Town of Mendon v. Ezzo

• Decision Date: 01 June 1971
• Docket Number: No. 156-70,156-70
• Citation: 129 Vt. 351,278 A.2d 726
• Parties: TOWN OF MENDON v. Anthony EZZO.
• Court: Vermont Supreme Court

Page 726

278 A.2d 726

129 Vt. 351

TOWN OF MENDON v. Anthony EZZO.

No. 156-70.

Supreme Court of Vermont.

June 1, 1971.

Theodore Corsones, Rutland, for plaintiff

Dick, Hackel & Hull, Rutland, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

At the instance of the plaintiff town of Mendon, the Rutland County Court of Chancery enjoined the defendant from completing construction of a building in that town. The injunctive relied is founded on the chancellor's determination that the proposed construction violates the interim zoning regulations adopted by the town on June 16, 1969.

This appeal by the defendant attacks the chancellor's decree in two aspects. The first challenges the validity of the ordinance According to the chronology stated in the chancellor's findings, the defendant in March 1966 acquired title in the name of members of his family in a two acre parcel of land in the South Mendon area of the plaintiff town. On March 5, 1968, the voters at a duly warned town meeting authorized he selectmen of the town to propose zoning regulations, apparently as provided in 24 V.S.A. § 3002 then in effect. In January of the following year the defendant engaged the services of an out of state builder to erect a building on the property of his wife and daughter. It was his intention at that time to construct a redwood building on the south portion and a sporting goods store on the north part of the property.

for procedural and substantive defects in the enactment of the regulation. His second point is that the injunction deprives him of a vested right to the use of his property which he had undertaken prior to the interim Zoning Enactment and hence is not subject to the regulation imposed on June 16, 1969.

In March 1969 the defendant went forward with his plans to develop the two acre plot. Financing for the project was arranged, a builder engaged and lumber purchased for the footings for this construction. Before actual construction of these buildings was commenced, the defendant completed building an auto repair shop on the same parcel on April 11, 1969. In May the defendant brought in some 520 yards of gravel, staked out the area and leveled portions of the land by means of a bulldozer. The chancellor's findings report that this operation increased the value of the premises and provided a parking area for the defendant's auto repair business. No excavation was made, nor were any footings or foundations constructed prior to May 24, 1969.

On that date the selectmen of Mendon caused the following notice to be posted in three public places and published in the Rutland Herald, a daily newspaper of local and statewide circulation:

MENDON MENDON

WARNING

The legal voters of the Town of Mendon are hereby warned that a public hearing will be held at the Grange Hall in Mendon, Vermont, on June 9, 1969, at 7:30 P.M. to consider adopting as an emergency measure, temporary interim zoning regulations affecting South Mendon, so-called, that is, that part of Mendon that lies west of East Mountain and south of U.S. Route 4, which will provide that no permit be granted in this area for any type of development other then one acre, minimum residential development except by the legislative body of the Town of Mendon, after due notice and public hearing, on each application and upon receipt of the recommendations of the planning commission in each case, all pursuant to 24 V.S.A. Sec.4410

Mendon, Vermont R. E. Bossardt

May 22, 1969 M. H. Spaulding

J. H. Valiquette

(Pl. Ex. 2) Selectmen

The public hearing called for in the notice was held on June 9, 1969. Finding 11 reports that '(a)fter considering the views of the people as presented at the public hearing, interim zoning was adopted on June 16, 1969.' The zoning regulations adopted by the selectmen on this date were received as evidence and supplement the findings of the chancellor.

During the July following the adoption of these regulations the defendant started excavation for building a gun shop. In September 1969 forms for the footings of the building were constructed and the concrete poured. The findings conclude with the determination that the building proposed to be erected by the defendant is in violation of the zoning regulations adopted for the town of Mendon. The defendant was enjoined from proceeding further with the proposed construction.

Our first concern is with the procedural requirements for temporary zoning imposed by the Vermont Planning and Development Act, stated in 24 V.S.A. § 4410. 1967, No. 334 (Adj.Sess.) § 1 effective March 23, 1968. This section was later amended in 1969 (1969, No. 116 § 9), but since the regulations, which are the subject of this appeal, were adopted prior to the effective date of the amendment, we must take this part of the statute as first enacted in 1967. As then written, § 4410 provided:

If a municipality is conducting, or has taken action to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a plan or zoning regulations or an amendment, extension, or addition to either, or if new territory for which no zoning regulations have been adopted may be annexed to a municipality, the legislative body in order to protect the public health, safety, and general welfare may adopt after public hearing upon public notice as an emergency measure a temporary interim zoning map or temporary interim zoning regulations affecting all or a part of the municipality. Such interim regulations shall be limited to two years from the date they become effective and may not be extended or reenacted for the same purpose. Such interim regulations shall provide that within such designated area, which may include all areas of the municipality, no permit may be granted for any type of development other than one acre, minimum residential development except by the legislative body after due notice and public hearing on each application, and upon receipt of the recommendations of the planning commission in each case.

The temporary zoning regulations of Mendon were adopted 'after public hearing upon public notice as an emergency measure-.' These are the basic requisites of § 4410. The defendant maintains this is not enough. He contends that the validity of emergency zoning demands compliance with all of the provisions of 24 V.S.A. § 4447 of the Planning and Development Act. In meeting this question, we take the case on its merits, without reference to an oral statement concerning this point made at the hearing before the chancellor by trial counsel for the defendant.

This section provides:

Any public notice required for public hearing under this chapter shal be given by the publication of the date, place and purpose of such hearing in a newspaper of general publication in the municipality affected and the posting of such notice in one or more public places within the municipality not less than fifteen days prior to the date of the public hearing. Where such hearing is called in reference to a plan or amendment thereto, or to any by-law or amendment thereof, or any other matter relating to written material, such public notice shall also include either the full text of such material or a brief summary setting forth the principal provisions and a reference to a place within the municipality where copies of the proposed material may be examined.

The shortages claimed are that the public notice given by the selectmen failed to provide a brief summary of the principal provision of the regulations and make no reference to a place in the town where copies of the regulations may be examined.

There is an essential difference in the procedural requirements for temporary zoning and those imposed for the adoption of a comprehensive zoning plan. There is well founded judicial recognition of the fact that substantial time and effort are required to compose a sound comprehensive zoning plan. It would be destructive of the final result and purpose of comprehensive zoning if, during the critical formulative period, persons seeking to avoid its operation could frustrate the plan by hastening construction before the permanent ordinance could be adopted. The temporary zoning authorized by our statute is designed to avoid this consequence. And as a temporary expedient of limited duration, it is not to be held to the same procedural strictures required of the adoption of the final plan. Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, 1489, writ of error dismissed, 273 U.S. 781, 47 S.Ct. 460, 71 L.Ed. 889; Town of Lebanon v. Woods, 153 Conn. 182, 315 A.2d 112, 115. See also, Deal Gardens, Inc. v. Board of Trustees, 48 N.J 492, 226 A.2d 607, 611; 58 Am.Jur., Zoning § 237; 101 C.J.S. Zoning §§ 18-19; annotations 30 A.L.R.3d 1196; 136 A.L.R. 845, 846.

The requirements of § 4447 that public notice be given by publication and posting within the time specified of the date, place and purpose of the public hearing, have been fulfilled by the plaintiff. This was proper since the hearing was called under the provisions of Chapter 91 of Title 24. However, the further requirement of § 4447 relates only to a plan or by-law that is proposed in written material.

There is no statutory mandate that specific proposal for temporary zoning be reduced to writing before the notice is published and the hearing held. The language of 24 V.S.A. § 4410 persuades us that such a requirement was not intended by the lawmakers. The only restriction imposed for such an emergency regulation is that the selectmen withhold adoption until-'after public hearing and public notice.' And this requirement is imposed to aid the legislative body in designing and adopting appropriate provisions to accomplish interim zoning.

There is nothing in the record at hand to indicate the plaintiff's zoning regulations of June 16, 1969 had progressed to the point of inscription at...