In re Trahan

• Decision Date: 20 June 2008
• Docket Number: No. 07-359.,07-359.
• Citation: 2008 VT 90,958 A.2d 665
• Parties: In re Appeal of TRAHAN NOV (Michael and Desiree Trahan, Appellants).
• Court: Vermont Supreme Court

958 A.2d 665

2008 VT 90

In re Appeal of TRAHAN NOV (Michael and Desiree Trahan, Appellants).

No. 07-359.

Supreme Court of Vermont.

June 20, 2008.

Vincent A. Paradis and Daniel P. O'Rourke of Bergeron, Paradis & Fitzpatrick, LLP, Essex Junction, for Appellants.

Amanda S.E. Lafferty of Stitzel, Page & Fletcher P.C., Burlington, for Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

This appeal is from a zoning enforcement action in which the Town of Fayston claims that landowners. Michael and Desiree Trahan, built a pond without a required permit and in violation of setback restrictions imposed in the Town zoning regulations. The Environmental Court granted summary judgment against landowners, holding that, although they had a permit for the pond by operation of law, their failure to appeal the Town zoning administrator's decision of January 18, 2007 denying them a permit became final and unassailable under 24 V.S.A. § 4472. The court further concluded that landowners' pond is subject to general dimensional and density standards for the applicable zoning district under § 4.11 of the Town of Fayston Land Use Regulations (Regulations).¹ On appeal, landowners argue that: (1) the zoning permit was deemed issued by operation of law and that the zoning administrator's subsequent denial of the permit therefore constitutes a collateral attack on the final decision; and (2) the Regulations do not require setbacks for small ponds. We affirm.

¶ 2. The facts of this case are largely undisputed. Landowners own approximately 7.2 acres in the Town. During the summer and fall of 2006, landowners constructed a pond on the property, using an earthen berm to contain the water. The pond impounds approximately 18,000 cubic feet of water.² At some point after the completion of the pond, the Town zoning administrator informed landowners that they would need to obtain a permit for the pond, and on October 20, 2006 landowners submitted a permit application. Thereafter, the zoning administrator telephoned landowners to request further information about the location of the pond. Landowners were unsure as to the exact location of the pond, so they granted the zoning administrator permission to visit the property to measure the setback distance from the pond to nearby Barton Road. On November 1, 2006 the zoning administrator measured the distance from the center of Barton Road to the pond, and recorded this distance as nineteen feet.³

¶ 3. On November 3, 2006, the zoning administrator sent landowners an opinion memorandum, informing them that the pond was in violation of Regulations § 2.4 and Table 2.3 because the pond was set back only nineteen feet from the center of Barton Road. The memorandum requested a meeting to discuss means for the applicant to come into compliance with the Regulations. On November 13, the zoning administrator issued a notice of violation to landowners, informing them that the pond was within the sixty-five foot setback requirement, and that landowners' property was in violation of Regulations § 2.3(A), (C), and (D); § 2.4; Article 2; Table 2.3(D); § 1.3; § 4.11(A), (B).⁴ The next day, landowners timely appealed the violation determination to the zoning board of adjustment (ZBA). The ZBA held a hearing on December 14, 2006. On January 12, 2007, the ZBA issued a written decision, affirming the zoning administrator's findings with respect to the pond. In its decision the ZBA made the following findings and conclusions: (1) the construction of a pond is regulated by the Recreation District and § 4.11; (2) a pond constitutes a structure within the meaning of the Regulations; (3) the subject property was within a Recreation District and was thus required to be set back sixty-five feet from the centerline of the road; and (4) because landowners' property was only nineteen feet from the centerline of Barton Road, landowners were in violation of the Regulations.

¶ 4. The ZBA ruled as follows: "[the ZBA] finds the land development/pond at 179 Barton Road to be within the required setback and concurs with the Zoning Administrator's opinion memo dated November 3, 2006 and therefore DENIES applicant's appeal." On January 14, landowners appealed this decision to the Environmental Court.

¶ 5. On January 18, 2007, the zoning administrator sent a written decision on the permit application to landowners, denying them the permit for the pond. Attached to the decision was a note, signed by the zoning administrator, which explained: "[t]his copy is for your records. My decision was held until the ZBA Notice of Decision was issued." Landowners did not appeal this decision.

¶ 6. In the Environmental Court, landowners moved for summary judgment and argued that: (1) their application for a zoning permit was deemed approved under § 4448(d) because the zoning administrator's formal decision on January 18 denying the permit came too late;⁵ and (2) the ZBA erred in concluding that the location of the pond violates the Regulations.

¶ 7. On appeal, the Environmental Court considered both of landowners' arguments in turn. First, on the issue of whether landowners' permit application was "deemed approved" under § 4448(d), the court held that the zoning administrator was required to act on landowners' permit request within thirty days of when it was complete and failed to do so.⁶ Thus, the request was deemed approved on December 2, 2006, thirty days from when the application was complete. However, the court ruled that "even though [landowners'] application was deemed approved by statute and [r]egulation prior to the [zoning administrator's] January 18, 2007 decision denying it, [landowners'] failure to appeal the [zoning administrator's] January 18, 2007 decision rendered that decision final and unassailable pursuant to 24 V.S.A. §§ 4472."

¶ 8. Second, on the zoning-regulation-construction question, the court ruled that the pond required a permit and that the sixty-five-foot setback requirement applied to the pond. Thus, the court held on the merits that the ZBA properly ruled that the placement of the pond violated the Regulations because it encroached on the setback area.

¶ 9. We begin with landowners' claim that their permit application issued by operation of law on December 2, 2006. Landowners assert that a zoning permit, which has issued by operation of law, cannot later be denied by the zoning administrator. They argue that their application was complete on November 1, 2006, yet that the zoning administrator failed to issue her formal opinion until January 18, 2007, forty-eight days later, well beyond the thirty-day limit imposed by § 4448(d). Therefore, landowners argue that their permit issued by operation of law on December 2, 2006.

¶ 10. We note at the outset that this claim is a partial defense, at best, to the action on appeal. Landowners appealed the enforcement action, not the denial of the zoning permit. The enforcement action is based on the landowners' location of the pond—which rendered the pond in violation of the setback requirements of the Regulations. The zoning administrator found this violation on November 3 and issued an official violation letter on November 13. Both these actions occurred before a permit could have issued by operation of law, even under landowners' theory. Thus, landowners' deemed-approval defense in no way compels a conclusion that the original violation determination was erroneous.

¶ 11. We recognize, however, that the presence of a permit by operation of law would affect the remedy that could be imposed for the violation. See 24 V.S.A. § 4451(a) (stating that the fines required under the section reflect the number of days that a violation is ongoing). A permit does not, however, obviate all remedies. For example, the Town could seek fines under § 4451(a) for the period before the permit was in effect. In this case, however, the question of sanction is premature. The sole question before the Environmental Court was whether a violation occurred as of November 13, 2006, and any permit that issued by operation of law did not answer that question in landowners' favor.

¶ 12. Because of its effect on the available sanctions, we nevertheless consider whether landowners had a permit by operation of law. Section 4448(d) provides that "[i]f the administrative officer fails to act with regard to a complete application for a permit within 30 days, whether by issuing a decision or by making a referral to the appropriate municipal panel, a permit shall be deemed issued on the 31st day." 24 V.S.A. § 4448(d). We have held that the purpose of the predecessor statute to § 4448(d) was "to curtail indecision and protracted deliberations in the zoning decision-making process and to constitute a final decision to provide a mechanism for any interested party to appeal the decision." Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 526-27, 739 A.2d 1241, 1246 (1999). Given the possible consequences of granting permits inconsistent with the zoning requirements, "we must be careful to use [the deemed-approval remedy] only where its application is clearly consistent with statutory intent," In re Fish, 150 Vt. 462, 464, 554 A.2d 256, 258 (1988).

¶ 13. This case represents the antithesis of indecision or protracted deliberation on the part of zoning authorities. When landowners applied for a permit, the zoning administrator immediately started investigating the pond and found that it violated the Regulations. The zoning administrator diligently notified landowners of her finding and, when landowners did not respond, issued a notice of violation. Landowners appealed that determination to the ZBA, which upheld the violation.

¶ 14. Landowners' theory is that the permit request and the violation determination are wholly separate and that, whatever the zoning administrator did after making the violation determination, she also had to issue a permit decision within the...