Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 09-432.

Citation9 A.3d 685, 2010 VT 82
Case DateOctober 21, 2010
CourtUnited States State Supreme Court of Vermont
9 A.3d 685
2010 VT 82


No. 09-432.

Supreme Court of Vermont.

As Modified Oct. 21, 2010.
Sept. 27, 2010.

9 A.3d 686

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.


¶ 1. Landowner Rhoades Salvage/ABC Metals appeals from a decision denying its application for a certificate of approved location for a junkyard. We affirm.

¶ 2. Landowner operates a junkyard in the Town of Milton. In April 1974, the Town Zoning Administrator issued a certificate of approval for this junkyard pursuant to 24 V.S.A. § 2251, noting that though the junkyard is located in a zoned residential district, the use of the land as a junkyard qualified as a "preexisting nonconforming use" under the Town's zoning laws. Landowner was granted certificates of approval from the Town in 1993, 1996, and 1998. In 2001, however, landowner's location approval lapsed. Landowner paid back taxes and fees to the Town, and in January 2008, landowner applied for a new certificate of approval. Following a hearing by the selectboard, landowner's application was denied.

¶ 3. Landowner appealed the denial to the Chittenden Superior Court pursuant to Vermont Rule of Civil Procedure 75 and moved for summary judgment on the matter. In its motion for summary judgment, landowner argued that though the statute

9 A.3d 687
governing appeals of junkyard location approvals was silent as to the standard of review, the court should analogize to appeals of zoning and other municipal board decisions and employ de novo review. In its reply brief, landowner also requested that it be allowed to supplement its motion after an opportunity to review the transcripts, though it does not appear that landowner ever actually did this. In an order dated May 11, 2009, the court rejected landowner's argument as to the standard of review and concluded that the appropriate review was on the record. The court ordered the Town to prepare, serve, and file a certified transcript of any oral proceedings conducted by the selectboard.

¶ 4. Applying a deferential standard of review to the selectboard's decision, the court examined the statutory criteria provided in 24 V.S.A. § 2254 and looked to whether there was "some rational basis" for the selectboard's denial of the certificate. The court ultimately affirmed the selectboard's denial of landowner's junkyard location application. This appeal followed.

¶ 5. On appeal, landowner makes three arguments: (1) the superior court applied the improper standard of review in upholding the denial; (2) the denial was not supported by the facts; and (3) landowner was erroneously denied compensation for the costs of relocating the junkyard. We address each in turn.


¶ 6. We review the superior court's legal conclusion with regard to the proper standard of review de novo. See Barnett v. Town of Wolcott, 2009 VT 32, ¶ 5, 185 Vt. 627, 970 A.2d 1281 (mem.) ("Our review of legal conclusions ... is nondeferential and plenary."); Searles v. Agency of Transp., 171 Vt. 562, 562, 762 A.2d 812, 813 (2000) (mem.) (where issue is one of law "our review is nondeferential and plenary").

¶ 7. To operate a junkyard, a landowner must obtain a certificate of approval for the location of the junkyard from the town municipal board. 24 V.S.A. § 2242. Following a decision by the municipal board granting or denying an application, a party may appeal to the superior court. Id. § 2255.1 The statute, however, is silent as to the standard of review to be employed by the superior court:

Any person dissatisfied with the granting or denial of an application may appeal to the superior court for the county in which the proposed junkyard is located. The court by its order may affirm the action of the legislative body or direct the legislative body to grant or deny the application.

¶ 8. The superior court here, analogizing to the presumption of on-the-record review of agency decisions, limited its review to "whether, on the record developed before the agency, there is any reasonable basis for the finding." Landowner, however, argues that the court erred by failing to review the denial of the certificate de novo and that the decisions relied on by the superior court-all of which involve review of agency decisions-are distinguishable. Landowner argues that unlike an appeal from an administrative agency, whose decisions involve formal proceedings and specific expertise, a town selectboard

9 A.3d 688
employs a "very informal proceeding with members having no expertise." Thus, landowner argues, a closer analogy is the appeal process from decisions rendered by municipal panels or boards to the Environmental Court, which are de novo pursuant to separate statutes. See, e.g., 10 V.S.A. § 8504(h) ("The environmental court, applying the substantive standards that were applicable before the tribunal appealed from, shall hold a de novo hearing on those issues which have been appealed ...."). Finally, landowner points to the recent amendment to the junkyard statutes changing the appeal process for junkyard location certificate decisions to review by the Environmental Court, where review is generally de novo. 2009, No. 56, § 13 (adding 24 V.S.A. § 2255(d)); see generally V.R.E.C.P. 5(g) & (h).

¶ 9. Landowner's arguments with regard to the appropriate standard of review are unavailing. Notwithstanding landowner's claim that our decision in Town of Victory v. State, 2004 VT 110, 177 Vt. 383, 865 A.2d 373, is distinguishable, the analysis employed in that case is relevant. There, we addressed the standard of review governing an appeal of an appraisal of property by the division of property valuation and review to the superior court where the statute was silent as to this issue. We rejected the taxpayer's argument that the superior court should have reviewed the appeal de novo, and noted instead that "we presume that judicial review of administrative decisions is deferential absent a clear statement of contrary intent." Id. ¶ 16. We also noted that on-the-record review is particularly appropriate in "contested cases where there has been an adjudication in the agency" and where the adjudicative body has special expertise. Id. ¶ 17; see also Conservation Law Found. v. Burke, 162 Vt. 115, 126, 645 A.2d 495, 501-02 (1993) ("The nature of review is determined by the Legislature, but we presume that review will be on the record and not de novo."); Dep't of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294-95, 415 A.2d 216, 218-19 (1980) (stating that judicial review of agency decisions is presumed to be on the record absent specific statutory authorization to the contrary). More recently, we rejected a taxpayer's claim that it was entitled to de novo review of an appeal from a denial of a tax refund by the Department of Taxes where the statute was silent as to the appropriate review. See GP Burlington S., LLC v. Dep't of Taxes, 2010 VT 23, ¶ 16, 187 Vt. ----, 996 A.2d 180. In rejecting de novo review, we refused to put the superior court "in the position of substituting its decision for agency inaction, without even the benefit of a formal record, in specialized areas ordinarily reserved for the agency to implement policy and apply statutory law" and declined to "have the courts perform these executive functions absent clear legislative authorization." Id.

¶ 10. Here, the Legislature has deliberately delegated power to the selectboard, charging that body with applying the broad criteria (not challenged by landowner) outlined in the junkyard location statute. In this role, the selectboard employs the special function of a local legislative body in taking into account purely subjective considerations such as protecting the Town's "attractive environment." See 24 V.S.A. § 2254. The rationale behind limiting review of such decisions is grounded in separation-of-powers principles and the concern that local officials are generally more familiar with the interests of their community and are best equipped to make decisions on local matters, such as location of a junkyard, that will have an immediate effect on the municipality. See Agency of Transp. v. Wall Mgmt., 144 Vt. 640, 643, 481 A.2d 1270, 1272 (1984) (noting that where statutes grant municipal entity

9 A.3d 689
broad discretion with respect to a determination of highway location and route, "we will not interfere with that determination as long as it is made in good faith and is not capricious"); 5 E. McQuillin, The Law of Municipal Corporations § 184, at 626 (rev.3d ed.2004) ("[T]he general rule is uniformly applied that powers granted in comprehensive terms must be reasonably exercised. It is the province of the court to protect the individual from unreasonable, oppressive, or arbitrary exercise of power within the limits of our constitutional and legal system."). Thus, absent legislative authorization of de novo review, the superior court was correct in affording deference to the selectboard's determination.2

¶ 11. Moreover, the record here was adequately developed in the proceeding before the selectboard. The transcripts indicate that, though informal, there were two separate hearings, in which landowner was represented by counsel, as well as a site visit by the selectboard to the junkyard. Landowner had ample opportunity to present evidence during these proceedings. Landowner also had an opportunity to supplement his motion for summary judgment during the appeal before the superior court, but for reasons unknown, he neglected to do so.


¶ 12. Landowner next contends that even under on-the-record review, the selectboard's findings were contrary to the evidence and the superior court's decision upholding these findings in its grant of summary judgment to the Town was erroneous. Specifically, landowner argues that the selectboard's findings were largely arbitrary and did not provide a "rational connection" to the statutory criteria. We disagree.

¶ 13. In an...

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