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In re Appeal of Jolley Associates (2005-196)
2006 VT 132
[Filed 15-Dec-2006]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2006 VT 132
No. 2005-196
In re Appeal of Jolley Associates Supreme Court
On Appeal from
Environmental Court
December Term, 2005
Merideth Wright, J.
Joseph S. McLean of Stitzel, Page & Fletcher, P.C., Burlington, for
Appellant.
Howard J. Seaver of Greene, Seaver & Carver, P.C., Burlington, for
Appellee.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. BURGESS, J. The Town of Shelburne appeals an Environmental
Court ruling on summary judgment that allows Jolley Associates ("Jolley")
to proceed with its application for a proposed gas station and convenience
store on Route 7 in Shelburne. The Town argues that the court exceeded its
jurisdiction and that further consideration of Jolley's proposed
development should be precluded because its conditional use application was
already once denied on the merits. We affirm.
2. This is the second appeal arising from Jolley's application
for this project. Jolley submitted its conditional use application five
days before the effective date of a 1997 amendment to the Town's zoning
scheme that excluded gas stations from the residential-commercial district
at issue. The filing included a site plan but no formal site plan
application. The Environmental Court ruled that the conditional use
application, filed after enactment of the amendment but before its
effective date, should be reviewed under the terms of the new regulation
rather than the old. We reversed, holding that a permit applicant enjoyed
a vested right to review under the rules still in effect at the time of
application, provided that the application is "validly brought and pursued
in good faith." In re Handy, 171 Vt. 336, 351, 764 A.2d 1226, 1239 (2000)
(internal quotations omitted). The case was remanded to the Town's Zoning
Board of Adjustment (ZBA) for consideration of Jolley's application under
the doctrine of vested rights, subject to review by the Environmental
Court. Id. at 351.
3. On remand, the ZBA determined that Jolley had no vested right
to review of its application under the 1995 bylaws that would have allowed
the proposed use. (FN1) Jolley again appealed to the Environmental Court.
The Environmental Court bifurcated the proceedings to first consider the
vested rights question and then to proceed, if necessary, with an
evidentiary hearing on the merits of the application. In a March 7, 2002
decision, the court concluded that Jolley's application was "validly
brought and pursued in good faith" such that Jolley was entitled to have
its application considered on the merits under the older version of the
bylaws. Following a subsequent merits hearing, the Environmental Court
issued an order on May 3, 2002, denying the conditional use permit on two
grounds: (1) the proposal improperly included two principal structures-a
building and separate canopy over the gas pumps-in violation of the Town's
1995 zoning bylaws, and (2) Jolley failed to show that the proposal would
not adversely affect all site plan bylaws then in effect-a requirement of
conditional use approval-including bylaws regarding site plan standards for
on-site circulation, landscaping and screening, and anticipated glare. The
court further stated:
This appeal is concluded and hereby closed on the docket, without
prejudice to its being reopened upon motion filed within 45 days
after any further decisions have issued from the Planning
Commission and/or the ZBA on any further applications filed by
this applicant for this project; in particular any application . .
. for site plan approval and any application to the ZBA under
210.6. (FN2)
PC 31-32. (Emphasis added.) Neither party appealed this decision.
4. In June 2003, Jolley submitted a site plan application to the
Town zoning administrator. The zoning administrator denied the application
on the grounds that the site plan included a gas station, a use no longer
allowed under the new zoning rules. Jolley appealed to the ZBA, which
agreed that Jolley had no vested right to site plan review under the old
bylaws and upheld the zoning administrator's decision. Jolley appealed to
the Environmental Court.
5. The Environmental Court concluded that because Jolley had a
vested right to its proposed conditional use, it also had a right to site
plan review of the proposal. However, unlike conditional use, the site
plan application would not be reviewed under the old bylaws because Jolley
had not filed a site plan application before the bylaws were amended. The
court ordered that the site plan application be forwarded to the Planning
Commission with instructions to review the site plan under the applicable
2003 site plan bylaws. Implicit in this holding was the court's acceptance
that Jolley retained a vested right to seek approval of the proposed use
even after its initial conditional use application had been denied. The
court attempted to clarify its earlier denial "without prejudice,"
explaining that the denial of Jolley's conditional use application at that
time "was specifically without prejudice to [Jolley]'s submittal of its
application for site plan approval to the Planning Commission." Thus,
although the Town prevailed in the dispute over whether the old bylaws or
new bylaws would govern site plan review (the Environmental Court ruled
that the new rules applied), the Town appeals the court's order that the
site plan application be considered at all.
6. The Town claims on appeal that the Environmental Court erred
by: (1) exceeding its jurisdiction in reaching issues beyond Jolley's
statement of questions, and (2) ordering Jolley's site plan application to
proceed despite the court's earlier denial of Jolley's conditional use
application on the merits. We affirm, concluding that the court did not
exceed its jurisdiction and that the court's denial of Jolley's conditional
use application did not extinguish its vested right to application of the
earlier conditional use bylaws.
7. We review a grant of summary judgment by applying the same
standard as the trial court and will affirm if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter
of law. In re Curtis, 2006 VT 9, 2, __Vt. __, 896 A.2d 742 (mem.). The
court's interpretation of zoning ordinances is reviewed for clear error.
Id. Conclusions of law are reviewed de novo. In re Beckstrom, 2004 VT 32,
9, 176 Vt. 622, 852 A.2d 561 (mem.).
I.
8. We first consider whether the Environmental Court exceeded
its jurisdiction by addressing matters beyond the literal language of
Jolley's stated questions: (1) "Should Jolley's site plan be reviewed under
the 1995 Bylaws?" and (2) "Does the decision appealed from represent a
violation of [the Environmental Court's order] dated May 3, 2002?" The
Town argues that the Environmental Court should have ended its discussion
regarding Jolley's site plan application once it determined that the 2003
site plan bylaws were the applicable standard for review. According to the
Town, the court improperly reached the question of whether the zoning
administrator erred by declining to forward the application to the planning
commission when that question was not before the court. We disagree.
9. As a general rule, "the [E]nvironmental [C]ourt is confined to
the issues raised in the statement of questions filed pursuant to an
original notice of appeal." In re Garen, 174 Vt. 151, 156, 807 A.2d 448,
451 (2002); see also V.R.E.C.P. 5(f) ("appellant may not raise any question
on the appeal not presented in the statement [of questions]"). The Town's
reliance on Garen as a limit to the Environmental Court's jurisdiction in
this matter is misplaced. Garen addressed, inter alia, whether intervenors
are prohibited from filing their own statement of issues on appeal. We
concluded that, because Vermont Rule of Civil Procedure 76(e)(4)(B)
expressly limited the filing of the statement of questions to the
appellant, intervenors are permitted only to argue issues raised by a
principal party. Id. (FN3) The issue here is distinguishable because the
Environmental Court did not reach distinct issues beyond Jolley's statement
of questions, but rather addressed matters intrinsic to Jolley's question
of whether its site plan should be reviewed under the 1995 bylaws. The
literal phrasing of the question cannot practically be considered in
isolation from the zoning adminstrator's action that prompted the appeal.
Because the zoning administrator declined to forward the application to the
planning commission for review on the basis that Jolley had no vested right
to site plan application review, the question presented necessarily
encompassed the underlying question of whether Jolley had a such a right.
See In re Hignite, 2003 VT 111, 9, 176 Vt. 562, 844 A.2d 735 (mem.)
(construing statement of questions liberally in favor of party exercising
appeal rights). We therefore conclude that the court did not exceed its
jurisdiction by considering whether Jolley's vested right to conditional
use included a right to site plan review in answering the question of
whether Jolley's site plan should be reviewed under the old or new bylaws.
II.
10. We turn to the remaining issue of whether the 2002 denial of
Jolley's conditional use application on the merits extinguished its vested
right to application of the earlier conditional use bylaws. The Town
argues that the Environmental Court's denial of the application "without
prejudice" was improper and that under the successive application doctrine
Jolley lost its vested right when its application was denied.
11. Zoning rights generally vest at the time of application.
Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761
(1981). We adopted the Smith rule to avoid numerous and protracted
litigations because, at any given time, permits are in varying stages. See
Smith, 140 Vt. at 182, 436 A.2d at 761 (citing avoidance of "extended
litigation" and "protracted maneuvering" as reasons for adopting the
minority rule). We noted in Smith that this was "the more equitable rule
in long run application, especially where no amendment [was] pending at the
time of the application." Id. We have cautioned, however, that a
developer must submit a "proper application" before acquiring a vested
right. In re Ross, 151 Vt. 54, 57, 557 A.2d 490, 492 (1989). There is no
dispute that Jolley acquired a vested right to consideration of its
proposed use by filing its February 6, 1997 conditional use application.
This case requires us to decide whether Jolley continued to retain this
vested right after the conditional use application was denied on the merits
but "without prejudice" to Jolley's ability to submit further applications
for the project.
12. Though "res judicata does not apply to administrative
proceedings as an inflexible rule of law, the principles of res judicata
and collateral estoppel generally apply in zoning cases as in other areas
of the law." In re Carrier, 155 Vt. 152, 157-58, 582 A.2d 110, 113 (1990)
(citation omitted). The general rule, then, is that "a zoning board or
planning commission may not entertain a second application concerning the
same property after a previous application has been denied, unless a
substantial change of conditions had occurred or other considerations
materially affecting the merits of the request have intervened between the
first and second application." Id. at 158, 582 A.2d at 113 (internal
quotations omitted). One change in conditions sufficient to allow for
consideration of a successive application is "when the application has been
substantially changed so as to respond to objections raised in the original
application or when the applicant is willing to comply with conditions the
commission or court is empowered to impose." Id. We recently considered
the significance of the Environmental Court's "denial without prejudice" of
a zoning application, and concluded that the phrase is no more than an
expression of the successive application doctrine and confers no greater
right to reapply than is allowed by that doctrine. In re Armitage, 2006 VT
113, 6, __ Vt. __, __ A.2d __.
13. Jolley argues that the Environmental Court did not outright
deny its application, but withheld approval pending consideration by the
town planning commission of its site plan application, in something
analogous to a remand. We held in In re Maple Tree Place that a trial
court was within its discretion to close its proceedings and allow the
matter to be heard by the proper municipal body before making a final
judgment. 156 Vt. 494, 498-99, 594 A.2d 404, 406 (1991). The use of
remand in zoning cases is now provided for by the recently adopted Rules
for Environmental Court Proceedings. See V.R.E.C.P. (5)(i) (providing for
remand for reconsideration at any time before judgment). Remand is
appropriate to return the matter to the Town for further consideration if
the proposed use or site plan, or both, were incomplete, inadequate or
subject to a different approach, or if it appeared that the project was
denied due to an erroneous evaluation. See Maple Tree Place, 156 Vt. at
499, 594 A.2d at 406-07 (citing examples appropriate for remand).
14. We agree with Jolley that, with respect to compliance with
site plan bylaws, the Environmental Court's 2002 holding was in essence, if
not technically, a remand. First, the Town's bylaws allowed for the filing
of a conditional use application prior to the filing of a site plan
application. It would be incongruous to require that the applicant fully
litigate its site plan application before it has filed the application.
Second, the court anticipated that Jolley would submit a site plan
application to the ZBA when it stated that its decision was "without
prejudice to [Jolley's] submittal of its application for site plan approval
to the Planning Commission." By this statement, the court indicated that
it did not intend to finally resolve the issue of site plan compliance.
The court stated only that there was insufficient evidence at the present
time to "make the positive finding that the application will not adversely
affect" the site plan bylaws. We thus conclude that the issue of site
plan compliance was not finally determined by the May 2002 decision.
15. We do not similarly view the court's opinion concerning the
proposed canopy as a withholding of final judgment. The question of the
canopy's compliance was simply a legal determination of whether the canopy
was a "principal structure." The court concluded that it was but denied
the application "without prejudice to [Jolley's] proceeding with the
project without the canopy." The court went on to state that Jolley "may
choose whether to proceed with the project with gasoline service and its
attendant lighting and fire suppression systems contained in a smaller
housing over each pump island." Alternatively, the court could have
granted approval of the application conditioned on removal of the canopy.
See 24 V.S.A. 4464(b)(2) ("In rendering a decision in favor of the
applicant, the panel may attach additional reasonable conditions and
safeguards as it deems necessary . . . ."); In re Miller, 170 Vt. 64, 73,
742 A.2d 1219, 1226 (1999) ("Functioning as the zoning board on appeal, the
court has broad discretion in fashioning permit conditions in connection
with conditional use approval."). In this case the court did not grant
conditioned approval, perhaps because of the alternative bases for denying
the application and its apparent belief that a denial without prejudice
could accomplish the same ends. While we do not conclude that the denial
of an application preserves any right to reapply beyond that permitted by
the successive application doctrine, Armitage, 2006 VT 113, 6, we
nevertheless conclude that Jolley retains a vested right to refile a
conditional use application under the old bylaws.
16. Ordinarily, denial of a zoning application requires that the
applicant file a new application that substantially revises its proposal to
"address[] all concerns that prevented approval of the prior application."
Armitage, 2006 VT 113, 4. The newly filed application is then subject
to the bylaws in effect at the time of its filing. Smith, 140 Vt. at
181-82, 436 A.2d at 761. In Ross, we held that the filing of an incomplete
Act 250 application, later denied, left the applicants with no vested
right. 151 Vt. at 57, 557 A.2d at 492. In so holding, we stated our
concern that landowners not be able to "easily avoid regulatory
requirements by submitting a request for a permit based on partial and
insufficient information." Id. at 59, 557 A.2d at 492-93. Here, by
contrast, the application was completed and our concern for easy avoidance
is lessened. Further, the identified concern that required
revision-removal of the canopy-was spelled out by the court; a
reapplication would not require the sort of substantial revision that
should dictate a loss of vested rights. Finally, Jolley could have
reasonably relied on the court's representation that the denial would not
prevent it from reapplying without the canopy when it did not appeal that
decision. For these reasons we decline to find that the 2002 denial
extinguished Jolley's vested right.
17. Having concluded that Jolley retained a vested right to refile
a conditional use application under the old bylaws, we also conclude, and
the Town does not dispute on appeal, that Jolley's vested right to
conditional use includes a right to site plan review under the bylaws in
effect at the time the site plan application was filed. Therefore, the
Environmental Court's order that the site plan application be reviewed by
the planning commission was not in error.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Jolley provided the full opinion of the ZBA in its Supplemental Printed
Case. The Town moved to strike the ZBA's opinion along with a letter from
the zoning administrator also included in the Supplemental Printed Case.
Because we need not consider either document to reach our decision, the
Town's motion to strike is denied as moot.
FN2. Section 210.6 provides the ZBA authority to extend boundary lines in
the residential-commercial district by conditional use permit.
FN3. Rule 76(e)(4)(B), now repealed, has been carried forward in substantial
part in the 2005 adoption of the Vermont Rules of Environmental Court
Proceedings. See V.R.E.C.P. 5(f). |