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STATE OF VERMONT

ENVIRONMENTAL COURT

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Appeal of Postma<= span style=3D'mso-tab-count:4'>        =             &n= bsp;           &nbs= p;          }        =             &n= bsp;  Docket No. 235-12-04 Vtec

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Decision and Order on the

City’s Motion for Summary Judgment

 

Appellants James and Barbara Postma appealed from a decision of the Development Revie= w Board of the City of Burlington (DRB), dated November 22, 2004, denying a request to delete a specific condition fro= m a previously approved permit for the construction of a single family dwellin= g.  Appellants represent themselves; = the City of Burlington (City) is repres= ented by Kimberlee J. Sturtevant.  = The City has moved for summary judgment.

The following facts are undisputed:

1.&= nbsp;     Appellants are the owners of property at 147 Appletree Point Road in the City of Burlington. 

2.&= nbsp;     The property lies within the City’s Waterfro= nt Residential-Low Density zoning district. 

3.&= nbsp;     On J= une 3, 2003, Appellants obtained a Zoning Permit, a Certificate of Appropriateness, and= a Conditional Use Approval for the construction of a new single family dwelling on their property. 

4.&= nbsp;     The = June 3, 2003 Permit, Certificate and Use Approval each included a cond= ition that required the payment of an impact fee seven days before the Applicant could obtain a Certificate of Occupancy.[1] 

5.&= nbsp;     The Applicant chose not to appeal the 2003 Permit,= Certificate or Use Approval.

6.&= nbsp;     On = November 2, 2004, Appellants applied to “amend [their] application to delete [the] condition of approval” imposing the impact fee.  See Exhibit C attached to the Town’s Motion for Summary Judgment.

7.&= nbsp;     Appellants specifically requested that the conditi= on to pay the impact fee be removed from the 2003 Permit, Certificate and Use Ap= proval. 


8.&= nbsp;     The DRB denied Appellants’ 2004 application = on finality grounds. 

9.&= nbsp;     Appellants timely appealed from that 2004 DRB deci= sion to this Court.  Appellants th= en filed a Statement of Questions, all of which reference the 2003 impact fee condi= tion.

The City filed a Motion for Summary Judgment, with = Exhibits and a signed Affidavit from the City’s Zoning Administrator.  The City argues on summary judgme= nt that Appellants’ appeal is barred by the doctrine of finality as provided= for in 24 V.S.A. §4472(a).  = The Appellants did not file any opposition to the City’s Motion.

The legislature has made the doctrine of finality applic= able to zoning disputes through 24 V.S.A. § 4472, which states that “= ;the exclusive remedy of an interested person with respect to any decision or a= ct taken, or any failure to act, . . . [by the DRB] shall be t= he appeal to . . . the environmental court.”  24 V.S.A. § 4472(a).  Appeals from a DRB decision must = be taken within 30 days of that decision.&nb= sp; Vermont Rules of Civil Procedure 76(e).[2]  In the absence of a timely appe= al, interested persons are bound by decisions of the DRB, and they "shall= not thereafter contest, either directly or indirectly, such decision or act ..= . in any proceeding."  24 V.S.A. §4472(d); In re = Ashline, 175 Vt. 203, 206 (2003). 

The Supreme Court has instructed that the exclusivity of remedy provision be strictly construed, Town of Sandgate v. Colehamer, 156 Vt. 77, 84 (1990), and that “the broad and unmistakable langu= age of [the exclusivity of remedy] provision is designed to prevent any kind of collateral attack = on a zoning decision that has not been properly appealed through the mechanisms provided by the municipal planning and development statutes.”  City of South Burlington v. Dep’t of Corr.= , 171 <= /span>Vt. 587, 5= 88-89 (2000).

In the present case, the DRB, Zoning Administrator, and Planning Director issued decisions approving Appellants’ application= on June 3, 2003.  It is undisputed that Appellants = did not timely appeal the issuance of these approvals, or their conditions.  As such, those approvals, and the= ir conditions, became final.  Therefore, Appellants were bound by those approvals, including the impact fee conditions, and cannot now contest them.

Based on the foregoing, it is hereby ORDERED and ADJUDGED<= /b> that the City’s Motion for Summary Judgment is GRANTED, thereby concluding this appeal.

 

Done at Berlin, Vermont<= /st1:place>, this 14th day of July, 2005.

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Thomas S. Durkin, Environ= mental Judge

 

 

 

Date ______________ c= opies sent to:     &nbs= p;            =             &n= bsp;           &nbs= p;            =             &n= bsp;           &nbs= p;    Clerk’s initials: ________

 

James & Barbara P= ostma

Attorney Sturtevant

 


[2] At = the time Appellants’ application was approved, the time limit for appeals from municipal zoning boards to the Environmental Court was controlled by V.R.C.P. 76(e).  Currently, the time limit for app= eals to the Environmental Court from municipal zoning boards, which remains 30 days, is now found at Vermo= nt Rules for Environmental Court Proceedings 5(b).