Phillips Const. Services, Inc. v. Town of Ferrisburg
| Decision Date | 29 June 1990 |
| Docket Number | No. 89-098,89-098 |
| Citation | 154 Vt. 483,580 A.2d 50 |
| Court | Vermont Supreme Court |
| Parties | PHILLIPS CONSTRUCTION SERVICES, INC. v. TOWN OF FERRISBURG. |
Peter Sidel and Diana Pikulski of Sidel & Associates, Waitsfield, for plaintiff-appellant.
Geoffrey Commons of Kelley, Meub, Powers & English, Ltd., Middlebury, for defendant-appellee.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.
Plaintiff Phillips Construction Services, Inc. appeals from the superior court's order granting defendant Town of Ferrisburg's motion to dismiss. We affirm.
On March 2, 1987, William Kennerson applied to the zoning administrator of the Town of Ferrisburg for a zoning permit allowing him to rebuild a garage and make improvements to his home. According to the application, the height of the proposed structure was twenty-one and one-half feet; local zoning regulations restrict building height to twenty feet in the district in question. The applicant also indicated compliance with setback requirements in the plans submitted, but when the garage was ultimately built, plaintiff, an adjoining landowner, maintains that it did not conform to those requirements. This latter claim is still disputed by the parties, since it is based on the existence of an alleged right-of-way which is the subject of a separate action in superior court.
The application was approved on March 9, and the permit noted that pursuant to 24 V.S.A. § 4464(a), interested persons had fifteen days to appeal the administrator's decision. The trial court found that notice of the decision was duly posted in accordance with the statute, 24 V.S.A. § 4443(b)(2). Plaintiff appealed the decision to the Zoning Board of Adjustment (ZBA) on July 1, 1987. On July 7, plaintiff also appealed to the ZBA the decision of December 3, 1986, permitting a subdivision of the land where Kennerson's home and garage are located.
In both appeals, plaintiff claimed that Kennerson had been allowed an extension of a nonconforming use without a proper variance under the Town's zoning bylaws, and that the Town's actions violated the bylaws and various provisions of Title 24, chapter 117. The ZBA dismissed both appeals as untimely, and plaintiff filed suit in superior court, seeking relief in the nature of a writ of mandamus to compel the Town to perform its ministerial duties. The court determined that it had no authority to order the requested relief, and granted defendant's motion to dismiss. This appeal followed.
The trial court determined that the exclusive remedy available to plaintiff was a timely appeal to the zoning board under chapter 117, 24 V.S.A. * We agree. This Court has previously noted a clear "legislative policy to deny extraordinary relief, and other collateral remedies" to plaintiffs who had not availed themselves of the relief provided by statute. Fisher v. Town of Marlboro, 132 Vt. 533, 534-35, 323 A.2d 577, 578 (1974). The trial court was correct in deciding that it had no authority to issue a writ of mandamus. Because plaintiff did not challenge the zoning board's actions by timely appeal under the statute, it was bound by those proceedings. McGlynn v. Town of Woodbury, 148 Vt. 340,...
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