In re Appeal of Tekram Partners

2005 VT 92, 883 A.2d 1160, 178 Vt. 628, 2005 Vt. LEXIS 177
CourtSupreme Court of Vermont
DecidedJuly 28, 2005
DocketNo. 04-049
StatusPublished
Cited by21 cases

This text of 2005 VT 92 (In re Appeal of Tekram Partners) 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 Tekram Partners, 2005 VT 92, 883 A.2d 1160, 178 Vt. 628, 2005 Vt. LEXIS 177 (Vt. 2005).

Opinion

¶ 1. Appellants Tekram Partners, Century Partners, and Judge Companies (hereinafter collectively referred to as Tekram Partners) appeal the environmental court’s decision upholding three zoning violations issued by the City of South Burlington. Tekram Partners argue that the exclusivity-of-remedy provision in 24 V.S.A. § 4472 bars the City from raising certain violations because the City approved these disputed design features when it issued certificates of occupancy three years earlier. Tekram Partners further contend that nothing on the approved site plan or in the City’s zoning ordinance imposes a requirement to “stripe” (i.e. paint) parking spaces. As to two of the violations raised on appeal, we reverse. Regarding the third violation, we conclude that the lines indicating parking spaces on the approved site plan are sufficient to impose a striping requirement, and, therefore, we affirm the environmental court’s decision to uphold the striping violation. The City-cross-appeals from the environmental court’s dismissal of an alleged zoning violation regarding the unapproved location of one garbage dumpster. Tekram Partners complain that the fifteen-year limitations period under 24 V.S.A. § 4454 (formerly §44961) precludes the City’s enforce[629]*629ment of this violation because the dumpster has been in the same location since 1975. We reverse on this issue.

¶ 2. We first consider the alleged violations regarding the paving of two triangular green areas and the conversion of retail space to storage space. The City alleges these violations on the basis that Tekram Partners deviated from the site plan without the necessary approval from the City. Tekram Partners appeal the violations, arguing that the City’s zoning administrator approved of the disputed areas by issuing certificates of occupancy for Tekram Partners’ Four Market Street Building. Tekram Partners argue that § 4472(a), therefore, bars the City from enforcing violations in these areas because the City failed to timely appeal the zoning administrator’s decision to issue certificates of occupancy for the project. The environmental court upheld these violations, reasoning that the disputed design features deviated from the project as permitted, and that Tekram Partners had not received the necessary approval fi’om the City for these deviations. Without analysis of the potential effect that the certificates of occupancy had in ratifying the nonconforming design features, the environmental court concluded that Tekram Partners’ § 4472(a) argument was “not persuasive.” After reviewing the record and the applicable zoning regulations, we hold that the environmental court’s conclusion on this issue is not supported. The City’s enforcement of these violations three years after its own zoning administrator issued certificates of occupancy that apparently cover the entire Four Market Street project amounts to the type of untimely collateral attack on the administrator’s decision that is expressly barred by § 4472(a). Accordingly, we reverse the environmental court’s decision to uphold these violations.

¶ 3. The alleged violations occur at the northeast comer of the Four Market Street Building, one of five structures within a larger Planned Unit Development (PUD) known as the 100 Dorset Street Complex. On March 12, 1996, the City’s planning commission issued final plat approval of the PUD.2 Among other things, the City approved a 15,000 square-foot building at Four Market Street.

¶ 4. On July 3, 1997, Tekram Partners obtained a zoning permit from the City authorizing construction of the Four Market Street Building. During construction, Tekram Partners paved two triangular areas at the northeast comer of the building and installed an overhead door for access to the part of the building that would be used for storage at this [630]*630comer. When construction was complete, Tekram Partners requested a certificate of occupancy from the City for the Four Market Street Building. Pursuant to §27.20 of the South Burlington Zoning Regulations, once Tekram Partners notified the City that the Four Market Street project was ready for use and occupancy, the City’s zoning administrator then had a duty to make a final inspection of the premises and issue a certificate of occupancy “if the project [was] found to conform with the provisions of [the] ordinance.” S. Burlington Zoning Regulations § 27.202.

¶ 5. In December 1997, the City’s zoning administrator conducted an inspection of the Four Market Street Building pursuant to Tekram Partners’ request. On December 11,1997, the City’s zoning administrator issued three certificates of occupancy for the retail units that comprise the Four Market Street Building. Attached to the certificates was a sketch depicting the floor plan of the building and indicating the square footage of each retail unit. Also included on this sketch was an area labeled “Mechanical 580 SF,” which corresponded with the northeast comer of the building where the paved areas and the overhead door had been constructed. The environmental court found that the two paved areas and the storage area would have been visible to the City’s zoning administrator at the time of inspection. The court also found that at no time during the inspection did the zoning administrator alert Tekram Partners to the possibility that the paved areas or the storage area were inconsistent with the approved plan and, therefore, in violation of the zoning ordinance. The findings also indicate that Tekram Partners considered the issuance of the certificates as final approval of the Four Market Street Building for which no further certificates of occupancy were required.

¶ 6. Three years later, on September 26, 2000, the City issued a notice of violation to Tekram Partners, which alleged, among other things, that the paved areas and the storage area located at the northeast comer of the Four Market Street Building violated the zoning ordinance. Tekram Partners timely appealed the notice of violation to the City’s development review board, which upheld the notice of violation. Thereafter, Tekram Partners appealed to the environmental court, which dismissed some of the violations, but upheld the violations regarding the paved areas and the storage area. Tekram Partners now appeal from the environmental court’s decision.

¶7. We now consider whether 24 V.S.A. § 4472(a) precludes the City from enforcing the alleged violations regarding the two paved triangular areas and the storage area at the northeast comer of the Four Market Street Building. When determining whether the trial court’s conclusions are consistent with the applicable law, we exercise plenary, nondeferential review. Sigler Found, v. Town of Norwich, 174 Vt. 129, 130, 807 A.2d 442, 443-44 (2002). We will uphold the court’s conclusions if they are consistent with the controlling law and are supported by the findings. Id. On this issue, the environmental court’s conclusion is not supported by the findings and largely ignores the effect of § 4472(a).

¶ 8. An interested person or municipality3 may file an appeal with the appropriate panel within fifteen days of any decision or act taken pursuant to a provision of any plan or bylaw. 24 V.S.A. § 4465 (formerly § 4464). This is the exclusive remedy for contesting local zon[631]*631ing decisions or actions. Id. § 4472(a). We have “strictly enforced” this exclusivity-of-remedy provision to ensure timely review of all zoning disputes, thereby assuring parties of finality.

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Bluebook (online)
2005 VT 92, 883 A.2d 1160, 178 Vt. 628, 2005 Vt. LEXIS 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-of-tekram-partners-vt-2005.