In re Handy

• Decision Date: 17 November 2000
• Docket Number: No. 98-015, No. 98-016.
• Citation: 764 A.2d 1226
• Parties: In re Paul L. HANDY (Town of Shelburne, Appellant). In re Jolley Associates.
• Court: Vermont Supreme Court

764 A.2d 1226

In re Paul L. HANDY (Town of Shelburne, Appellant).

In re Jolley Associates.

Nos. 98-015, 98-016.

Supreme Court of Vermont.

November 17, 2000.

Joseph S. McLean, Steven F. Stitzel, Stitzel, Page & Fletcher, P.C., Burlington, for Town of Shelburne.

Howard J. Seaver, Greene & Seaver, Inc., Burlington, for appellant Jolley Associates.

Douglas K. Riley, Lisman & Lisman, Burlington, for appellee Handy.

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

DOOLEY, J.

In these consolidated appeals, we consider the status of zoning permit applications filed during what we will refer to as the "pendency period" — the period from the date that public notice is given of proposed amended zoning bylaws and the date that the bylaws come into effect. At issue is the meaning of 24 V.S.A. § 4443(d),¹ which provides that, following public notice of a proposed zoning bylaw amendment, a town administrator may not issue a permit regarding that amendment during the period between notice and the effective date of the adoption or rejection of the amendment, except with the written consent of the town's legislative body after public notice and hearing. In construing § 4443(d), the environmental court bifurcated the pendency period, ruling that (1) persons filing permit applications after public notice but before the town's adoption of amended zoning bylaws may elect to have their applications reviewed under the old bylaws or petition the town's legislative body to consent to review of the applications under the amended bylaws; and (2) applications filed after the town's adoption, but before the effective date of the adoption, of amended bylaws must be considered under the new bylaws. We find no basis in the plain language of the statute to support the court's construction of § 4443(d), but conclude that the statute is unconstitutional because it gives town selectboards unbridled discretion to decide whether to review applications under the old or new zoning bylaws, with no standards to limit the exercise of that discretion. Accordingly, we conclude that the permit applications in both cases must be considered under our vested rights rule. We affirm the court's decision in the Handy case, albeit on different grounds, and vacate the decision in Jolley and remand for further proceedings consistent with this decision.

I.

The relevant procedural and historical facts are, for the most part, undisputed in both appeals. On December 3, 1996, the Town of Shelburne published notice of a December 19 planning commission hearing to consider certain proposed zoning bylaw amendments, including amendments that would eliminate gas stations and fast-food restaurants as conditional uses in the Town's residential-commercial zone.² At the December 19 hearing, the planning commission voted to recommend that the Town selectboard adopt the proposed amendments. On January 5, 1997, the selectboard published notice of a January 21 public hearing to consider the proposed amendments. At the January 21 hearing, the selectboard adopted the amended bylaws. The Town's adoption of the bylaws became effective twenty-one days later, on February 11. 24 V.S.A. § 4404(c) (bylaw amendment shall be effective twenty-one days after its adoption).

With respect to the Handy case, in the summer of 1996 Paul Handy filed applications seeking, among other things, a permit to add gasoline pumps to a convenience store on his property in the Town's residential-commercial zone. The Town denied the applications in August 1996 for reasons unrelated to the gasoline pumps, which were permitted as a conditional use under the zoning bylaws in effect at the time. Handy did not appeal the Town's decision, but instead modified his site plan and revised the applications to respond to the concerns that had led to their denial.

On January 13, 1997, after the Town published notice of the proposed amended bylaws, but eight days before they were adopted, Handy submitted his revised applications seeking conditional use and variance approval for his proposed project. On February 10, the day before the new bylaws became effective, the selectboard held a public hearing under § 4443(d) to consider whether to give its written consent for the zoning administrator to act on Handy's revised applications under the old bylaws. Following the hearing, the selectboard issued a written decision denying its consent for Handy to proceed under the old bylaws.

On appeal, the environmental court concluded that (1) this Court's holding in Smith v. Winhall Planning Commission, 140 Vt. 178, 181-82, 436 A.2d 760, 761-62 (1981), entitles applicants such as Handy to have their good-faith applications considered under the bylaws in effect at the time that they were filed; and (2) when applications are filed prior to the selectboard's approval of proposed amended bylaws. § 4443(d) is triggered only if the applicants elect to request the selectboard to consider their applications under the new bylaws. Because Handy did not request consideration under the new bylaws, and because he filed his applications before the selectboard approved those bylaws, the court ruled that he had a right to have his applications considered under the old bylaws, as long as the applications were complete and filed in good faith. The court remanded the matter to the zoning board of adjustment (ZBA) to consider the applications for conditional-use or variance approval under the old zoning bylaws, and then, if necessary, to the selectboard, apparently to consider whether the applications were complete and filed in good faith. The Town appeals.

With respect to the Jolley case, in April 1996 Jolley Associates (Jolley) contracted to purchase property in the Town's residential-commercial zone, intending to construct a combination gas station, convenience store, and fast-food restaurant. Obtaining the necessary zoning permits was one of the contract contingencies. Under the zoning bylaws in effect at the time, all three of Jolley's intended uses were allowed as conditional uses in the residential-commercial zone. In September 1996, Jolley met with town officials to discuss its proposed project.

On February 6, 1997, sixteen days after the Town adopted the amended bylaws, but five days before those amendments became effective, Jolley submitted conditional-use applications for his project under the old bylaws. Following a public hearing pursuant to § 4443(d), the selectboard denied Jolley's request for consent to proceed with its applications under the old bylaws. On appeal, the environmental court concluded that the right of applicants to have their permit applications considered under the zoning bylaws in effect at the time the applications are filed does not extend to situations in which the applications are filed between the adoption and the effective date of new bylaws. According to the court, applications filed after the adoption of amended bylaws must be considered under the new bylaws. Because Jolley had filed its applications after the Town's adoption of the amended bylaws, the court ruled that they must be considered under the new bylaws. The court remanded the matter to the ZBA to consider the applications for conditional use or variance approval, and then, if necessary, to the selectboard for consideration under § 4443(d). Jolley appeals, and the Town cross-appeals.³

In the Handy case, appellant Town of Shelburne argues that the environmental court erred in ruling that applicants seeking zoning permits after public notice but before adoption of proposed amended bylaws may elect to seek the consent of a town's legislative body under § 4443(d). In the Jolley case, appellant Jolley argues that the plain language of § 4443(d) does not support the environmental court's distinct treatment of applications filed between public notice and adoption of amended bylaws, and those filed between the adoption and effective date of amended bylaws. According to Jolley, either its applications should be considered under the old bylaws based on the environmental court's reasoning in the Handy case, or the environmental court should consider, upon de novo review, whether the circumstances and equities surrounding its applications require review of the applications under the old bylaws. As appellee and cross-appellant in the Jolley case, the Town contends that any review of the selectboard's decision under § 4443(d) should be on the record, giving deference to the selectboard's broad discretion, and further that the record before this Court supports the selectboard's decision. Both Jolley and the Town agree that the environmental court erred in concluding that applicants must submit their conditional-use applications to the ZBA before seeking the selectboard's consent to proceed under the old bylaws pursuant to § 4443(d).

II.

We first consider the environmental court's construction of § 4443(d). The statute provides as follows:

If a public notice⁴ is issued under this chapter with respect to the adoption or amendment of a bylaw, or an amendment to an ordinance adopted under prior enabling laws, the administrative officer shall not issue any permit under section (a)(1) of this section, if the permit is with regard to the bylaw, or amendment to a bylaw or ordinance, for the period commencing upon the date of that public notice and ending upon the effective date of the adoption or rejection of the bylaw or amendment, except with the written consent of the legislative body of the municipality given after public hearing upon public notice.

24 V.S.A. § 4443(d). We find nothing in the plain language of § 4443(d) to support either the environmental court's distinct treatment of permit applications filed before or after the adoption of amended bylaws, or its conclusion that persons filing applications before the adoption of amended bylaws may elect to request a town's legislative body to review applications under the amended bylaws.

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