STATE OF VERMONT=

ENVIRONMENTAL COU= RT

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Appeal of Hardy = ; &= nbsp; &nb= sp; } = = Docket No. 157-9-= 04Vtec

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= Decision and Order on the Town’s Motion for Summary Judgment

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    =         Appellant John Cito Hardy appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Plainfield dated Ju= ly 6, 2004, upholding the Zoning Administrator’s decision to deny Appellant a zoning permit for an ad= dition to his existing garage. Appe= llant represents himself; the Town of Plainfield (Town) is represented by Paul= S. Gillies, Esq. This matter is= before the Court on the Town’s Motion for Summary Judgment.

<= b>Factual Background<= /b>

    =         The following facts are undisputed unless otherwise noted.
    =         1. Appellant owns two parcels of imp= roved land on both sides of Brook Road in the Town of Plainfield: an 8± acre parcel con= taining Appellant’s home lies on the westerly side of Brook Road, and a 2.2± acre parcel containing Appellant’s existing 26' x 50' garage lies on the easterly side of Brook Road.

    =         2. The garage on the easterly side o= f Brook Road was built in 1980 on what was= then a 65± acre parcel owned by Applicant’s father, John R. Hardy. This 65± acre parcel inclu= ded what would eventually become the Applicant’s two parcels, referenced above.

    =         3. Appellant originally received tit= le to 10.2± acres by Warranty Deed from Appellant’s parents, John R. Hardy and Kathleen M. Hardy to Appellant, in his sole name, on November 30, 1987.

    =         4. The two parcels first became held= in separate names when Appellant conveyed the 8-acre parcel on the westerly side of Brook Road to himself and his wife, Kath= leen G. Hardy, on August 2, 1988. The 2.2± acre parcel remai= ns in Appellant’s sole name, purportedly so that the garage parcel, used in connection with Appellant’s logging operation, may remain separate f= rom his family homestead.

    =         5. At Appellant’s request, the= Town’s Planning Commission determined on June 6, 1991 that both parcels were loca= ted in the Forest and Agricultural Lands zoning district. The Planning Commission’s d= etermination was not appealed.

    =         6. Appellant’s land has remain= ed in the same zoning district since before the Planning Commission’s 1991 decision. See Affidavit of S= arah Albert, Zoning Administrator (Town Attachment 5).

    =         7. In 1992, Appellant applied to the= zoning administrator for a zoning permit to construct a 26’ x 50’ add= ition to the existing garage on the 2.2± acre parcel. The Zoning Administrator issued t= he permit to Appellant.

8. The Planning Commission appealed = the Zoning Administrator’s 1992 issuance of the Appellant’s permit= to the ZBA. The ZBA held hearin= gs and ultimately reversed the Zoning Administrator’s decision, on the basis that the 2.2± acre lot did not conform to the zoning regulations, specifically because the minimum lot size in the Forest and Agricultural L= ands zoning district is five acres. Zoning Regulations § 4.3. The = ZBA decision was not appealed.

    =         9. On May 19, 2004= , Appellant again applied to t= he Zoning Administrator for a zoning permit to construct a 26' x 50' addition= to his existing garage. The Zoning Administrator denied Appellant’s application on May 28, 2004, citing the 1992 ZBA decision.

    =         10. Appellant appealed the Zoning Adm= inistrator’s denial to the ZBA. The ZBA u= pheld the Zoning Administrator’s decision to deny Appellant’s zoning permit application. On September 2, 2004, Appellant appealed from the ZBA decision to this Court.<= /p>
    =         11. The Town moved for summary judgme= nt on all issues raised in Appellant’s Statement of Questions. Appellant submitted a memorandum = in opposition to the Town’s motion.

= Discussion

One of the primary questions i= n this appeal, and one of the initial questions addressed by the Town’s Mot= ion, is identifying in what zoning district Appellant’s parcels are locat= ed. Appellant provided the Court with= a considerable amount of historical documentation on possible changes to Plainfield’s zoning districts, alt= hough it does not appear that Appellant disputes the Town’s assertion that= for all times material to Appellant’s applications for an amended zoning permit, his parcels were located in the Forest and Agricultural Lands= zoning district. See Affidavit of Sarah Albert, Plainfield Zoning Administrator (Town’s Attachment #5).

Confusion as to what zoning provisions control can sometimes arise, particularly when a property owner applies for a permit to add to a pre-existing structure. This appeal provides some real ex= amples of what can cause this confusion: the applicable zoning district may change between the time of the original per= mit and the application for amendment; the configuration of the parcel wh= ere the pre-existing buildings lie may change; or the size of the parcel may chan= ge, as a consequence of one or more transfers, including reducing the size of the parcel to below the minimum lot size for the current zoning district.=

To help minimize that confusio= n, we look to the application that is the subject of the pending appeal. From this starting point, we can determine what zoning provisions control the pending appeal, under the bas= ic premise that the zoning provisions that apply are those that are in effect “when a ‘proper’ [i.e. complete] application is filed.&#= 8221; In re Champlain Oil Company, 2004 VT 44, ¶11, citing Smith v. Winhall Planning Comm’n, 140= Vt. 178,181-182 (1981).

Appellant filed the applicatio= n now before this Court on May 19, 2004, requesting that he be permit= ted to construct a 26’ by 50’ addition to the existing garage on his 2.2± acre parcel. The= zoning regulations, including zoning districts, which control the appeal now befo= re this Court therefore must be the regulations in effect as of May 19, 2004. It appears undisputed that Appellant’s 2.2± acre parcel was within the Forest and Agricultural Lands= zoning district as of = May 19, 2004.

The Town also correctly points= out that a previous, unappealed decision of the Plainfield Planning Commission addressed the very issue of what zoning district applied to Appellant̵= 7;s garage parcel. Upon Appellan= t’s request, the Planning Commission determined on Ju= ne 6, 1991 that Appellant’s proper= ty was located in the Forest and Agricultural Lands zoning district. Appellant does not dispute that he= did not appeal the Planning Commission’s 1991 determination. Nor does Appellant dispute, as st= ated above, the Town's assertion that the zoning districts have not changed sin= ce before the Planning Commission’s 1991 decision. It therefore appears that the Pla= nning Commission’s 1991 determination should be afforded considerable weig= ht on this issue. In fact, the doc= trine of finality requires it.

    =         The legislature has made the doctrine of finality applicable to municipal deci= sions through 24 V.S.A. § 4472, which states that “the exclusive reme= dy of an interested person with respect to any decision . . . [from an appropria= te municipal panel] shall be the appeal to . . . the environmental court.” 24 V.S.A. &sec= t; 4472(a). Appeals from a muni= cipal decision must be taken within 30 days of that decision. Vt. Rules for Envtl. Ct. Proceedings 5(b)(1). In the absence of a timely appeal, interest= ed persons are bound by the decision of the municipal panel, and they "s= hall not thereafter contest, either directly or indirectly, such decision . . .= in any proceeding." 24 V.S.A. § 4472(d); = In re Ashline, 175 Vt. 203, 206 (2003).

Our Supreme Court has repeated= ly instructed that the exclusivity of remedy provision contained in 24 V.S.A. § 4472 be strictly construed.&n= bsp; See In re Appeal of Tekram Partners, et. al., 2005 VT 92, ¶8, citing City of S. Burlington v. Dep’t of Corr., 171 = Vt. 587, 588 (2000)(mem.); see also Town of Sandgate v. Colehamer, 156 Vt. 77, 84 (1990).&= nbsp; We have been advised that “the broad and unmistakable language of [the exclusivity of remedy] provision is designed to prevent any kind of [subsequent] collateral attack on a zoning decision that has not been prop= erly appealed through the mechanisms provided by the municipal planning and development statutes.” City of S. Burlington, supra, at 588-89.

Therefore, based on the exclus= ivity of remedy provision, the 1991 Planning Commission decision became final and cannot be assailed, except for the narrow exception provided for in 24&nbs= p;V.S.A. § 4472, relating to the facial unconstitutionality of a zoning regulation. See 24 V.S.A. &s= ect; 4472(b).

Appellant counters that the 19= 91 Planning Commission decision did not apprise him of his right to appeal that decisi= on, and cites Randolph v. White, 166 Vt. 280 (1990), for support of his arg= ument that this Court should ignore the 1991 decision. That case stands for the proposit= ion that in the context of a notice of zoning violation, due process requires = that the notice appraise the alleged violator of certain information. But the Randolph v. White = precedent does not broaden that narrow exception to the doctrine of finality found i= n 24 V.S.A. § 4472 for challenges to the constitutionality of a zoning regulation. See 24 V.S.A. &s= ect; 4472(b).

    =         In the present case, while the Court sympathizes with Appellant, due to the circumstances surrounding the historical use of his property, we nonethele= ss find his argument to be unavailing. Appellant does not challenge the constitutionality of any bylaw. Therefore, the exclusivity of rem= edy provision applies and Appellant is barred from revisiting the issue of whe= ther the 2.2± acre parcel is located in the Forest and Agricultural Lands zoning district. Thus, summa= ry judgment in favor of the Town on Appellant’s Question #2 is appropri= ate.

We now turn to the question of whether the zoning regulations applicable to Appellant’s 2.2±= acre garage parcel allow for Appellant’s proposed garage addition. The primary determination on this= issue, as Appellant correctly points out in his Question #1, is whether the 2.2± acre garage parcel may be regarded as a separate lot.

The Town argues that Appellant= ’s 2.2± acre garage parcel is a separate lot and therefore does not me= et the applicable 5 acre minimum lot size for this zoning district. The Town relies upon the <= st1:State>Vermont Supreme Court’s holding= in Wilcox v. Manchester ZBA, 159 Vt. 193 (1992), which established that a town highway serves as a natural subdivision.&= nbsp; Id. at 197. While the Town correctly states t= he import of Wilcox, we need not rely solely on its precedent in this appeal because Appellant, by his own actions, is responsible for the divis= ion of his property. =

On August 2, = 1988, Appellant subdivided[*] the 10.8± acres he originally received from his parents by conveying the 8-acre parcel on the westerly side of Brook Road to himself and his wife, ther= eby leaving the 2.2± acre parcel on the easterly side of Brook Road titled in his sole name. The ZBA made that very determinat= ion in its 1992 rejection of Appellant’s original application for a permit to a= dd on to his garage. The ZBA decis= ion was not appealed, and therefore became final.= The doctrine of finality discussed in more detail above is controll= ing here as well.

    =         Appellant’s Question 3 asks whether Appellant is able to sell the 2.2± acre par= cel separately. This question is not answerable in the context of the zoning a= ppeal presently before the Court. = In fact, this question appears to be outside the Court’s jurisdiction.<= span style=3D'mso-spacerun:yes'> Therefore, summary judgment in fa= vor of the Town on Question 3 is appropriate.

    =         Question 4 asks why the Town has not addressed “this issue” in over ten years. This question is not relevant to the zoning appeal presently before= the Court. It appears that this question is also not within this Court’s jurisdiction. Therefore, summary judgment in fa= vor of the Town is appropriate.

    =         Question 5 asks whether Appellant’s 2.2± acre parcel is non-conforming= because of its size. In light of the discussion above, it appears indisputable that the answer to this question= is “yes”. Further, = the ZBA addressed this issue previously in connection with Appellant’s 1992 zoning permit application. I= n fact, the ZBA’s determination that Appellant’s 2.2± acre parc= el was non-conforming was the specific ground upon which the ZBA reversed the Zoning Administrator’s issuance of a zoning permit. Again, the ZBA decision was not appealed, and therefore became final.&nbs= p; Appellant is barred from raising this issue in the present appeal.<= span style=3D'mso-spacerun:yes'> Therefore, summary judgment in fa= vor of the Town is appropriate on Question 5.

    =         Lastly, Appellant argues in his answer to the Town’s Motion for Summary Judg= ment that his 2.2± acre parcel should be granted a variance. However, an application for a var= iance is not presently before the Court. The Court therefore cannot address such an application in this appeal. Appellant may apply = for a variance, but that application must initially be made to the ZBA.

    =         Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= 217;s Motion for Summary Judgment is GR= ANTED as to all pending questions, thereby concluding this appeal. Nothing contained herein shall pr= eclude Appellant from submitting a subdivision or variance application to the appropriate Plainfield municipal panel.

Done at Berlin, Vermont, this 23^rd day of = August, 2005.

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   <= /span>Thomas S. Durkin, Environmental Judge