Maple Tree Place, In re

• Decision Date: 17 May 1991
• Docket Number: No. 90-354,90-354
• Citation: 594 A.2d 404,156 Vt. 494
• Parties: In re MAPLE TREE PLACE.
• Court: Vermont Supreme Court

Page 404

594 A.2d 404

156 Vt. 494

In re MAPLE TREE PLACE.

No. 90-354.

Supreme Court of Vermont.

May 17, 1991.

Spokes, Foley & Peterson, Burlington, for appellant.

Fred I. Parker, Mark L. Sperry and Alison J. Bell of Langrock Sperry Parker & Wool, Burlington, for appellee.

Harvey D. Carter, Jr., Burlington, for Williston Citizens for Responsible Growth.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

This interlocutory appeal involves Maple Tree Place Associates' (MTP) pursuit of a subdivision and site plan approval. The Town of Williston and Williston Citizens for Responsible Growth appeal a decision by the Chittenden Superior Court remanding the case to the Williston Planning Commission. We affirm.

In 1987 MTP filed an application with the Williston Planning Commission for conceptual subdivision approval for a 477,159-square-foot shopping mall under the Town of Williston Subdivision and Zoning Regulations. Conceptual approval was granted in March 1988, and in May of 1988 MTP applied to the commission for site plan approval and preliminary subdivision approval. After sixteen public hearings the commission on December 5, 1989 concluded on a five-to-four vote that MTP did not meet five of the twelve standards for review set forth in the subdivision and site plan regulations, and denied MTP's application.

MTP appealed to the Chittenden Superior Court under 24 V.S.A. §§ 4471 and 4475, referencing in addition V.R.C.P. 74. Soon thereafter, MTP moved for remand to the Williston Planning Commission for leave to present additional evidence, namely a plan for phasing the project. In support of its motion, MTP pointed to numerous references in the commission's decision to the ill effects of the immediate, unphased development of so large a project on the Town's plan for orderly growth; on secondary commercial growth in the Town; on land values; and on the impression of a rural community, historic resources, and other values. MTP focused particularly on paragraph 39 of the decision, which stated:

39. Phasing a development is often appropriate to mitigate unreasonable highway congestion or unsafe conditions. The Applicant has indicated it would not accept a condition to phase its project. Other developments in the Taft Corners area have been phased by conditions imposed in the Town permitting process or by the District Environmental Commission. Phasing would allow the Town to control traffic by being assured that increased use of the highways does not outpace the necessary road improvements. Alternative traffic routing patterns and roadway improvements could be explored if initial phases of the project result in unacceptable impacts.

MTP argued that it was misled into not presenting a phasing plan by the commission's conceptual review and, thus, it was not at fault for this omission. It denied that it had expressed to the commission that it would not accept a phased project.

MTP relied in its remand motion on the language of 24 V.S.A. § 4471 providing that an "appeal [from a planning commission to a superior court] shall be taken in such manner as the supreme court may by rule provide for appeals from state agencies governed by sections 801 through 816 of Title 3 [the Administrative Procedure Act]." MTP contended that 3 V.S.A. § 815(b) allowed a reviewing court to remand a matter to the originating agency for presentation of additional evidence upon a showing of "good reasons for failure to present it in the proceeding before the agency." The Town opposed the motion on grounds that § 815(b) was limited to appeals from state agencies and that the Administrative Procedure Act did not apply to appeals under 24 V.S.A. § 4471.

The trial court granted the motion to remand, adopting MTP's theory. It noted that the permit denial included other reasons besides the lack of phasing but concluded that it was unable to determine "which concerns caused a majority of the commission to rule against the project or whether a majority would have voted in favor of the project if MTP had presented a 'phase in' plan." Initially, it specified that the review would be under the "current town plan." It amended the order, however, to specify that review of the phased proposal should occur under the plan in effect when MTP originally sought approval. The court subsequently granted the Town's motion for interlocutory review, pursuant to V.R.A.P. 5, of the decision to remand, and Williston Citizens for Responsible Growth (CRG), an intervenor, joined in the appeal.

The court certified the following controlling question of law pursuant to the Rule:

Whether the superior court has authority under 3 V.S.A. section 815 to remand an amended application for subdivision and site plan approval to a town planning commission.

The Town repeats on appeal its central argument before the superior court--that 3 V.S.A. § 815 does not apply to appeals brought from municipal zoning and planning bodies under 24 V.S.A. § 4471 and the language of the latter section does not make it applicable by reference. It is clearly correct on the first part of its argument. As set out in 3 V.S.A. § 801(b)(1), "agency" is defined in the APA with only state, rather than municipal, entities in mind:

"[A]gency" means a state board, commission, department, agency, or other entity or officer of state government, other than the legislature, the courts, the Commander in Chief and the Military Department, authorized by law to make rules or to determine contested cases.

The APA does not apply to local boards or commissions. See Burroughs v. West Windsor Bd. of School Directors, 141 Vt. 234, 236, 446 A.2d 377, 379 (1982) (APA does not apply to school boards); City of Winooski v. Vincent, 137 Vt. 252, 252, 402 A.2d 1192, 1192 (1979) (city council is not a "state board, commission, department, or officer" for purposes of § 801(b)(1) of the APA). The statute on which the trial court rested, 3 V.S.A. § 815, is part of the APA.

The trial court, however, found the statute applicable through an alternative route, that is, by cross-reference from § 4471. Although § 4471 provides that an appeal "shall be taken in such manner as the supreme court may by rule provide for appeals from state agencies governed by sections 801 through 816 of Title 3," the words "in such manner" fall far short of incorporating the sections 801 through 816 themselves into appeals from decisions from other-than-state entities. In any event, the statute by its terms cross-references procedures imposed by rule of this Court. The applicable rule is V.R.C.P. 74, see V.R.C.P. 74(a) (applicability), and that rule nowhere provides for a remand ¹ or the incorporation of other APA procedure. The trial court should not have relied on 3 V.S.A. § 815 as the basis for its remand.

Although our holding on the applicability of 3 V.S.A. § 815 answers the question certified by the trial court, the question must be treated as a "landmark, not a boundary," and we may affirm on other grounds if fairly raised by the order appealed from. State v. Dreibelbis, 147 Vt. 98, 100, 511 A.2d 307, 308 (1986). MTP urges here as an alternative that the court had the inherent authority to remand to the commission. We find this ground to be persuasive and affirm on this basis.

Although we have never faced the question directly, most courts have found that trial courts reviewing administrative decisions have the inherent or implied authority to remand the matter to the administrative agency in the interests of justice. See, e.g., City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 876 (Alaska 1985); Texter v. Department of Human Services, 88 N.J. 376, 383, 443 A.2d 178, 181 (1982); Wilson v. Borough of Mountainside, 42 N.J. 426, 442, 201 A.2d 540, 548 (1964) (in a zoning case, "[p]rotection of the public interest may justify such a course in particular situations as an appropriate exercise of judicial discretion"); cf. B.B. & J. v. Bedell, 156 Vt. 203, ---, 591 A.2d 50, 52 (1991) (remand for new trial by this Court appropriate "to prevent a failure of justice"). The common sense approach to remand is described by the Washington Supreme Court in State ex rel. Gunstone v. Washington State Highway Comm'n, 72 Wash.2d 673, 674-75, 434 P.2d 734, 735 (1967):

The provision for such a remand would seem to be intended as a safety valve, permitting the reviewing court to require a second look at situations and conditions which might not warrant a reversal, but which, to the court reviewing the record, would indicate to it that the ... Commission may have acted on incomplete or inadequate information; or may have failed to give adequate consideration to an alternate route; or may have weighted its evaluation of the matter under consideration with the theory of the complete infallibility of its own engineers.

Although no grounds for reversal were found, the court affirmed a remand.

The Town argues that the power to remand, if it exists, should not apply here because remand is conceptually inconsistent with a system of de novo review. For a number of reasons, we do not find this argument persuasive in this case.

First, we note in direct response to the Town that there is at least one de novo appeal provision involving state agency adjudication governed by the APA, and the remand authorization in § 815 would ostensibly apply in that instance. See 26 V.S.A. § 1363(c) (de novo appeal from state board of medical practice in physician license revocation or suspension cases); see also Board of Medical Practice v. Perry-Hooker, 139 Vt. 264, 268, 427 A.2d 1334, 1336 (1981). Thus, the Legislature did not see the fatal inconsistency the Town relies upon.

Second, although we have held de novo review means that "the case is heard as though no action whatever had been held prior thereto," In re Poole, 136 Vt. 242, 245, 388 A.2d 422, 424 (1978), it is an overstatement to say that planning commission action here will...