Richards v. Town of Norwich

• Decision Date: 29 January 1999
• Docket Number: No. 98-074.,98-074.
• Citation: 726 A.2d 81
• Court: Vermont Supreme Court
• Parties: Stuart RICHARDS v. TOWN OF NORWICH and Paul Z. Nowicki.

726 A.2d 81

Stuart RICHARDS v. TOWN OF NORWICH and Paul Z. Nowicki.

No. 98-074.

Supreme Court of Vermont.

January 29, 1999.

C. Daniel Hershenson of Hershenson, Carter, Scott & McGee, Norwich, for plaintiff-appellant.

Gary R. Wieland, White River Junction, for defendant-appellee Town of Norwich.

Laura O'Connor of Miller & Candon, Norwich, for defendant-appellee Nowicki.

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

AMESTOY, C.J.

Stuart Richards appeals a Windsor Superior Court order dismissing his Rule 75 appeal of the Town of Norwich selectboard's decision authorizing an on-site septic system permit for Paul Nowicki. Richards argues that he alleged facts in his complaint sufficient to assert standing and, therefore, the superior court erred when it dismissed his Rule 75 action for failure to state a claim upon which relief can be granted. We reverse.

In 1973, the Town of Norwich ("town") adopted an ordinance ("1973 ordinance") that established minimum standards regulating the design, construction and installation of new on-site septic systems to be located on any town lot. The minimum standards were intended to ensure that waste discharged from individual septic systems does not contaminate water, create a health hazard or constitute a nuisance. The 1973 ordinance also included a special-cases provision which allowed for the issuance of permits for septic systems which did not meet the standards, if the town septic administrator determined that the substandard septic systems were consistent with the protection of public health and safety.

Eleven years later, the Legislature adopted 24 V.S.A. §§ 3631-3635 ("state sewage statute") requiring the Secretary of Natural Resources to establish minimum standards for municipal ordinances regulating onsite septic systems. See 1983, No. 117 (Adj.Sess.). Under the state sewage statute, a municipality may adopt an ordinance regulating septic systems, but it must be at least as stringent as the minimum standards developed by the Secretary of Natural Resources in order to obtain the approval necessary to validate it. See 24 V.S.A. § 3633(b) (requiring certification to that effect by Department of Environmental Conservation).

The town amended the 1973 ordinance in 1994 and adopted a modified septic ordinance ("modified ordinance") even though the design specifications in the modified ordinance did not satisfy the state minimum standards and were not approved by the Department of Environmental Conservation. The noncompliance provision remained unaltered in the modified ordinance. In 1996, Paul Nowicki, a resident of the town, filed an application for a permit to install a new on-site septic system on his residential lot. His proposed septic system did not meet the minimum standards established by the modified ordinance. Nowicki requested and was granted approval of his septic system pursuant to the special-cases provision.

Stuart Richards appealed the decision authorizing Nowicki's substandard septic system to the Norwich selectboard. He complained that the septic administrator could not issue a permit for a septic system that failed to comply with the design specifications set out in the modified ordinance or the state minimum standards. After a hearing, in which Richards participated, the selectboard upheld the Nowicki septic system permit.

In April 1997, Richards filed a complaint in the superior court pursuant to V.R.C.P. 75 and the Declaratory Judgments Act, 12 V.S.A. §§ 4711-4725, seeking review of the selectboard's decision. Richards' complaint alleges that Nowicki's proposed septic system fails to meet state and local minimum standards governing the design, construction and installation of new on-site septic systems and, therefore, has the potential to contaminate water, constitute a health hazard and create an olfactory nuisance. The complaint further alleges that Richards is the owner of land directly abutting the property where Nowicki intends to install his proposed septic system. Subsequently, Nowicki filed a motion to dismiss pursuant to V.R.C.P. 12(b)(1) and 12(b)(6). The superior court granted the Rule 12(b)(6) motion and dismissed the case.

In its order granting Nowicki's motion, the court stated that on the face of the complaint, a plaintiff must allege at least the threat of an injury in fact to some protected interest in order to establish standing to seek declaratory relief. The court held that Richards did not satisfy the standing requirements for a declaratory judgment action because he did not allege any threat of actual injury and "Rule 75 does not cure the deficiency." The present appeal followed.

I.

As a threshold matter, we must determine whether Richards has the right under Rule 75 to appeal the selectboard's decision before we can decide whether the superior court erred in granting Nowicki's Rule 12(b)(6) motion. Nowicki argues that Richards is not entitled to a Rule 75 appeal of the selectboard's decision because he seeks review of issues of fact.

In relevant part, Rule 75 permits the appeal of (1) any action by a political subdivision of the state, including any board, (2) which is not appealable under Rule 74, (3) if review is otherwise available by law. See V.R.C.P. 75(a). This Court has interpreted the Rule 75 requirement that review must be "otherwise available by law" to include situations where review was formerly available through a writ of certiorari. See Vermont State Employees' Ass'n v. Vermont Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997). Prior to its abolition, review by writ of certiorari was limited to quasi-judicial acts of government agencies and confined to substantial questions of law affecting the merits of the case. See Burroughs v. West Windsor Bd. of Sch. Dirs., 141 Vt. 234, 237, 446 A.2d 377, 379 (1982).

The Town of Norwich is a political subdivision of the state and the selectboard is a board thereof. Thus, Richards satisfies the first prerequisite to Rule 75 review. Because neither the state sewage statute nor the Norwich septic ordinance provide for review, Richards meets the second prerequisite to Rule 75 review as well. See V.R.C.P. 74(a) (Rule 74 applies only when right to appeal decisions of governmental agencies is granted by statute). Finally, a writ of certiorari would have permitted an appeal in the instant case since the proceedings on Nowicki's application for a septic system permit were quasi-judicial in nature: the parties were allowed representation by counsel, testimony was presented to and considered by the selectboard and a decision was issued. See In re St. George, 125 Vt. 408, 411-12, 217 A.2d 45, 47 (1966) (selectboard exercises quasi-judicial duties in determining facts and deciding whether grant of landfill permit will give rise to nuisance). Therefore, Richards satisfies the prerequisites for a Rule 75 appeal of the selectboard's decision.

Nowicki, however, contends that a Rule 75 appeal is not available to Richards because he improperly seeks factual review of whether Nowicki's septic system meets the state minimum standards. He argues that Richards claimed in his reply to Nowicki's motion for summary judgment that there were numerous material issues of fact in dispute for which Richards sought review. Nowicki claims that because Richards' complaint was filed pursuant to the Declaratory Judgments Act, that permits review of the selectboard's factual findings, Richards seeks to impermissibly enlarge the jurisdiction of the superior court under Rule 75. See Molesworth v. University of Vermont, 147 Vt. 4, 7, 508 A.2d 722, 723 (1986) (Declaratory Judgments Act has neither increased nor enlarged jurisdiction of superior court).

Nowicki correctly notes that an appeal pursuant to the former writ of certiorari was limited to review of judicial action by inferior courts and confined to substantial questions of law affecting the merits of the case. See Burroughs, 141 Vt. at 237, 446 A.2d at 379. Thus, Rule 75 provides only for review of legal issues raised by the selectboard's issuance of a permit for Nowicki's substandard septic system. See Molesworth, 147 Vt. at 7, 508 A.2d at 723 (Rule 75 review of decision denying student resident tuition status confined to review of university residency officer's quasi-judicial action and limited to addressing substantial questions of law affecting merits of case).

In his complaint, Richards requests an order declaring that the selectboard's decision to issue a permit for Nowicki's substandard septic system violates the state sewage statute. Nowicki attempts to characterize Richards' complaint as a request for a factual determination of whether the design specifications of Nowicki's septic system comply with the minimum...