Kalakowski v. Town of Clarendon, 317-79

• Decision Date: 30 April 1981
• Docket Number: No. 317-79,317-79
• Citation: 139 Vt. 519,431 A.2d 478
• Parties: Joseph KALAKOWSKI, et al. v. TOWN OF CLARENDON.
• Court: Vermont Supreme Court

Page 478

431 A.2d 478

139 Vt. 519

Joseph KALAKOWSKI, et al. v. TOWN OF CLARENDON.

No. 317-79.

Supreme Court of Vermont.

April 30, 1981.

Robinson E. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for plaintiffs.

Corsones & Hansen, Rutland, for defendant.

Before BARNEY, C.J., LARROW, BILLINGS and HILL, JJ., and DALEY, J. (Ret.), Specially Assigned.

HILL, Justice.

This dispute arises out of opposition to amendments to the Clarendon zoning bylaws changing the permitted uses of property in the neighborhood where plaintiffs reside.

Clarendon voters acted upon the zoning amendments three times in 1978 and 1979. The proposals were defeated at the annual town meeting on March 6, 7, 1978. Then, at a special town meeting on May 22, 23, 1978, voters approved the amendments by more than the required two-thirds vote. See 24 V.S.A. § 4404(d). Following that vote, plaintiffs instituted civil action against the town in Rutland Superior Court challenging the adoption of the amendments on procedural grounds. While that action was pending, voters again approved the amendments by the required margin at a special town meeting on January 30, 1979. Plaintiffs also challenged that vote in a civil action.

Agreed statements of fact were filed and the two cases were consolidated. After issuing findings and conclusions, the court granted Clarendon's motion for summary judgment. Plaintiffs' subsequent motion for amendment of judgment was denied without a hearing. Plaintiffs appeal from both the final judgment and denial of the motion to amend the judgment.

I.

Title 24 dictates the procedures to be followed for adoption, amendment or repeal of development plan bylaws. A three-stage process involving the planning commission, selectmen and voters is contemplated for "rural towns" like Clarendon, see 24 V.S.A. § 4303(10).

A zoning change is introduced at the planning commission stage. 24 V.S.A. § 4403(a). The commission must hold at least one duly noticed public hearing on the proposal. 24 V.S.A. § 4403(b). Thereafter, the commission makes revisions, transmits the edited proposals to the selectmen and files a copy with the town clerk for public inspection. Id.

24 V.S.A. § 4404(a) dictates the procedure to be followed at the selectmen stage. There, one or more public hearings must be held on the zoning proposal between thirty and ninety days after the amendments are received from the planning commission. Copies also must be sent to the planning commission of surrounding towns, the regional planning commission and to the agency of development and community affairs.

Selectmen are given the responsibility for drafting the actual proposal to be acted upon by the voters at the third stage of the process. Approval or rejection is decided by Australian ballot at a regular or special town meeting. 24 V.S.A. § 4404(c). While a majority vote usually is sufficient for approval of an initial or original bylaw, 24 V.S.A. § 4404(c)(1), a two-thirds vote may be required for an amendment or revision in a rural town if a written protest against the amendment or revision is signed by at least two per cent of a town's legal voters and is filed with the selectmen before the vote, 24 V.S.A. § 4404(d)(1).

Along with the various hearing, notice and filing requirements in Title 24, Title 17 elucidates the requirements for warning and holding annual or special meetings. Plaintiffs' challenge focuses on three requirements found in these two titles: that the selectmen hold a final public hearing before voter action is taken, 24 V.S.A. § 4404(a); that there be adequate public notice of a final hearing, 24 V.S.A. § 4447; and that there be proper warnings of upcoming votes, as demanded in 24 V.S.A. § 706(a) and 17 V.S.A. § 2661.

II.

An examination into the validity of the procedures underlying this complex scenario must be preceded by a caveat involving the statutory requirements. The state delegates authority to the towns to adopt zoning regulations. Thompson v. Smith, 119 Vt. 488, 498-99, 129 A.2d 638, 645 (1957). The parties dispute whether the Legislature expects strict or substantial compliance with the procedures for adopting, revising and modifying zoning bylaws. Because zoning ordinances are in derogation of common law property rights, this Court insists upon strict compliance with the established procedures. Town of Waterford v. Pike Industries, Inc., 135 Vt. 193, 195, 373 A.2d 528, 530 (1977); Town of Milton v. LeClaire, 129 Vt. 495, 499, 282 A.2d 834, 836 (1971); Corcoran v. Village of Bennington, 128 Vt. 482, 493, 266 A.2d 457, 465 (1970). We reiterate that standard.

III.

On March 2, 1976, the town of Clarendon adopted a zoning bylaw, the validity of which is not challenged, designating the district in which plaintiffs' property is located for "commercial and residential" use. In 1977, the town planning commission prepared amendments, revisions and additions to the 1976 zoning bylaws, held hearings, and transmitted the proposals to the selectmen and town clerk, as required by Title 24. The plan would have the effect of changing plaintiffs' district to "commercial and industrial" use.

A duly noticed public hearing was held by the selectmen on January 3, 1978, regarding the proposals. The parties agree that, following the meeting, the selectmen made changes of substance. The new proposal was warned and then presented to Clarendon voters at the annual town meeting on March 6, 7, 1978. The parties dispute whether the notice followed 24 V.S.A. § 4447 requirements. As stated above, two per cent of the town's legal voters, pursuant to 24 V.S.A. § 4404(d), filed a written protest to the proposals, thereby requiring two-thirds approval before adoption. On March 7, the proposals received less than the requisite support.

Following the March 7 vote, the selectmen, upon receipt of a petition to rescind and reconsider certain sections of the proposed bylaws, scheduled and warned a special town meeting for March 22, 23, pursuant to 24 V.S.A. § 707. The selectmen, in addition to directing reconsideration of the sections cited in the petition, added two new provisions for action.

The parties agree there were no public hearings on the petition between March 7, 1978, and May 22, 1978. On May 23, the voters adopted all the proposals by the required margin.

Plaintiffs instituted civil action to have the zoning amendments declared invalid.

We need deal with only one aspect of plaintiffs' challenge to the May 23 vote. The state, in delegating power to the towns to enact zoning regulations, attempted to assure closer attention to local needs. "The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution." Schwartz v. Town Planning & Zoning Commission, 168 Conn. 285, 292, 362 A.2d 1378, 1382 (1975). The intricate procedural scheme, created with an eye towards that goal, seeks to involve both local government and citizens. The required warnings, notice and public hearings are integral to that process. 24 V.S.A. § 4404(a) demands that at least one public hearing held by the selectmen after the planning commission has submitted its proposed amendments precede final action on a zoning recommendation so that local government officials can revise proposals to meet the people's expressed desires. See 1 R. Anderson, American Law of Zoning 2d § 4.15, at 211-12 (1976).

While the selectmen in this case held a public hearing on the initial proposals, that government body subsequently made substantial changes in them. If another public hearing were required, the May 23 adoption is invalid. See Corcoran v. Village of Bennington, supra; Flanders Lumber & Building Supply Co. v. Town of Milton, 128 Vt. 38, 258 A.2d 804 (1969).

Courts generally distinguish between substantial and insubstantial changes made following a public hearing to determine whether subsequent enactment without an additional hearing is valid. See Shefler v. City of Geneva, 1 Misc.2d 807, 810, 147 N.Y.S.2d 400 (Sup.Ct.1956) ("Where such a substantial change is made subsequent to the public hearing and without any further notice or hearing the resulting enactment is invalid."). The North Carolina Supreme Court elucidated the analysis: "Ordinarily, if the ordinance or amendment as finally adopted contains alterations substantially different (amounting to a new proposal) from those originally advertised and heard there must be additional notice and opportunity for additional hearing. However, no further notice or hearing is required after a properly advertised and properly conducted public hearing when the alteration of the initial proposal is insubstantial." Heaton v. City of Charlotte, 277 N.C. 506, 518, 178 S.E.2d 352, 359 (1971).

In the case at bar, not only did the selectmen in effect add two new provisions to the bylaw amendments, but the parties agreed in stipulated facts that the selectmen's changes were "substantial."

Inherent in our decision that the May 23 vote is invalid lies the conclusion that the town meeting of May 22 does not satisfy the public hearing requirement of 24 V.S.A. § 4404(a). Whereas the § 4404(a) public hearing is meant to inform the selectmen of public sentiment so that they are able to alter proposals, a special town meeting is directed towards allowing a time for citizens to debate all town business before a vote is taken. While the former meeting is an aspect of the scheme created to shape proposals to the public interest, the latter is geared towards assuring an informed vote. Further, the first day of an annual town or special meeting cannot serve as a § 4404(a) public hearing for votes taken the next day. Not only is there insufficient time for the selectmen to restructure proposals, but a meeting adjourned one day...