In re Morrill House, LLC

2011 VT 117, 35 A.3d 148, 190 Vt. 652, 2011 Vt. LEXIS 117
CourtSupreme Court of Vermont
DecidedSeptember 30, 2011
DocketNo. 10-376
StatusPublished
Cited by8 cases

This text of 2011 VT 117 (In re Morrill House, LLC) 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 Morrill House, LLC, 2011 VT 117, 35 A.3d 148, 190 Vt. 652, 2011 Vt. LEXIS 117 (Vt. 2011).

Opinion

¶ 1. Applicants Howard Smith and Morrill House, LCC appeal from a decision of the Superior Court’s Environmental Division denying their request for a variance to subdivide property located in the Town of Pair Haven, Vermont. They contend that their application should be deemed approved because the town zoning board of adjustment failed to issue its decision denying the application within the deadline prescribed by the relevant statute and local zoning ordinance. We affirm.

V 2. On October 15, 2009, applicants submitted a zoning permit application seeking approval to subdivide the subject property. The town zoning administrator denied the application after concluding that the proposal failed to comply with side- and rear-yard setbacks and minimum-lot-width requirements. Applicants then submitted their application to the zoning board of adjustment, which held a hearing on November 9, 2009. The board entered into an executive session immediately following the hearing and voted at that time to deny applicants’ request.1 [653]*653One of the board members was charged with drafting a written decision, and the zoning administrator was instructed to inform applicants of the board’s decision. The zoning administrator averred that on the day of the board hearing he told Howard Smith that he would telephone him with notice of the board’s decision and that he did so the next morning, leaving a message on Smith’s cell phone. Smith denied receiving a telephone message informing him of the decision.

¶ 3. The board member assigned to write a decision did not deliver one to the board clerk until January 11, 2010. The decision was then distributed to the other board members, who reviewed and signed it on January 15, 2010, sixty-seven days after the board hearing had adjourned. Shortly thereafter, applicants received the decision and appealed to the environmental court, arguing only that their variance application should be deemed approved under the applicable state and local law because of the board’s failure to timely notify them of the decision. In response to the parties’ cross-motions for summary judgment, the environmental court granted summary judgment to the Town, ruling that, even assuming the board failed to notify applicants of its decision until shortly after January 15, 2010, the deemed approval remedy was not warranted under the circumstances, as a matter of law. Applicants appeal to this Court, arguing that the board’s negligence in not notifying them of its decision before the deadline set by state and local law entitled them to deemed approval of their application under those laws, and that, in any event, issues of material fact concerning the timing of the board’s decision should have precluded summary judgment.

¶ 4. We begin with the relevant statute and town zoning ordinance. Section 4464(b)(1) of Title 24 provides that a municipal panel reviewing a land development application “shall . . . issue a decision within 45 days after the adjournment of the hearing, and failure of the panel to issue a decision within this period shall be deemed approval and shall be effective on the 46th day.”2 The following sentence of the same provision provides that “[djecisions shall be issued in writing and shall include a statement of the factual bases on which the . . . panel has made its conclusions and a statement of the conclusions.” 24 V.S.A. § 4464(b)(1). The statute further requires that decisions “be sent by certified mail within the period set forth in subdivision (1). . . to the applicant.” Id. § 4464(b)(3). The relevant provisions of the local zoning ordinance are the same as, or similar to, these [654]*654statutory provisions in all essential and relevant parts. See Town of Fair Haven Zoning Ordinance §§ 666, 667 (1998).3

¶ 5. Applicants argue that these laws provide a remedy of deemed approval when the Town negligently fails to follow the procedures set forth therein. Specifically, applicants point out that neither the statute nor the ordinance provides for notification by telephone, and, in any event, there are disputed facts as to whether the board voted to deny their variance application on November 9,2009 and whether they were notified of that decision the next day by telephone. Appli- • cants further point to the board’s failure to notify them in a timely manner of the factual bases for its decision. Applicants also briefly note that the environmental court failed to consider certain substantive issues concerning their application for a variance.

¶ 6. Taking the last claim first, we conclude that applicants did not raise before the environmental court, and thus failed to preserve, any substantive issues regarding the merits of the variance decision. The environmental court noted that the “sole issue” raised by applicants in their appeal of the board’s decision was their claim that then’ application should be deemed approved because of the board’s procedural notice violations in issuing its decision. This is confirmed by applicants’ statement of questions submitted to the environmental court. On appeal to this Court, applicants have not cited the record to demonstrate otherwise.

¶ 7. Regarding applicants’ claim of disputed facts precluding summary judgment, the environmental court found no dispute that the board made a decision to deny applicants’ variance request on November 9, 2009. Applicants’ lone, unsupported sentence in their brief on appeal stating that this fact was in dispute cannot overcome the environmental court’s unchallenged finding that this fact, as confirmed in the three affidavits submitted by the Town, was undisputed. As for applicants’ claim that it was disputed whether they were ever orally notified of the decision before they received the written decision shortly after January 15, 2010, the environmental court acknowledged that this fact was in dispute, but determined that the Town was entitled to summary judgment even assuming that the Town had not provided applicants with oral notice of the decision.

¶8. Thus, this appeal boils down to whether applicants were entitled to deemed approval of their variance application where the board made a decision on the application before the forty-five-day deadline, but did not notify applicants of the decision or provide them with a written decision until after forty-five days. As we pointed out in In re Ashline, because of the prominence of the deemed approval remedy in various contexts in chapter 117 of Title 24, we have construed the relevant statutory language on numerous occasions “and have consistently held that the purpose of the deemed approval remedy provided is to ‘remedy indecision and protracted deliberations on the part of zoning boards and to eliminate deliberate or negligent inaction by public officials.’ ” 2003 VT 30, ¶ 13, 175 Vt. 203, 824 A.2d 579 (quoting In re Fish, 150 Vt. 462, 464, 554 A.2d 256, 258 (1988)). “We have cautioned against extending the deemed approval remedy beyond this limited purpose, as improper application ‘can operate to grant permits wholly at odds with the zoning ordinance.’ ” Id. (quoting In re Newton Enters., 167 Vt. 459, 465, 708 A.2d 914, 918 (1998)). “Consequently, we have strictly construed the deemed approval remedy to apply only when clearly consistent with the statutory purpose.” Id.

[655]*655¶ 9. In Hinsdale v. Village of Essex Junction,

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Bluebook (online)
2011 VT 117, 35 A.3d 148, 190 Vt. 652, 2011 Vt. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-morrill-house-llc-vt-2011.