Levy v. Town of St. Albans Zoning Bd. of Adjustment

• Decision Date: 14 July 1989
• Docket Number: No. 89-046,89-046
• Citation: 564 A.2d 1361,152 Vt. 139
• Parties: James L. LEVY, et al. v. TOWN OF ST. ALBANS ZONING BOARD OF ADJUSTMENT.
• Court: Vermont Supreme Court

Page 1361

564 A.2d 1361

152 Vt. 139

James L. LEVY, et al. v. TOWN OF ST. ALBANS ZONING BOARD OF ADJUSTMENT.

No. 89-046.

Supreme Court of Vermont.

July 14, 1989.

James W. Swift and Peter F. Langrock of Langrock Sperry Parker & Wool, Middlebury, for plaintiffs-appellees.

Brown, Cahill, Gawne & Miller, St. Albans, for appellee Town of St. Albans.

Spencer R. Knapp and Samuel Hoar, Jr., of Dinse, Erdmann & Clapp, Burlington, and John Kenneth Felter and Kenneth Parsigian of Goodwin, Proctor & Hoar, of counsel, Boston, Mass., for appellant.

Before MORSE, J., and BARNEY, C.J. (Ret.), KEYSER, J. (Ret.), BRYAN, Superior Judge and COOK, District Judge, Specially Assigned.

MORSE, Justice.

The Franklin Superior Court granted summary judgment declaring void a conditional use approval of a greyhound racing facility in St. Albans, Vermont, issued to Delaware North Companies. Delaware North appeals that order, contending that the court was without jurisdiction to review the town zoning board's 1984 ruling conditionally approving the track. ¹ We reverse and remand.

In early 1984, Delaware North acquired an option to purchase property on Route 7 in St. Albans for the development of a dog racing track. It sought and obtained approval for a conditional use and a building permit from the town zoning board on May 10, 1984. Development of the site was slowed when the company encountered difficulty procuring a license from the Vermont Racing Commission; it succeeded in obtaining a racing license on April 7, 1988, after four years of litigation.

In the meantime, Delaware North acquired other necessary permits, and purchased the site in December 1985, expending substantial sums on architectural, engineering and legal fees. On September 15, 1987, the company renewed its application for a building permit. At this point, questions arose pertaining to the validity of the 1984 conditional use approval under the town zoning ordinance. The zoning board, however, issued a building permit to defendant on December 22, 1987, based on its prior approval.

Plaintiffs, residents of St. Albans, appealed the board's decision. Delaware North moved for summary judgment. On August 12, 1988, the superior court denied the motion and granted summary judgment in favor of plaintiffs. The court concluded that the 1984 approval was void as ultra vires and that plaintiffs were not barred from challenging it under 24 V.S.A. § 4472 or on grounds of equitable estoppel.

Delaware North makes several arguments on appeal: that the 1984 approval was a valid exercise of the zoning board's authority; that 24 V.S.A. § 4472(d) bars collateral attack of an unappealed zoning decision; that plaintiffs are barred from challenging the 1984 approval under the doctrine of equitable estoppel; and that the trial court's sua sponte order of summary judgment against Delaware North violated its right to notice. Plaintiffs answer these claims, and argue in addition that the 1984 approval had expired--either by operation of law or because the company had abandoned the project--by the time of the 1987 application for a building permit. We hold that the 1984 approval was a final order and was not appealable beyond the thirty-day limitation period of V.R.C.P. 74(b) and V.R.A.P. 4. Nonetheless, factual questions remain as to whether Delaware North abandoned the project, and therefore summary judgment is not appropriate. V.R.C.P. 56. We remand for further proceedings on the issue of abandonment. ²

I. Finality

Under 24 V.S.A. §§ 4471 and 4472(a) exclusive jurisdiction over appeals from zoning board decisions is vested in the superior court. If a direct appeal is not taken, the decision of the zoning board is final and not contestable, under 24 V.S.A. § 4472(d), which provides in pertinent part:

Upon the failure of any interested person ... to appeal to a superior court under section 4471 of this title, all interested persons affected shall be bound by ... such decisions of the board, ... and shall not thereafter contest, either directly or indirectly, such decision ... of the board in any proceeding, including, without limitation, any proceeding brought to enforce this chapter.

Plaintiffs did not appeal the 1984 decision of the zoning board, but they collaterally attack that decision in this lawsuit. The statute unequivocally forecloses such a contest, and the superior court was without jurisdiction to consider it. McGlynn v. Town of Woodbury, 148 Vt. 340, 343, 533 A.2d 1187, 1189 (1987); City of Rutland v. McDonald's Corp., 146 Vt. 324, 330-31, 503 A.2d 1138, 1142 (1985); Wright v. Preseault, 131 Vt. 403, 409, 306 A.2d 673, 677 (1973); Graves v. Town of Waitsfield, 130 Vt. 292, 295, 292 A.2d 247, 249 (1972). The policy underlying the statute is evident: "that 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." Graves, 130 Vt. at 295, 292 A.2d at 249. Cf. Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288, 292-93, 427 A.2d 365, 368 (1981) (§ 4472 does not bar suit to enjoin use of property prohibited by ruling of zoning administrator).

Plaintiffs maintain that § 4472 does not apply where the board's decision was void ab initio. We disagree. In Graves, the town argued that a zoning permit was void on the ground that the administrator who issued the permit lacked authority to do so. 130 Vt. at 294, 292 A.2d at 248. This Court, however, held that § 4472 "precluded [the town] from contesting the validity of the permit." Id. at 295, 292 A.2d at 249; see also Harvey v. Town of Waitsfield, 137 Vt. 80, 83, 401 A.2d 900, 901 (1979) (§ 4472 barred collateral attack on zoning board decision even where action challenged validity of zoning ordinance from which board's authority derived).

Plaintiffs also contend that § 4473 contradicts Delaware North's interpretation of § 4472. We again disagree. Section 4473 states that a zoning board may not "allow any use not permitted by any zoning regulations or other bylaw." The power of a zoning board is limited. It does not follow, however, that when a board exceeds its power, as plaintiffs claim happened here, its ruling may be challenged at any time in the future. To the contrary, § 4472 implements a policy of repose, even where the board's ruling is ultra vires. To hold otherwise would severely undermine the orderly governance of development and would upset reasonable reliance on the process.

II. Expiration

In addition to claiming that the 1984 approval may be collaterally attacked, plaintiffs contend, in the alternative, that the 1984 approval lapsed. If this is so, then Delaware North's 1987 petition to the zoning board must be treated as an application for a new conditional use approval, in addition to a building permit, and plaintiffs' appeal of the board's decision in that context was timely filed.

A. Operation of Law

Plaintiffs argue first that the 1984 approval expired by operation of law. The building permit issued to Delaware North on May 10, 1984, stated on its face that it would expire on May 10, 1985. In addition, a provision in the town zoning bylaws limits the duration of permits to one year (with an option for an extension). These references to the time limit on building permits, however, do not pertain to the underlying zoning approval. ³

A project of this magnitude obviously requires more than twelve months to complete. The town bylaws simply cannot be construed to authorize the commencement of the project only to have the approval subject to revocation in a year's time. No developer could reasonably rely on such a capricious scheme. Delaware North must be permitted to rely on the finality of the 1984 ruling, even while having to comply with the formality and costs of procuring a new building permit. ⁴

B. Abandonment

Plaintiffs also claim that the 1984 approval expired due to the company's abandonment of the project. On appeal, plaintiffs maintain "that the public announcements, coupled with lack of any physical construction, should constitute abandonment of the approval." This is an issue of fact, and is not properly addressed to this Court. The question before us is only whether there was a "genuine issue as to any material fact" evident from the pleadings or other materials before the trial court. V.R.C.P. 56(c); Hamlin v. Mutual Life Insurance Co., 145 Vt. 264, 266-67, 487 A.2d 159, 161 (1984). If there was, summary judgment in the company's favor ⁵ would be inappropriate, and the matter should be remanded for trial. See Pierce v. Riggs, 149 Vt. 136, 140, 540 A.2d 655, 658 (1987). If, on the other hand, there was no "genuine issue as to any material fact" before the trial court, summary judgment in the company's favor would normally be appropriate, since Delaware North is otherwise entitled to judgment as a matter of law on the finality grounds discussed above. See Alpstetten Association, Inc. v. Kelly, 137 Vt. 508, 514, 408 A.2d 644, 647 (1979) (burden on party opposing summary judgment to "come forward with an opposing affidavit or other evidence that raises a dispute as to the fact or facts in issue"). ⁶

The only submission before the trial court cited by plaintiffs that has any bearing on the issue of abandonment is an affidavit by James Levy, filed on April 28, 1988. That affidavit contains several allegations "upon information and belief" pertaining to Delaware North's failure to commence construction within one year of the 1984 zoning approval. None of these allegations are based upon the personal knowledge of the affiant. The affidavit also refers to newspaper articles quoting a spokesperson for Delaware North to the effect that the company decided to discontinue its plans to build the dog track.

Rule 56(e) of the Vermont Rules of Civil Procedure provides in part as follows:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such...