Potter v. Hartford Zoning Bd. of Adjustment
| Decision Date | 17 September 1979 |
| Docket Number | No. 68-79,68-79 |
| Citation | 407 A.2d 170,137 Vt. 445 |
| Court | Vermont Supreme Court |
| Parties | Charles POTTER v. HARTFORD ZONING BOARD OF ADJUSTMENT. |
Guarino & Bean, White River Junction, for plaintiff.
William J. Donahue of Clauson, Struckhoff & Kelly, Hanover, for defendant.
Before BARNEY, C. J., DALEY, LARROW and HILL, JJ., and SMITH, J. (Retired), Specially Assigned.
The plaintiff received a building permit to construct a house in August, 1975. The grant of the permit was contested by his neighbors, but the superior court upheld its issuance in May, 1977. By November 15, 1977, the foundation for the house had been laid. In the spring of 1978, the town's zoning administrator discovered that a twelve-foot error had been made in digging the cellar hole. The town's zoning ordinance requires that the house be set back twenty-five feet from the road; in fact, it was only thirteen feet back. After learning of the violation, the plaintiff halted construction and applied for a zoning variance.
The Hartford Zoning Board of Adjustment, with one member absent, split evenly on his request, and no variance issued. The plaintiff petitioned for a rehearing before the full board. After that hearing, on July 10, 1978, his request was denied. A document, entitled "Findings of Fact," which was in the nature of minutes of the meeting, was issued on July 20. It was signed by the zoning administrator, who is the clerk, but not a voting member, of the Board.
The plaintiff then appealed to the superior court. It found that the "Findings of Fact" contained only conclusions reached by a majority of the Board. It therefore ruled that the Board had not complied with the mandate of 24 V.S.A. § 4470(a), which states that the "board shall render its decision, which shall include findings of fact, within forty-five days after completing the hearing . . . ." Because the section also provides that if its requirements are not met the variance shall be deemed to be approved, the court ordered the Board to issue the variance.
On appeal, the defendant admits that the "Findings of Fact" are conclusionary statements, but contends that such a "formal" error should not undermine the Board's decision. It argues that in the usual circumstances findings provide a criterion by which an appellate tribunal may determine whether the facts support the decision, In re J. M., 131 Vt. 604, 608, 313 A.2d 30, 32 (1973), but where, as here, the appellate tribunal conducts a de novo trial, the only rationale for requiring findings is to assure a full consideration of the facts. The defendant further asserts that the interpretation followed by the superior court violates due process. It argues that, as interpreted, the outcome of the case is a matter of chance and thus does not even meet the most minimum standards for rationality in legislation.
We cannot agree that § 4470(a) is irrational, is merely intended to assure a full consideration of the case, or is unconstitutional.
In Glabach v. Sardelli, 132 Vt. 490, 495, 321 A.2d 1, 5 (1974), we stated that § 4470
places the burden on a zoning board of adjustment not only to make a decision within the time provided but also to notify the appellant in writing of the decision within forty-five days from the time the appeal is heard. Only when both decision and notification are made within the forty-five day period is the judgment rendered. Further, if judgment is not rendered, as provided, the Legislature has plainly stated that the board shall have been deemed to have made a decision in favor of the appellant.
By the terms of § 4470(a),...
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City of Rutland v. McDonald's Corp.
...a deemed grant of the variance by operation of law. McDonald's relied successfully on the case of Potter v. Hartford Zoning Board of Adjustment, 137 Vt. 445, 447, 407 A.2d 170, 171-72 (1979). See also Benoit v. Town of Barre, 142 Vt. 608, 458 A.2d 1120 (1983) (conditional use permit deemed ......
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In re Ashline
...at 341, 533 A.2d at 1188. The superior court agreed with the landowners, relying on the language in Potter v. Hartford Zoning Board of Adjustment, 137 Vt. 445, 448, 407 A.2d 170, 172 (1979), that a "plaintiff's appeal was superfluous" because the plaintiff "automatically received a variance......
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McGlynn v. Town of Woodbury
...dismiss and for reconsideration, and granted plaintiffs' motion for summary judgment on the grounds that Potter v. Hartford Zoning Board of Adjustment, 137 Vt. 445, 407 A.2d 170 (1979), carved out an exception to the exclusivity provision cited In Potter, the plaintiff's application for a z......
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Hojaboom v. Town of Swanton
...under the 32 V.S.A. § 4461 appeal procedure the appellate tribunal conducts a de novo review. Potter v. Hartford Zoning Board of Adjustment, 137 Vt. 445, 446-47, 407 A.2d 170, 171-72 (1979); Punderson, Turning to the document in question, we observe the notation, "Detailed Findings on rever......
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Ruminations
...140 Vt. 290 (1981). [64] City of Rutland v. McDonald's Corp., 146 Vt. 324, 330 (1985); Potter v. Hartford Zoning Board of Adjustment, 137 Vt. 445 (1979). [65] Bevins v. King, 147 Vt. 645, 646 (1986); Bennett Estate v. Travelers Insurance Co., 140 Vt. 339(1981). [66] Jones v. Shea, 148 Vt. 3......