Wright v. Preseault

• Decision Date: 05 June 1973
• Docket Number: No. 96-72,96-72
• Citation: 131 Vt. 403,306 A.2d 673
• Court: Vermont Supreme Court
• Parties: Richard H. WRIGHT et al. v. J. Paul PRESEAULT.

Page 673

306 A.2d 673

131 Vt. 403

Richard H. WRIGHT et al. v. J. Paul PRESEAULT.

No. 96-72.

Supreme Court of Vermont.

June 5, 1973.

Motion for Reargument Denied July 11, 1973.

Paul, Frank & Collins, Burlington, for plaintiffs.

Stephen R. Crampton, of Gravel & Shea, Burlington, for defendant.

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

KEYSER, Justice.

This is an equitable proceeding to enjoin the building of two-family houses (duplexes) by the defendant on a parcel of land owned by him on North Avenue in the City of Burlington. All of the plaintiffs own and reside on property adjoining that of the defendant and thus are 'interested persons' under 24 V.S.A. § 4464(b)(1)-(5). The defendant filed a motion for judgment on the pleadings for lack of jurisdiction of the court of the subject matter. The court granted the motion and dismissed the petition. From this action the plaintiffs appealed.

The defendant submitted his proposed development of thirty-eight duplex family houses to the City of Burlington Planning Commission for approval. After due notice and hearings, the Planning Comission granted approval to the proposed development and effectuated a contractual agreement between the City and the defendant and his wife dated March 22, 1971. The plaintiffs did not appear at the hearing by the Commission, but on April 19, 1971, subsequent to the time that the hearings had been completed, they requested that the hearings be reopened. The Commission denied the request and so notified the plaintiffs. The plaintiffs did not appeal from this decision or from the Commission's action approving the defendant's proposed development.

Subsequent to the approval by the Planning Commission, the defendant on April 30, 1971, was issued a building certificate of permit by the building inspector of the City of Burlington for the construction of four and one-half duplexes. The plaintiffs had no personal notice of the issuance of this building permit and did not learn of its issuance until sometime in June. As a consequence of this, on June 21, 1971, the plaintiffs brought their petition for a declaratory judgment and permanent injunction to restrain the erection of any buildings under the permit.

The plaintiffs challenge the building permit as being invalid for lack of notice of its issuance by the building inspector. Thus, they seek equitable relief against his action because, not having knowledge or notice, they failed to appeal within the period specified by 24 V.S.A. § 4464(a). The material part of that statute at the time the permit was issued, entitled 'Appeals', reads as follows:

'At any time, any interested person may appeal any decision or act taken, or any failure to act, under this chapter, in any municipality by filing a notice of appeal with the secretary of the board of adjustment of that municipality or with the clerk of that municipality if no such secretary has been elected. If the appeal is taken with respect to a decision or act of an administrative officer, (in Burlington's case, the building inspector) such notice or appeal must be filed within 30 days of the date of such decision or act, and a copy of the notice of appeal shall be filed with such officer.'

Title 24 V.S.A. § 4472, captioned 'Exclusivity of remedy; finality', provides:

'(a) The exclusive remedy of any interested person with respect to any decision or act taken, or any failure to act, under this chapter (91) or with respect to any one or more of the provisions of any plan or by-laws, shall be the appeal to the board of adjustment under section 4464 of this title. . . .

(b) Upon the failure of any interested person to appeal to a board of adjustment under section 4464 of this title, . . . all interested persons affected shall be bound by such decision or act of such officer, such provisions, or such decisions of the board, as the case may be, and shall not thereafter contest, either directly or indirectly, such decision or act, such provision, or such decision of the board in any proceeding, including, wihtout limitation, any proceeding brought to enforce this chapter.'

The fact that a building permit had been issued became a part of the public record of the city. 24 V.S.A. § 3105. At the time in question there was no provision embodied in chapter 91 of 24 V.S.A. which required that notice be given to 'interested persons' either of the filing of an application for or the issuance of a building permit by the administrative officer of a town or city. However, by amendment enacted at the 1972 session of legislature, the officer is now required to give notice of the issuance of a building permit by posting a copy in at least one public place in the municipality. 24 V.S.A. § 4443(b) (2), effective April 11, 1972.

The plaintiffs rely on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), which defines due process in regard to notice of a legal proceeding. The case simply holds that a fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

The Mullane case was a proceeding concerning judicial settlement of the defendant's trust accounts as a special guardian in which notice to the beneficiaries was given only by newspaper publication. This is not the factual situation in the case at bar.

The duties of the building inspector are set forth in 24 V.S.A. chapter 69. He is charged with the duties of determining whether or not buildings and structures presently existing or under construction are unsafe and constitute a hazard to the public safety. See Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499 (1965). In order to carry out these duties, the building inspector, along with other administrative and judicial remedies, has the discretionary power not to grant a certificate of permission allowing for the construction or alteration of a building until he is satisfied 'that such structure when completed will be properly built, and insofar as practicable of a fireproof construction.' 24 V.S.A. § 3105.

However, 24 V.S.A. § 3105 also has a further condition upon which the granting of a certificate of permission by the building inspector is made contingent, namely:

'(I)n those municipalities that have adopted the provisions of chapter 67 of this title, relating to municipal zoning, the building inspector, before issuing said building certificate, shall be satisfied that by issuance of such certificate the zoning ordinance of said municipality will not be violated.'

Effective March 23, 1968, the legislature repealed §§ 3001-3027 of 24 V.S.A. chapter 67, and enacted 24 V.S.A. chapter 91, entitled 'Municipal and Regional Planning and Development', which allowed all zoning ordinances enacted under chapter 67 to remain in effect (24 V.S.A. § 4491). No. 334 of the Public Acts of 1967.

The defendant alleged in his second affirmative defense, which was not contested by the plaintiffs, that the planning commission chose to treat his development as a subdivision by reason of the multiple use of one lot rather than by reason of multiple lots. As such, the defendant was required to submit a plat, or cartographic representation, of the subdivision to the planning commission for its approval. 24 V.S.A. §§ 4401(b)(2) and 4411.

No land development may be undertaken or effected within a municipality except in conformance with the zoning by-laws authorized under 24 V.S.A. chapter 91. 24 V.S.A. § 4441. Before the defendant's plat could be approved by the planning commission, public hearings had to be held after public notice. 24 V.S.A. § 4412. The exclusive remedy of an 'interested person' aggrieved by the decision of the planning commission is by an appeal to the board of adjustment, and the failure to do so shall bind that person by the decision of the planning commission. 24 V.S.A. § 4472.

It must be presumed, absent a showing to the contrary, that the planning commission in approving the defendant's plat, was acting in accordance with its authority. See Hoosier Engineering Co. v. Commissioner of Taxes,124 Vt. 341, 343, 205 A.2d 821 (1964); Troy v. American Fidelity Co., 120 Vt. 410, 421, 143 A.2d 469 (1958). As such we cannot say that the planning commission approved a plat not in accordance with the zoning ordinance in effect in the City of Burlington in violation of 24 V.S.A. § 4441.

The plaintiffs complain that the development to be undertaken by the defendant will violate the zoning ordinance of the City of Burlington, but they failed to appeal the decision of the planning commission allowing such development to the board of adjustment under 24 V.S.A. § 4472. The plaintiffs now seek to enjoin such development by attempting to prevent the defendant from proceeding under the permit issued by the building inspector approving the construction of the development by raising the issue that under 24 V.S.A. § 3105 such construction will violate the zoning ordinance of the City of Burlington.

They complain that before such certificate was issued, they should have had notice to allow them to contest such issuance. But the specific wrong upon which they base their right to relief is that the defendant will violate the zoning ordinance of the City of Burlington. On that issue, the plaintiffs have already had notice as provided for under 24 V.S.A. § 4412. They have had an opportunity to be heard before the planning commission upon whose shoulders rests the statutory duty to determine whether or not a development violates a municipal zoning ordinance.

When they were aggrieved by the planning commission's decision, they failed to use the statutory avenue to appeal provided them under 24 V.S.A. § 4472. The plaintiffs argue that they should have been given notice of the issuance...