South Burlington v. DEPT. OF CORRECTIONS, No. 99-308.

Docket NºNo. 99-308.
Citation762 A.2d 1229
Case DateJuly 19, 2000
CourtUnited States State Supreme Court of Vermont

762 A.2d 1229

CITY OF SOUTH BURLINGTON
v.
DEPARTMENT OF CORRECTIONS

No. 99-308.

Supreme Court of Vermont.

July 19, 2000.

Motion for Reargument Denied October 23, 2000.


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

ENTRY ORDER

The City of South Burlington appeals from a dismissal of their action for failure to state a claim for an injunction enforcing the terms of a zoning permit granted to the Department of Corrections. The City argues that the trial court erred in: (1) holding that the Department was not bound by the exclusivity-of-remedy provision for zoning disputes under 24 V.S.A. § 4472; and (2) holding that the Department is, as an agency of the sovereign, immune from local zoning regulations. We agree with the first claim of error and reverse.

The State of Vermont, through the Department of Corrections (the Department), operates a prison on property located in the City of South Burlington (the City). In 1992, the Department applied to the City planning commission for site plan approval to add 5,000 square feet of administrative space to the Chittenden Regional

762 A.2d 1230
Correctional Facility. In its application, the Department represented that the expansion would not result in an increase in either inmates or employees. The planning commission therefore made specific findings of fact that the facility would not increase its number of employees nor its number of inmates. The commission went on to note that no additional parking spaces were needed, nor would any additional sewer demand be generated because there would not be any additional inmates or employees. The commission also observed that although the prison was a prior nonconforming use, the degree of nonconformity would not increase due to the administrative expansion. The commission concluded, "[t]his approval is conditional on a maximum of 197 permanent or semi-permanent beds. Any increase in permanent or semi-permanent beds shall require Planning Commission approval." The Department did not appeal this decision. Seven years passed

In January 1999, the City sought to enjoin the Department from using the facility to house more than 197 inmates. The City alleges that since 1997 the Department has regularly housed more than 197 inmates at the facility. The Department moved to dismiss the complaint, claiming sovereign immunity from suit, and the court granted the motion. The City appeals.

Below, the City argued that 24 V.S.A. § 4472 barred the Department from challenging the validity of the 197-inmate limitation because the Department did not appeal the 1992 decision. Section 4472(a) provides:

Except as provided in subsection (b) and (c) hereof, the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, [in a matter of municipal planning and zoning] shall be the appeal to the board of adjustment or the development review board under section 4464 of this title ....

We have "strictly enforced the exclusivity-of-remedy provision consistent with the evident legislative intent to require all zoning contests to go through the administrative review process in a timely fashion." Town of Sandgate v. Colehamer, 156 Vt. 77, 84, 589 A.2d 1205, 1209 (1990) (collecting cases). We have recognized that the policy underlying the statute is to assure parties of finality. See Levy v. Town of St. Albans, 152 Vt. 139, 142, 564 A.2d 1361, 1363 (1989). Thus, subsection (d) declares:

Upon the failure of any interested person to appeal to a board of adjustment under section 4464 of this title, or to appeal to a superior court under section 4471 of this title, all interested persons affected shall be bound by such decision or act ... and shall not thereafter contest, either directly or indirectly, such decision or act ... in any proceeding, including, without limitation, any proceeding brought to enforce this chapter.

24 V.S.A. § 4472(d) (emphasis added). The broad and unmistakable language of this provision is designed to prevent any kind of collateral attack on a zoning decision that has not been properly appealed through the mechanisms provided by the municipal planning and development statutes.

We have enforced these sections of § 4472, which are two sides of the same coin, uniformly in cases stretching back several decades. In Colehamer, 156 Vt. at 85, 589 A.2d at 1210, we held that the plain language of § 4472 "clearly applies to defenses raised in enforcement proceedings and clearly applies to attacks on the validity of zoning provisions unless they raise constitutional...

To continue reading

Request your trial
16 practice notes
  • In re Hopkins Certificate of Compliance, No. 19-249
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2020
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230-31 (2000) (mem.). Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, " ......
  • Town of Pawlet v. Banyai, 2021-096
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 14, 2022
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.). ¶ 16. We have previously applied § 4472 to an unappealed notice of violation. In Town of Charlotte v. Richmond, a town zo......
  • Town of Pawlet v. Banyai, 21-096
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 14, 2022
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.).¶ 16. We have previously applied § 4472 to an unappealed notice of violation. In Town of Charlotte v. Richmond, a town zon......
  • In re Hopkins Certificate of Compliance, No. 2019-249
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2020
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230-31 (2000) (mem.). Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, " ......
  • Request a trial to view additional results
16 cases
  • In re Hopkins Certificate of Compliance, No. 19-249
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2020
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230-31 (2000) (mem.). Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, " ......
  • Town of Pawlet v. Banyai, 2021-096
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 14, 2022
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.). ¶ 16. We have previously applied § 4472 to an unappealed notice of violation. In Town of Charlotte v. Richmond, a town zo......
  • Town of Pawlet v. Banyai, 21-096
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 14, 2022
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230 (2000) (mem.).¶ 16. We have previously applied § 4472 to an unappealed notice of violation. In Town of Charlotte v. Richmond, a town zon......
  • In re Hopkins Certificate of Compliance, No. 2019-249
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 19, 2020
    ...mechanisms provided by the municipal planning and development statutes." City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230-31 (2000) (mem.). Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, " ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT