In re Appeal of Smith

2006 VT 33, 898 A.2d 1251, 179 Vt. 636, 2006 Vt. LEXIS 89
CourtSupreme Court of Vermont
DecidedApril 24, 2006
DocketNo. 05-062
StatusPublished
Cited by13 cases

This text of 2006 VT 33 (In re Appeal of Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal of Smith, 2006 VT 33, 898 A.2d 1251, 179 Vt. 636, 2006 Vt. LEXIS 89 (Vt. 2006).

Opinion

¶ 1. The Chittenden County Fish and Game Club (“Club”) appeals the Environmental Court’s decision that neighboring property owners (“landowners”) may challenge an increase in the frequency of the Club’s nonconforming use under the Town of Richmond Zoning Regulations. The Club asserts that landowners’ opportunity to challenge any expansion in use is foreclosed by them failure to timely appeal the town zoning administrator’s approval of the Club’s permit application for previous construction. We affirm.

¶ 2. The undisputed facts can be briefly summarized. The Club has been in existence for more than seventy years, operating shooting ranges, fishing ponds, hiking trails, and campsites. When the town adopted zoning in 1969, the area including the Club’s location was designated an agricultural/residential zoning district, and the Club’s use of the land became a nonconforming use because private clubs were not allowed in the district and outdoor recreational facilities were allowed only if approved by the Richmond Development Review Board (DRB). Since 1969, the Club made a number of physical improvements to the property without seeking a zoning permit. In May of 2002, the Club submitted a permit application to the town zoning administrator for the previously-built improvements. The application listed nineteen building, construction, and earthmoving improvements to the facility, including: replacing shelters and benches; adding a target berm; adding earthen berms for safety and noise reduction and to restrict access to the [637]*637shooting area; replacing and moving the rules board for increased visibility; installing a chain-link fence to control access to the shooting range; increasing the height of target backstop berms; installing a gate to the pond; replacing and resurfacing certain bridges; improving the parking lot surface; and drilling a new well and enclosing it within a pump house. The zoning administrator approved the permit twelve days after it was submitted, with only the following notation: “No new work to be completed; Brings site into conformance.” The zoning administrator publicly posted the permit as provided by 24 V.S.A. § 4443(b), and it was not appealed within the fifteen-day appeal period, as required by 24 V.S.A.§ 4464(a).1

¶ 3. On June 18, 2002, landowners sent a letter to the zoning administrator, challenging the Club’s expansion and the increase in noise and activity level. In a written response, the zoning administrator refused to take action on the grounds that he had granted the Club a permit and the permit was not appealed. The zoning administrator also stated in his response that because there was no change in the posted hours of the shooting range, the use of the range during those hours did not constitute a change or an expansion of a nonconforming use. Landowners appealed to the DRB, which affirmed the zoning administrator’s decision. The DRB acknowledged that the zoning administrator lacked authority to approve the permit application, but concluded that the permit approval nevertheless became final when it was not appealed. Landowners then appealed to the Environmental Court.

¶ 4. After a merits hearing, the Environmental Court, relying on our decision in In re Jackson, 2003 VT 45, ¶ 23, 175 Vt. 304, 830 A.2d 685, explained that nonconforming uses are allowed to continue in their preexisting, nonconforming status without conditional use approval, but they remain nonconforming until or unless they obtain conditional use approval from the DRB. Because the use of the land was nonconforming, no improvements should have been approved without review by the DRB under § 4.7 (“Non-conforming Use”) or § 5.5 (“Conditional Use Approvals”) of the Town of Richmond Zoning Regulations. The court concluded that the zoning administrator improperly authorized the improvements by its error in acting on the application instead of forwarding it to the DRB. The court further concluded, however, that the zoning administrator’s approval of the Club’s after-the-fact permit application extended only to the as-built construction and structures, but did not transform the Club’s use of the land into a conforming use for the future. The court held that, notwithstanding the newly-permitted physical changes to the property, any increase or expansion in its actual use after 1969 would still require approval as a change to a nonconforming use under § 4.7, or as a conditional use under § 5.5, of the zoning regulations. From the evidence presented, the court found that the use of the shooting range had at least doubled since its use in the 1970s and 1980s, and the hours and seasons of operation also increased.

¶ 5. The Club raises no challenge to the Environmental Court’s findings. It is also undisputed that the zoning administrator lacked the authority to approve the permit application, that landowners failed to appeal the zoning administrator’s permit approval within the time allotted by law, [638]*638and that landowners are now bound by the zoning administrator’s approval of the permit. The Club argues on appeal that the Environmental Court erred by construing the unappealed zoning permit to apply solely to structures and not to uses, and in concluding that the Club’s expansion in use required further review and approval from the DRB. The Club contends that the principle of the exclusive remedy codified by 24 V.S.A. § 4472(d) compels a conclusion that the uses were already permitted by the zoning administrator’s mistakenly-granted permit.2

¶ 6. The Club relies on this Court’s previous pronouncements that we will strictly enforce the exclusivity-of-remedy provision, “consistent with the evident legislative intent to require all zoning contests to go through the administrative review process in a timely fashion,” Town of Charlotte v. Richmond, 158 Vt. 354, 356, 609 A.2d 638, 639 (1992) (internal quotations omitted), and that the policy of repose is implemented even where the act or decision is ultra vires, Levy v. Town of St. Albans, 152 Vt. 139, 143, 564 A.2d 1361, 1364 (1989). We review the construction of a statute on a nondeferential and plenary basis. In re Dep’t of Bldgs. & Gen. Servs., 2003 VT 92, ¶ 8, 176 Vt. 41, 838 A.2d 78. We review the Environmental Court’s construction of local zoning ordinances to determine whether the court’s interpretation is clearly erroneous, arbitrary, or capricious. In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60.

¶ 7. Notwithstanding the Club’s argument that this case is simply an application of the exclusivity principle contained in § 4472(d), we conclude that the determinative question is the extent of the zoning administrator’s decision and the interpretation of the notation: “Brings site into conformance.” The Club argues that the notation means that the zoning administrator effectively issued a permit for a use that is not permitted in the district, that the permit should be considered a mistakenly-granted conditional use permit, and that, once the permit issued and was not timely appealed, the Club’s use of the land could no longer be considered nonconforming. We disagree for the reasons that follow.

¶ 8. The Club’s focus on one portion of the zoning administrator’s notation fails to take into consideration that the notation does not stand alone. The full notation in the zoning administrator’s permit approval is: “No new work to be completed',

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Bluebook (online)
2006 VT 33, 898 A.2d 1251, 179 Vt. 636, 2006 Vt. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-smith-vt-2006.