strictly enforce the exclusivity of remedy provisions contained within § 4472 to require that all zoning contests go through the administrative and appellate review process in a timely fashion. Town of Sandgate v. Colehamer, 156 Vt. 77, 84, 589 A.2d 1205, 1209 (1990). As such, we have consistently held that § 4472 "bars attack on a zoning decision even when the decision is alleged to have been void ab initio." City of S. Burlington, 171 Vt. at 589, 762 A.2d at 1231; Phillips Constr. Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485, 580 A.2d 50, 51 (1990) (plaintiff bound by zoning board's decision under § 4472 for failure to directly appeal the board's actions despite claim that board acted outside scope of its authority); Levy, 152 Vt. at 142, 564 A.2d at 1363-64 (rejecting argument that § 4472 does not apply when "the board's decision was void ab initio"); Graves v. Town of Waitsfield, 130 Vt. 292, 295, 292 A.2d 247, 249 (1972) (§ 4472 precluded town from contesting validity of permit despite lack of administrator's authority to issue permit). While a zoning board's power to act is limited by § 4462(a), as we have recognized in the past, `[i]t does not follow ... that when a board exceeds its power, as plaintiffs claim happened here, its ruling may be challenged at any time in the future. To the contrary, § 4472 implements a policy of repose, even where the board's ruling is ultra vires." Levy, 152 Vt. at 143, 564 A.2d at 1364 (emphasis added).

¶ 11. Most recently in City of South Burlington v. Department of Corrections, we considered an argument asserted by the department of corrections that the department did not need to appeal an adverse...