Vermont Division of State Bldgs. v. Town of Castleton Bd. of Adjustment

• Decision Date: 08 April 1980
• Docket Number: No. 122-79,122-79
• Citation: 138 Vt. 250,415 A.2d 188
• Parties: VERMONT DIVISION OF STATE BUILDINGS v. TOWN OF CASTLETON BOARD OF ADJUSTMENT; Robert McClure, Administrative Officer; C. William Mulholland; Victoria Mulholland; William L. Keach; Ruth F. Keach; Paul S. Huntley; Ellen Huntley; Irene Crossmon; Walter Crossmon and Florence Moriarty.
• Court: Vermont Supreme Court

Page 188

415 A.2d 188

138 Vt. 250

VERMONT DIVISION OF STATE BUILDINGS v. TOWN OF CASTLETON BOARD OF ADJUSTMENT; Robert McClure Administrative Officer; C. William Mulholland; Victoria Mulholland; William L. Keach; Ruth F. Keach; Paul S Huntley; Ellen Huntley; Irene Crossmon; Walter Crossmon and Florence Moriarty.

No. 122-79.

Supreme Court of Vermont.

April 8, 1980.

Davis, Rounds & Mayhew, P. C., Windsor, for plaintiff.

Corsones & Hansen, Rutland, for defendants.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and COOK, D. J., Specially Assigned.

BILLINGS, Justice.

This appeal arises as a result of the decision of the Town of Castleton Board of Adjustment on August 1, 1978, denying the appellee a zoning permit to convert and make additions to a former college dormitory for a model youth service program which would serve as an alternative to the now closed Weeks School. Disappointed with the decision, the appellee filed a complaint with the Rutland Superior Court. The judgment here appealed was rendered in that action on January 19, 1979.

The facility which the State intends to create in Castleton would provide housing and instructional areas for juvenile delinquents and serve as a screening and temporary detention center for other juveniles. It would be staffed by approximately ten persons. The administrative officer for Town zoning matters issued a permit for these purposes. The individual appellants, Mulholland, Keach, Huntley, Crossmon and Moriarty then appealed the officer's action to the Board of Adjustment as adjoining property owners and interested persons within the purview of 24 V.S.A. § 4464(b)(3).

The decision of the administrative officer granting the permit characterized the use as R20 residential, under which the side setback minimum is fifteen feet. The proposed side setbacks are twenty-seven and thirty-eight feet. The permit was revoked by the Board on the ground that the use is nonresidential and that the appropriate side yard minimum requirements for the use were not met.

The appellee here then appealed this decision to the superior court alleging that the proposed use is residential and hence that the side yard requirements imposed by the Town had been met. In addition, the appellee contended in its complaint that it was exempt from compliance with local zoning and that it would suffer irreparable injury if the project were to be thwarted by the local zoning officials. The complaint was termed a notice of appeal and asked reversal of the Board's decision as well as declaratory and injunctive relief.

The court ordered the Board of Adjustment to issue a zoning permit on conditions substantially similar to those of the administrative officer's permit. It further ordered all the defendants to refrain from interfering with the appellee's project and declared that the appellee is subject to the Castleton Zoning Ordinance § 504.

The first question presented is whether the appellee properly perfected its appeal to the superior court, inasmuch as it did not file with the Board of Adjustment any notice of its appeal other than its complaint. If the complaint as served in this case meets the requirements of 24 V.S.A. §§ 4471-4472, then the appeal was properly perfected below.

The exclusive remedy of an interested person with respect to a decision of the board of adjustment not challenged on constitutional grounds is an appeal to the superior court. 24 V.S.A. §§ 4471-4472(a); Fisher v. Town of Marlboro, 132 Vt. 533, 534, 323 A.2d 577, 578 (1974). This appeal must be perfected pursuant to the terms of V.R.C.P. 74. In re Rhodes, 131 Vt. 308, 309, 305 A.2d 591, 592 (1973). This rule requires the appellant to file with the clerk of the agency a notice of appeal in the manner and within the time provided by V.R.A.P. 3 and 4.

V.R.A.P. 3(b) requires the appellant to take its appeal "by filing a notice of appeal with the clerk . . . within the time allowed by Rule 4," which is 30 days from the entry of the judgment below. In the case at bar, the secretary of the Board was served with the superior court complaint within the 30 day period. This service is a proper filing procedure, and it was accomplished within the requisite time.

The appellee contends that because the superior court action was purportedly begun by filing in the superior court, this service was not determinative of the validity of the appeal. "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal." V.R.A.P. 3(b). Even though an appellant may attempt to invoke the jurisdiction of the superior court by an erroneous procedure, the timely filing of a notice with the board of adjustment gives the appeal validity. Cf. In re Pfeiffer, 136 Vt. 52, 53, 383 A.2d 633 (1978) (Although appellant timely filed pursuant to V.R.C.P. 75, the notice was sufficient to have invoked V.R.C.P. 74 jurisdiction and, therefore, the appellant's motion to amend should have been granted). The jurisdiction of the superior court over the appeal was invoked upon service of the complaint on the secretary of the Board of Adjustment.

Harvey v. Town of Waitsfield, 137 Vt. 80, 401 A.2d 900 (1979) is not to the contrary. In Harvey although the action commenced in superior court purported to be notice of appeal as well as an action for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983, it does not appear that service was made on the clerk of the board of adjustment within the required appeal period. Thus, to the extent that Harvey states "that an entire failure to file a notice of appeal must . . . foreclose . . . review," it precludes appeal where the service of a complaint denominated as a notice of appeal is not timely served on the clerk of the board of adjustment. Id. at 82, 401 A.2d 900. Harvey also precludes jurisdiction in the superior court over actions for declaratory and injunctive relief based on nonconstitutional grounds where a notice of appeal is not timely filed with the clerk of the board of adjustment. Id. See also, Shortle v. Board of Zoning Adjustment, 136 Vt. 202, 203, 388 A.2d 430, 431 (1978). The superior court is without jurisdiction to hear such actions. 24 V.S.A. § 4472(d); Fisher v. Town of Marlboro, 131 Vt. 534, 535, 310 A.2d 119 (1973).

Harvey also does not turn upon the fact that the notice of appeal was denominated as a complaint. This Court continues to require as a minimum that the notice of appeal inform the parties and the tribunals concerned that the proceedings are not concluded so they may respond accordingly. Elliott v. Department of Employment Security, 137 Vt. 536, 538, 409 A.2d 563, 565 (1979); Badger v. Rice, 124 Vt. 82, 84, 196 A.2d 503, 505 (1963). This minimum requirement was not addressed in Harvey. In the case at bar, however, the issue was raised, and the minimum requirement met in the complaint served on the Board of Adjustment.

Similarly, the fact that the appellant failed to furnish the secretary of the Board of Adjustment sufficient copies of the notice to enable the clerk to serve all persons pursuant to V.R.C.P. 74(a) and V.R.A.P. 3(e), as required by V.R.A.P. 3(d), is not fatal to the validity of the appeal. V.R.A.P. 3(b). It is grounds for corrective action in the superior court.

The next issue is whether the superior court may grant declaratory and injunctive relief in a properly commenced appeal. Although jurisdiction will not attach unless a proper appeal is commenced, this Court has affirmed a judgment order granting injunctive relief in which an action denominated as an appeal and a petition for injunctive relief, filed with the board of adjustment and the superior court respectively, were consolidated for disposition below. Kalakowski v. John A. Russell Corp., 137 Vt. 219, 401 A.2d 906 (1979). Thus, it is apparent that if an appeal is properly commenced, the superior court can grant declaratory and injunctive relief in conjunction with its de novo hearing.

In recognizing that injunctive and declaratory relief is available to a party which has properly commenced an appeal to the superior court, this Court continues to interpret the phrase "exclusive remedy" as it is used in 24 V.S.A. § 4472(a) to be a jurisdictional limitation, In re Rhodes, supra, and not a limitation on the remedies available in superior court after proper commencement of appeal. In addition, this interpretation is consistent, by negative inference, with § 4472(d). If an appeal is properly taken from the decision of the board of adjustment, the appellant may contest either directly or indirectly the board's decision through any action otherwise available. We hold that since the board of adjustment has been timely served with a complaint meeting the content requirements of V.R.A.P. 3(d), the jurisdiction of the superior court attached to the appeal and the court may grant such relief as is otherwise within its jurisdiction and consistent with law and equity.

The clerk of the court below acting on the complaint ex parte issued an order to show cause which was served with the complaint upon the Board of Adjustment. Until service of the complaint was made on the Board, the filing required by 24 V.S.A. § 4471, V. R.C.P. 74, and V. R.A.P. 3-4 had not occurred. An order to show cause can issue only after the commencement of the action, which is accomplished in zoning appeals only by filing with the board of adjustment. The issuance of the order was error, because prior to service of the...