Richards v. Nowicki

• Decision Date: 23 March 2001
• Docket Number: No. 99-406.,99-406.
• Citation: 772 A.2d 510
• Court: Vermont Supreme Court
• Parties: Stuart RICHARDS v. Paul Z. NOWICKI and Town of Norwich.

772 A.2d 510

Stuart RICHARDS v. Paul Z. NOWICKI and Town of Norwich.

No. 99-406.

Supreme Court of Vermont.

March 23, 2001.

C. Daniel Hershenson and Anthony Z. Roisman of Hershenson, Carter, Scott & McGee, Norwich, for Plaintiff-Appellant.

Laura O'Connor, Sharetha S. Marsicovetere and John C. Candon of Miller & Candon, LLC, for Defendant-Appellee Nowicki.

Gary R. Wieland, White River Junction, for Defendant-Appellee Town of Norwich.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Plaintiff Stuart Richards appeals from the Windsor Superior Court's order granting the summary judgment motion of defendants, Town of Norwich (Town) and Paul Nowicki (defendant), dismissing plaintiff's challenge to a sewage disposal permit issued by the Town to defendant. On appeal, plaintiff argues that (1) the Town's 1994 amendments to its septic ordinance are invalid, and, as a result, defendant had to comply with state minimum technical standards for a sewage disposal system; (2) plaintiff has a vested right to consideration of defendant's sewage disposal system under the 1994 amendments to the Town's septic ordinance; (3) if the 1994 amendments do not apply, the decision to award defendant a permit is inconsistent with the provisions of section IV of the 1973 ordinance; (4) the Town selectboard ruled erroneously, and denied plaintiff due process of law, when it granted defendant a permit under the standards of the 1973 ordinance, even though the hearing was conducted under the standards of the 1994 amendments; and (5) section VII of the 1973 septic ordinance is unconstitutional because it is vague and grants discretion to the selectboard to issue a sewage disposal system without adequate standards to govern the exercise of its discretion. We disagree and affirm the decision of the Windsor Superior Court.

Plaintiff and defendant are adjoining landowners. Plaintiff has a principal residence on his lot. In 1996, defendant proposed to build a residential dwelling on his lot. Because of the size and topography of defendant's lot, as well as the presence of a stream and water line across it, defendant could not comply with the provisions of the Town septic ordinance. Accordingly, he applied for a special case exception under a specific authorization contained in the ordinance. Both the Town board of health, and on appeal the board of selectmen, authorized issuance of a sewage disposal permit, the latter on March 11, 1997. Plaintiff then appealed to the Windsor Superior Court, which initially ruled that plaintiff lacked standing to seek court review of the sewage disposal permit decision.

Appeal of the standing decision led to our first opinion in this dispute. In Richards v. Town of Norwich, 169 Vt. 44, 726 A.2d 81 (1999) (Richards I), this Court held that Richards had the right under V.R.C.P. 75 to appeal the selectboard's approval of defendant's septic system and that the complaint sufficiently established Richards' standing to challenge that decision. For purpose of this decision, the most important part of the earlier opinion is its description of the scope of review. Because this is a review proceeding under V.R.C.P. 75, in the nature of certiorari, review is limited to "legal issues raised by the selectboard's issuance of a permit." Richards I, 169 Vt. at 48,726 A.2d at 84.

On remand from this Court, both parties renewed their motions for summary judgment. The court granted defendant's motion, holding that the sewage disposal permit application was properly reviewed under the special cases provision of the septic ordinance, and that the Town correctly applied the provision. In reaching this decision, the court held that the 1973 Town septic ordinance applied to defendant's permit application and that the septic system did not have to comply with state standards.

Each of the first two issues raised by plaintiff relate to the underlying question of which version of the Town septic ordinance, if any, applies to defendant's application. We start with an examination of that question. In 1973 the Town adopted an ordinance that established minimum standards regulating the design, construction, and installation of any new septic systems to be located on any town lot. The minimum standards were intended to ensure that waste discharged from these systems did not contaminate water, create a health hazard, or constitute a nuisance. The 1973 ordinance also included a special cases provision, section VII, which provides:

SECTION VII. SPECIAL CASES

1. If, due to unusual physical circumstances of the building to be served, or the site where the work is to be located, the applicant believes that a permit granted to him would be consistent with the protection of the public health and safety without full compliance with the requirements of these regulations, he shall give a full statement of all pertinent information in his application. The Administrator shall thereupon forward such application to the local Board of Health with his recommendations.

The Town amended the 1973 ordinance in 1994, to establish new detailed specifications for permitted systems. The amendments did not change the procedural provisions of the ordinance and did not eliminate or change the wording of the special cases provision in section VII. By the time of the 1994 amendments, the Legislature had required the Vermont Secretary of Natural Resources to adopt "minimum standards for municipal ordinances regulating sewage systems." 24 V.S.A. § 3632(a) (effective July 1, 1984). Any ordinances adopted after the effective date of this requirement had to be submitted to the Secretary and could not "take effect until ... approved by the department of environmental conservation as being at least as stringent as the minimum standards under section 3632." Id. § 3633(b). Apparently the Town believed that if it amended the existing ordinance, rather than adopting a new one, and limited the amendments to the detailed specifications, it could avoid review under § 3633(b). It never submitted the ordinance amendments to the Department of Environmental Conservation after they were adopted.

Plaintiff and the Town now agree that the Town was required to obtain the approval of the department to put into effect the provisions of the 1994 amendments. As detailed below, there is disagreement on the effect of this lack of approval on this proceeding. The Town determined that the failure of the 1994 amendments to take effect left in place the provisions of the 1973 ordinance, which remain in effect under 24 V.S.A. § 3633(d). That provision states that municipal sewage ordinances approved under 18 V.S.A. § 613 prior to July, 1984 "shall remain in effect and shall be deemed to have been adopted and approved under this section."¹ There is no dispute that the 1973 Town septic ordinance was approved prior to 1984 pursuant to 18 V.S.A. § 613.

If the Town had reached its current position before the board of selectman granted the permit to defendant, some of plaintiff's issues on appeal would have been avoided. However, defendant applied for a permit under the understanding that the 1994 amendments were in effect, and the selectboard approved the permit under the same understanding. On June 6, 1997, while this case was on appeal to the superior court, the selectboard adopted a resolution stating that it "recently became aware that the May 1994 amendment to the Norwich Septic Ordinance was required to be approved by the Department of Environmental Conservation" and that legal counsel had advised that the 1994 amendments had "not taken effect" and the 1973 ordinance was validated by 24 V.S.A. § 3633(d) and was not repealed by the ineffective amendment. The selectboard resolved that the 1973 septic ordinance "remains in full force and effect" and noted that "this action will not invalidate or affect any permits issued since May 1994."

In his complaint in this case, filed before the Town issued its resolution, plaintiff attacked the Town's action in part because the Town had failed to obtain approval for the 1994 amendments under § 3633(b). Thus, the Town's resolution simply conceded a point which plaintiff was raising on appeal.

We also note at the outset that the superior court resolved this case on summary judgment. This Court reviews a motion for summary judgment under the same standard as the trial court. O'Donnell v. Bank of Vermont, 166 Vt. 221, 224, 692 A.2d 1212, 1214 (1997). Summary judgment is appropriate when the record clearly indicates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Politi v. Tyler, 170 Vt. 428, 431, 751 A.2d 788, 790 (2000).

We begin with the consequences of the failure of the Town to seek Department of Environmental Conservation approval for the 1994 amendment to the septic ordinance. Both parties agree that the Town was required to obtain such approval. The Town took the position that the failure to obtain approval meant that the 1994 amendments never went into effect, leaving in place the 1973 ordinance. Arguing primarily from In re White, 155 Vt. 612, 587 A.2d 928 (1990), and Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457 (1969),² plaintiff urges instead that the failure to comply with § 3633(b) means that the state minimum standards are incorporated into the Norwich septic ordinance and defendant does not comply with those minimum standards. In White, the Town of Randolph failed to comply with a legislative mandate that its zoning criteria for granting a conditional use permit contain certain statutory general standards. We held, however, that the failure to include these standards in the town zoning ordinance did not make the ordinance invalid or require that a landowner be given a conditional use permit without complying with the statutory standards. Instead, we held that the consequence was that the statutory standards became a part of the town...