In re Griffin
| Decision Date | 26 July 2006 |
| Docket Number | No. 05-360.,No. 05-240.,05-240.,05-360. |
| Citation | 904 A.2d 1217,2006 VT 75 |
| Parties | In re Appeal of Robert and Muriel GRIFFIN. |
| Court | Vermont Supreme Court |
¶ 1. The subject of these consolidated appeals is a written decision from the Town of Fayston Zoning Board of Adjustment [ZBA] granting the application for conditional use approval of a home occupation, with conditions, for landowners Robert and Muriel Griffin [the Griffins], as affirmed by the Vermont Environmental Court. Although the landowners obtained the approval they sought, they contest conditions of approval that prohibit storage of business-related materials and construction and excavation equipment on the site. They argue that: (1) the Town of Fayston should be estopped from requiring the conditions because a previous town zoning administrator asserted that no permit was necessary for the materials and equipment; and (2) the ZBA's failure to render a decision within sixty days means that the Griffins' permit application, including the right to store construction material and equipment, is deemed to be approved. We affirm.
¶ 2. The Griffins run a family-owned construction and excavating company, called Griffin & Griffin Excavating, Inc., out of their home at 1909 Airport Road in Fayston. Previously, in 1995, the Griffins' son received a home occupation permit to establish a home office for Griffin & Rutledge Construction Co. at the Griffins' family home. Later, the Griffin & Griffin excavating company was incorporated. The Griffin & Rutledge business stopped when the Griffins' son died. The Griffins did not try to transfer the Griffin & Rutledge permit to the excavating company or obtain a new permit for that business.
¶ 3. The Griffins' home is located on a 3-acre parcel of property in the Rural Residential zoning district. In 2000, they began purchasing equipment for the excavating company. At the time of the ZBA proceedings, they owned two dump trucks, a trailer, two pick-up trucks, a backhoe, a Cat Skidsteer, and a bucket loader. One of the pick-up trucks, the Skidsteer, and the two dump trucks are stored at the Griffins' residence; the rest of the equipment is moved between the construction sites and gravel pits directly, with occasional storage at the residence. The Griffins have also kept relatively small piles of stone and sand at their residence. In late 2001 or early 2002, Muriel Griffin asked the former town zoning administrator if the Griffins needed to apply for their own home occupation permit because the previous permit for Griffin & Rutledge had been issued to their son. The zoning administrator told them they did not need to apply for a new permit. He told them they could store excavating equipment on the site at the residence, but the piles of sand and gravel should be used up and could not be visible to neighbors.
¶ 4. In the spring of 2003, the Griffins applied for and received a permit to construct a garage to be attached to their house by a breezeway in order to store and service their excavation equipment at their residence. They have not built the garage.
¶ 5. In September 2003, the previous zoning administrator left and the present administrator took his place. She conducted a site visit at the Griffin home and spoke with the Griffins about the equipment and materials on the property and their belief that the placement of these materials was covered by the Griffin & Rutledge home occupation permit. In December, she sent the Griffins a letter headed "WARNING concerning home occupation at 1909 Airport Road." The warning stated that the Griffin & Rutledge permit "does not extend to the excavating business of Griffin & Griffin," and therefore that "in order for Griffin & Griffin to operate out of your home, you need your own home occupation permit." It went on to give the Griffins thirty days to submit their application for a home occupation permit or to cease operation.
¶ 6. The Griffins then submitted an application to the ZBA for approval of a home occupation at their existing residence. According to the town zoning ordinance, a home occupation is a "minor portion of dwelling or accessory building by the residents for an occupation which is appropriate to a residential area and does not change the character thereof," Town of Fayston Zoning Ordinance § 3.1, and "may be used for an occupation in accordance with the following regulations, upon Board of Adjustment approval as a conditional use," id. § 5.2. The pertinent regulations include that "[n]o materials or equipment are stored outside the building nor are there any other exterior indications of the home occupation," id. § 5.2.2, and that "[n]o materials or mechanical equipment shall be used which will be detrimental to the residential character of the dwelling or adjoining dwellings because of vibration, noise, dust, smoke, odor, heat, glare, . . . or other undesirable factors," id. § 5.2.3. In accordance with the ordinance, the Griffins submitted to the ZBA an application for a conditional use permit for a home office for the excavating company. The application did not mention the storage of materials or equipment.1
¶ 7. The ZBA considered the Griffins' application at a public hearing held on February 12, 2004. Much of the hearing addressed the company's outdoor activities, the storage on the property of business equipment and materials, and the business hours of operation. On March 11, 2004, the ZBA deliberated on the Griffins' home occupation permit; on March 24, the zoning administrator circulated a draft decision approving the permit with conditions. At its April 8, 2004, meeting, the ZBA unanimously voted to "accept the draft notice of decision concerning Robert and Muriel Griffin['s] application . . . for a home occupation." On May 1, 2004, the ZBA chair signed a written decision and mailed it to the Griffins.
¶ 8. In its decision, the ZBA made findings of fact, which included that "business-related equipment is currently stored outside the home" and that this material is "detrimental to the residential character of the neighborhood." The ZBA also found that "materials, such as stone and sand [are] stored outside the home, which provide an exterior indication of the home occupation" but noted that the Griffins "testified that these materials will be removed shortly." Ultimately, the ZBA approved the home occupation but imposed two conditions on the approval:
1) No business related materials, including sand, stone, gravel, etc., may be stored on the applicant's residential property.
2) No construction or excavation equipment, including but not limited to backhoes, front end loaders, bulldozers, trailers, flatbed trailers, dump trucks, excavators, bobcats, fuel tanks, and skid tanks may be stored or maintained on the applicant's residential property, with the exception of up to two personal/business use trucks under 10,000 lbs. gross vehicle weight (GVW).
¶ 9. The Griffins filed a timely appeal of the ZBA decision to the Environmental Court, claiming that the permit was deemed approved because the ZBA decision was issued beyond the statutory time limit. They also claimed that the Town was equitably estopped from adding to the approval of the permit prohibitions on storage or materials and equipment because the former zoning administrator had approved such storage. At the same time, as an alternative to their appeal, they filed a complaint for a declaratory judgment, alleging that because the permit approval issued more than sixty days after the public hearing, it was in violation of 24 V.S.A. § 4407(2) and, as a result, they possess a deemed-approved permit that allows them to use their property in the same manner as they have since May 2000, including the parking of excavation equipment and storage of materials on the property. The parties filed cross-motions for summary judgment in the appeal; the Griffins again requested the court find the application to have been deemed approved. The Town moved to dismiss the declaratory judgment action.
¶ 10. The Environmental Court granted the Town's motion for summary judgment and denied the Griffins' motion. It found that the permit was not deemed approved and, whether deemed approved or not, it did not allow the Griffins to store equipment or materials on their property. It also dismissed the declaratory judgment action on that basis. Also as part of the summary judgment decision, the court concluded that the ZBA was not estopped from attaching the conditions to the permit approval. Appellants appealed both decisions, which have been consolidated, to this Court.
¶ 11. We start with the summary judgment decisions. "In reviewing a summary judgment decision, we use the same standard as the trial court, and affirm the granting of a motion for summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." In re Cowan, 2005 VT 126, ¶ 7, 179 Vt. ___, 892 A.2d 207 (mem.).
¶ 12. The Griffins' first argument is that the zoning permit, including the right to store equipment and materials on the site, was deemed approved because of the ZBA's tardiness in rendering its decision. The Environmental Court ruled that the decision was reached within the required time limit and "[t]he fact that the written notice of decision was not signed by the chair or sent to Appellants until three weeks later does not trigger the deemed approval remedy."
¶ 13. At the time of the permit application, the ZBA was required to make a decision on an application for conditional use within sixty days of closure of the public hearing. 24 V.S.A. § 4407(2) ().2 The public hearing on the permit application occurred on February 12, 2004, and the...
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