Town of Sandgate v. Colehamer

• Decision Date: 30 November 1990
• Docket Number: No. 88-340,88-340
• Citation: 156 Vt. 77,589 A.2d 1205
• Court: Vermont Supreme Court
• Parties: TOWN OF SANDGATE, et al., v. Raymond COLEHAMER.

Page 1205

589 A.2d 1205

156 Vt. 77

TOWN OF SANDGATE, et al., v. Raymond COLEHAMER.

No. 88-340.

Supreme Court of Vermont.

Nov. 30, 1990.

Motion for Reargument Denied Feb. 6, 1991.

Witten, Saltonstall & Woolmington, P.C., Bennington, for plaintiffs-appellees.

Michael Rose, St. Albans, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

Defendant, Raymond Colehamer, appeals an injunction, dated June 2, 1988, granted pursuant to 24 V.S.A. §§ 2241-2283, by the Bennington Superior Court in favor of plaintiffs, the Town of Sandgate and its selectmen and the Sandgate Zoning Board of Adjustment. The injunction was issued in a suit in which plaintiffs sought the removal of junk cars and a boat from the property occupied by defendant and owned by Sonia Siwik, who is also joined as a defendant. We reverse and remand.

Plaintiffs appeal the court's February 25, 1986 decision denying them an injunction for failure to set forth sufficient facts supporting the Town's decision to amend its zoning ordinance. We reverse and remand that order also. The effect of our action is to authorize an injunction similar to that issued by the trial court but based on the Sandgate Zoning Ordinance and not on the state junkyard statute.

Defendant resides in the mountainous region of Sandgate, Vermont, where, according to the Town Plan, "there is virtually no commercial use of land ... other than a few home occupations." The log cabin in which he resides and the surrounding land is actually owned by defendant's former girl friend, Sonia Siwik, ¹ but she moved out some time ago to live elsewhere. Defendant currently makes the mortgage payments on the cabin.

Since 1968, when defendant moved onto the property, he has accumulated "a collection of kitchen appliances, lawn mowers, automobiles, used wood, old tires, gas cans, steel drums, cable reels and a small yacht," which are left outside around the land. Among the items strewn about the land are twenty-one unregistered vehicles and a boat. The trial court found that the property was not used as a junkyard, since there is no commercial activity. A neighbor testified that defendant's residence is an eyesore which devalues the property of its neighbors in the area.

Apparently, in response to the situation on the property on which defendant resided, the Town amended its zoning ordinance in 1985 to prohibit the storage of junk cars on property within the Town. An amendment was adopted that made it illegal to have "more than one inoperable motor vehicle ... stored on any lot for a period in excess of thirty days unless within a building or totally screened from view from off the premises." The amendment required existing uses to be brought into compliance within ninety days of the effective date of the amendment. On July 16, 1985 the Town zoning administrator issued citations to Sonia Siwik and Raymond Colehamer for violation of the newly amended ordinance, giving them thirty days in which to bring the property into compliance with the amendment. On August 2, 1985, defendant appealed to the zoning board of adjustment. Sonia Siwik did not appeal. Although the Board found the appeal to be untimely, it held a hearing on September 30, 1985, and defendant failed to appear. The Board found defendant in violation of the ordinance and ordered him to remove the junk vehicles and the boat, within thirty days of receipt of the decision.

At this point, the action shifted to Bennington Superior Court to which defendant appealed the decision of the Sandgate Zoning Board. Again Sonia Siwik did not join in the appeal. Shortly thereafter, plaintiffs brought an action against defendant and Sonia Siwik seeking an injunction to require defendant to remove the junk vehicles, along with civil fines. The actions were combined and heard in early 1986. Sonia Siwik never answered plaintiffs' complaint and testified at the hearing that she wanted the court to order the removal of the cars. The court denied plaintiffs' requests for relief and reversed the decision of the zoning board, concluding that the junk car amendment to the zoning ordinance was invalid because it was not supported by the Town plan.

An attempted appeal to this Court failed because we found that there was no final judgment since the court had not resolved plaintiffs' claim that they were entitled to relief under the state junkyard statute, 24 V.S.A. §§ 2241-2283, and the common law of nuisance. The trial court then decided that plaintiffs were entitled to relief under the statute. It found that defendant had maintained junk motor vehicles within view of the main-traveled public highway in violation of 24 V.S.A. §§ 2242(2) and 2271. Accordingly, the court issued an injunction requiring defendants to remove the boat and all unregistered motor vehicles within the view of the traveled way of any public highway by 5 p.m. on July 5, 1988. Further, defendants were prohibited from placing any other junk motor vehicles on the property within view of the main traveled way of any public highway. If defendants failed to comply with the order, plaintiffs were authorized to remove the junk motor vehicles and dispose of them to pay for their removal costs. Since the court granted plaintiffs relief under the state junkyard statute, it did not reach plaintiffs' common-law nuisance claim. Both defendant ² and plaintiffs ³ appeal the trial court's decision.

I.

We consider first plaintiffs' appeal from the 1986 decision that the provisions of the ordinance with respect to junk vehicles are invalid. Plaintiffs assert that the court's decision is erroneous because: (1) defendant's appeal should have been dismissed because he is not the owner of the land and does not have standing to contest the action of the zoning board; and (2) the ordinance amendments are valid, and plaintiffs were entitled to an injunction under them.

There are actually two standing issues in this case, one in each of the combined cases. The first issue is whether defendant has standing to pursue an appeal from the zoning board to the superior court. Under 24 V.S.A. § 4471, an appeal may be taken only by an "interested person." This term is defined in 24 V.S.A. § 4464(b)(1) to include:

A person owning title to property affected by a bylaw who alleges that such regulation imposes on such property unreasonable or inappropriate restrictions of present or potential use under the particular circumstances of the case.

There is no other part of the definition that could apply to defendant's situation; if defendant does not fit within § 4464(b)(1), he lacks standing.

This Court construed § 4464(b)(1) in Mad River Valley Enterprises, Inc. v. Town of Warren Board of Adjustment, 146 Vt. 126, 499 A.2d 759 (1985). There, a developer sought zoning approval to construct a condominium hotel, but the evidence showed that the developer's interest in the property would be obtained in the future. This Court held that the developer's "shared interest" with the title-owners in the "common goal" of the development of the property was insufficient to confer standing under the wording of the statute. Id. at 129, 499 A.2d at 761. Defendant seeks to avoid the application of Mad River Valley Enterprises by arguing that the term "title" in the statute doesn't mean record title and the term "property" can include personal property, here the cars and the boat, as well as real property.

We cannot interpret the statute as broadly as defendant argues. As we emphasized recently, we must interpret a zoning statute in light of the whole statutory scheme, " 'the subject matter, its effects and consequences, and the reason and spirit of the law.' " Nash v. Warren Zoning Board of Adjustment, 153 Vt. 108, 112, 569 A.2d 447, 450 (1989) (quoting In re R.S. Audley, Inc., 151 Vt. 513, 517, 562 A.2d 1046, 1049 (1989)). Our objective is to give effect to the intent of the Legislature. In the context of the overall zoning statutes, the term "property" clearly refers to the real property that is regulated by zoning. See, e.g., 24 V.S.A. § 4401(b)(1) (zoning regulations relate to "land development"). While something less than record title to land may be sufficient to confer standing, defendant has failed to show that he has any title at all. ⁴ For the above reason, defendant lacked standing to appeal to the superior court, and his appeal should have been dismissed.

It is not clear, however, that the reversal of defendant's appeal to the superior court would have any impact on the trial court's order. As noted above, the trial court was dealing with two proceedings, and it denied plaintiffs relief because it found the zoning provision under which they were proceeding to be invalid. Presumably, that ruling would stand despite the dismissal of defendant's appeal. Thus, we must address whether a person in defendant's position can defend against a zoning enforcement action on the basis that the applicable zoning requirement is invalid.

To resolve this question, we can first treat defendant as if he were the record title owner of the property. Even in this posture, defendant must confront the appeal statute, 24 V.S.A. § 4472, and its exclusivity-of-remedy provision. The appeal statute provides, in relevant part:

[T]he exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter or with respect to any one or more of the provisions of any plan or bylaw shall be the appeal to the board of adjustment under section 4464 of this title, and the appeal to a superior court from an adverse decision upon such appeal under section 4471 of this title....

24 V.S.A. § 4472(a). The exclusivity-of-remedy provision, § 4472(d), adds:

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...