In re Hopkins Certificate of Compliance

Decision Date19 June 2020
Docket NumberNo. 2019-249,2019-249
Citation2020 VT 47
CourtVermont Supreme Court
PartiesIn re Hopkins Certificate of Compliance (Bernard J. Boudreau, Appellant)

2020 VT 47

In re Hopkins Certificate of Compliance (Bernard J. Boudreau, Appellant)

No. 2019-249

Supreme Court of Vermont

December Term, 2019
June 19, 2020


NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas S. Durkin, J.

Bernard J. Boudreau, Pro Se, Bennington, Appellant.

Cristina L. Mansfield, Manchester, for Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

¶ 1. EATON, J. Bernard Boudreau appeals the environmental division's dismissal of his appeal from a decision of the Manchester Development Review Board (MDRB) for lack of jurisdiction. We conclude that Boudreau's appeal is a collateral attack on a zoning decision barred by the exclusivity-of-remedy provision in 24 V.S.A. § 4472 and affirm.

¶ 2. The record reveals the following relevant facts. In 2017, Boudreau and Edward Hopkins owned abutting residential properties in the town of Manchester. In April of that year, Hopkins sought a change-of-use permit allowing him to begin using his property as a law office. Boudreau participated in the permit-review process. Although there were several exterior improvements required under the site plan, Boudreau was primarily concerned with a line of

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evergreen plantings which Hopkins had proposed to screen a parking area from his neighbors' view. The MDRB approved the site plan—making specific note of the line of evergreen plantings and Hopkins' agreement to Boudreau's request that these plantings "consist of arborvitae"1—and issued a change-of-use permit. Neither the site plan approval nor the permit were appealed.

¶ 3. On January 30, 2018, the Zoning Administrator (ZA) granted Hopkins a temporary certificate of compliance stating that "[t]he project conforms to the permit and the building may be occupied for professional use until the exterior elements of the project are complete as approved" in the site plan. Under the temporary certificate, Hopkins was required to obtain a final certificate of compliance prior to the temporary certificate's expiration on July 31, 2018. But on August 3, 2018, after the temporary certificate had expired, the ZA issued Hopkins a second temporary certificate of compliance with an expiration date of July 31, 2019. Boudreau timely appealed the second temporary certificate to the MDRB.

¶ 4. On September 20, 2018, the MDRB issued a decision holding that the second temporary certificate functioned as an impermissible extension of the first temporary certificate, and finding that, in any event, the requirements for a temporary certificate had not been met. It therefore ordered that Hopkins "either come into full compliance with the permit and approved site plan" within thirty days, "taking into consideration the following determinations, or cease use and occupancy of the Property until a Certificate of Occupancy has issued." The "following determinations" included that the arborvitae screen was in compliance, but several other exterior improvements required under the site plan remained outstanding.

¶ 5. Boudreau filed a notice of appeal from this decision in the environmental division on October 15, 2018. Nine days later, while Boudreau's appeal was pending, the ZA issued

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Hopkins a final certificate of compliance. Boudreau did not appeal the final certificate of compliance. Instead, he filed a statement of questions in connection with his appeal of the second temporary certificate, centering around the MDRB's determination that the arborvitae screen complied with the site plan. The statement of questions also asked the court to determine whether the final certificate was "void due to the noncompliance of the existing arborvitaes."

¶ 6. Hopkins and Boudreau filed cross-motions for summary judgment in the environmental division. However, the court determined that Boudreau's challenge to the validity of the final certificate was beyond the scope of his appeal from the temporary certificate. Because unappealed zoning decisions are impervious to collateral attack, the court reasoned, it was unable to grant relief, and the issues were moot. As a result, it dismissed the action for lack of jurisdiction. This appeal followed.

¶ 7. We review a court's dismissal for lack of jurisdiction de novo. Jordan v. State Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997).

¶ 8. The arborvitae-screening requirements were imposed pursuant to the Vermont Planning and Development Act. See 24 V.S.A. § 4416(a). Thereunder,

the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter or with respect to any one or more of the provisions of any plan or bylaw shall be the appeal to the appropriate panel under section 4465 of this title, and the appeal to the Environmental Division from an adverse decision upon such appeal under section 4471 of this title.

24 V.S.A. § 4472(a) (enumerating two exceptions not relevant here). Further,

[u]pon the failure of any interested person to appeal to an appropriate municipal panel under section 4465 of this title, or to appeal to the Environmental Division under section 4471 of this title, all interested persons affected shall be bound by that decision or act of that officer, the provisions, or the decisions of the panel, as the case may be, and shall not thereafter contest, either directly or indirectly, the decision or act, provision, or decision of the panel in any proceeding.

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Id. § 4472(d). We have explained that § 4472(a) and (d) are "two sides of the same coin," embodying through "broad and unmistakable language" a legislative intent "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, 1230-31 (2000) (mem.). Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, " 'there should, in fairness, come a time when the decisions of an administrative officer become final so that a person may proceed with assurance instead of peril.' " Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142, 564 A.2d 1361, 1363 (1989) (quoting Graves v. Town of Waitsfield, 130 Vt. 292, 295, 292 A.2d 247, 249 (1972)).

¶ 9. In order to "properly appeal[]" the decision of a ZA as required under this exclusivity-of-remedy provision, see City of S. Burlington, 171 Vt. at 588-89, 762 A.2d at 1230, an "interested person" must file a notice of appeal "within 15 days of the date of that decision." 24 V.S.A. § 4465(a). Although Boudreau acknowledges that he did not appeal from the final certificate, he argues that his appeal nonetheless evades the exclusivity-of-remedy provision because it is not a collateral attack on the final certificate, but instead a direct challenge to the MDRB's determination that Hopkins' arborvitae screening complied. In support of this argument, he contends that: (1) statutes relating to appeal rights are remedial in nature and must be liberally construed; (2) the issues raised on appeal do not constitute a collateral challenge barred by § 4472; (3) he exhausted his administrative remedies, because any appeal of the issue to the MDRB would have been duplicative as they already passed on the issue; (4) his statement of questions "preserved" the issue of the validity of the final certificate; and (5) his appeal is not moot.

¶ 10. First, we reject the suggestion that we should view § 4472 through the lens of liberal construction. Boudreau argues that because it is a statute governing appeal rights, § 4472 is remedial in nature, and must be liberally construed in favor of the exercise of those rights. But we

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employ tools of statutory construction "only if the plain language of the statute is unclear or ambiguous." Flint v. Dep't of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. Boudreau points to no ambiguity within § 4472, nor do we find any. To the contrary, as explained supra, ¶ 8, we have repeatedly recognized that § 4472, through "broad and...

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  • Paige v. State
    • United States
    • Vermont Supreme Court
    • April 9, 2021
    ...raised in plaintiff's complaint are no longer "live" and he "lack[s] a legally cognizable interest in the outcome." In re Hopkins Certificate of Compliance, 2020 VT 47, ¶ 16 (quotation omitted). Plaintiff fails to show that any exception to the mootness doctrine applies. This case does not ......

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