Larkin v. City of Burlington

• Decision Date: 13 April 2001
• Docket Number: No. 99-219.,99-219.
• Citation: 772 A.2d 553
• Court: Vermont Supreme Court
• Parties: John LARKIN v. CITY OF BURLINGTON.

772 A.2d 553

John LARKIN v. CITY OF BURLINGTON.

No. 99-219.

Supreme Court of Vermont.

April 13, 2001.

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

ENTRY ORDER

Plaintiff John Larkin appeals the superior court's dismissal of his suit seeking damages resulting from defendant City of Burlington's refusal to apply to his zoning permit application the terms of a consent judgment entered into by the City and a previous owner of the subject property. We affirm.

In 1985, Northshore Partnership and Northshore Development, Inc. (hereinafter "Northshore") entered into a development agreement with the City concerning property owned by Northshore. Northshore later sought the City's approval to develop a portion of the property commonly referred to as the marina site. The City denied the permit application. Northshore appealed the permit denial and brought a damages suit in the superior court,¹ which was eventually settled pursuant to a consent judgment signed by the City and Northshore on April 26, 1989. The consent judgment allowed Northshore to apply for a permit seeking no more than sixty residential units on the marina site. Under the agreement, permit approval would be "subject to all ordinances and regulations duly adopted and in effect on the date hereof." The consent judgment provided that it "shall be binding on the successors and assigns of Northshore."

In March 1990, the City granted Northshore approval to construct a 38-condominium-unit development on the marina site. Two years later, the City extended the zoning permit to allow construction on the project by no later than March 1993. Northshore never built the project and never sought an extension of the permit deadline. Eventually, title to the property was transferred to the Chittenden Bank through foreclosure proceedings. Larkin entered into a purchase and sale agreement with the bank on March 14, 1997. Before he purchased the property, Larkin was given a copy of a May 1995 appraisal specifically noting that the property had no development permits or approvals, and that the status of the 1989 consent judgment was unclear. The purchase and sale agreement itself contained handwritten amendments, initialed by Larkin, indicating that the property would be conveyed "as is" under a limited warranty deed.

In June 1997, the same month he purchased the subject property from the bank, Larkin sought the benefits of the consent judgment in applying for a zoning permit to construct a sixty-unit elderly housing project on the marina site. In August 1997, following two days of public hearings, the planning commission denied the permit based on design review criteria contained in the then-current zoning laws, as opposed to those in place at the time of the 1989 consent judgment. The commission stated that the large scale and site design of the planned buildings created a 460-foot continuous vertical wall that blocked lake views from public access trails. The commission concluded that the development would need to be scaled down and sited differently to avoid creating a massive visual barrier and to better respect the area's natural areas.

In September 1997, Larkin appealed the planning commission's decision to the environmental court. Larkin also filed a suit in the superior court, seeking damages and injunctive and declaratory relief based on claims that the City's refusal to apply the consent judgment to his permit application violated a court order, violated his constitutional due process and property rights, and constituted a breach of contract. The parties agreed to consolidate the two actions in the environmental court. In June 1998, the environmental court granted partial summary judgment in favor of Larkin, ruling that the consent judgment applied to his zoning permit application. The court remanded the matter to the planning commission to consider the application in light of the 1989 consent judgment, and simultaneously transferred the matter to the superior court, presumably to consider the viability of Larkin's damage claims. The City filed a notice of appeal of the environmental court's decision, but this Court dismissed it for failure to appeal from a final judgment or seek interlocutory appeal. In July 1999, the planning commission granted Larkin approval to build two eighteen-unit residential structures on the marina site. The permit was granted under terms of the consent judgment.

Meanwhile, the City moved for dismissal of the transferred superior court action, claiming that the court lacked subject matter jurisdiction to consider the matter. In November 1998, the superior court granted the City's motion, ruling that the environmental court had already granted Larkin the declaratory relief he sought, and that he was not entitled to damages stemming from the City's exercise of its governmental authority. Noting that the City of Burlington and its planning regulations had changed considerably since Northshore's permit application in the mid-1980s, the court stated that the City may not barter away its attributes of sovereignty with respect to its zoning powers. In response to Larkin's motion for reconsideration, the court concluded that Larkin's complaint should be dismissed not only for the reasons stated in its earlier order, but also because the environmental court had exclusive subject matter jurisdiction over claims stemming from actions taken by city officials concerning zoning matters. On appeal, Larkin contends that the superior court erred in dismissing his complaint for lack of subject matter jurisdiction, arguing that his claim for damages was outside the environmental court's narrowly defined statutory authority, and that the superior court retained jurisdiction over its own consent judgment. For the most part, Larkin does not brief the initial (and alternative) basis for the superior court's judgment—that the City was not bound by a consent judgment requiring it to abdicate its zoning authority.

We need not address which court had subject matter jurisdiction over Larkin's damage claims because, regardless of which one did, we agree with the superior court that those claims should be dismissed. Before addressing the substantive issues, we make the following preliminary points. First, the environmental court's decision regarding the applicability of the consent judgment was not a final judgment because the matter was remanded to the planning commission and transferred to the superior court. See Huddleston v. Univ. of Vermont, 168 Vt. 249, 251, 719 A.2d 415, 417 (1998) (court's order is not final unless it resolves controversy between parties); In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (environmental court's decision remanding matter to zoning board was interlocutory ruling). Second, the City had no obligation to file a cross-appeal because it was content with the superior court's final order. See Huddleston, 168 Vt. at 255, 719 A.2d at 419 (appellee seeking to challenge aspects of trial court decision must file timely cross-appeal unless party was content with final order); Valley Realty & Development, Inc. v. Town of Hartford, 165 Vt. 463, 465 n. 2, 685 A.2d 292, 294 n. 2 (1996) (cross-appeal is unnecessary where appellee is content with final order but raises alternative grounds to support it); Coll v. Johnson, 161 Vt. 163, 167, 636 A.2d 336, 339 (1993) (same). Third, we will not reverse the trial court's underlying decision if the record before us reveals any legal grounds that would justify the result. In re Handy, 171 Vt. ___, ___, 764 A.2d 1226, 1234 (2000); see Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1079 (1989) ("function of this Court is to affirm the action of the trial court on any basis available and appropriate under our law"); see also Richards v. Union High Sch. Dist. No. 32, 137 Vt. 132, 134, 400 A.2d 987, 989 (1979) ("Error will not result in reversal if the record before us discloses any legal ground which would justify the result, even though the ground may not have been raised below and may not be briefed."); Braune v. Town of Rochester, 126 Vt. 527, 533, 237 A.2d 117, 121 (1967) ("Our rule is that we will affirm a ruling of a trial court upon any legal ground shown by the record, even though the ground may not have been raised below, and may not be briefed.").

As noted, the principal basis for the superior court's dismissal of Larkin's claims was that the City cannot contract away its zoning authority. It is well settled that a municipality cannot contractually deprive itself of its legislative or governmental powers. 10 E. McQuillin, The Law of Municipal Corporations § 29.07, at 277 (3d ed.1999); see Vermont Dep't of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 151 Vt. 73, 81-82, 558 A.2d 215, 222 (1988) (municipality's statutory authority to exercise its police powers is in nature of public trust and thus cannot be bartered away). Accordingly, courts are...