In Re Jolley Associates

In re Appeal of Jolley Associates (2005-196)

2006 VT 132

[Filed 15-Dec-2006]

NOTICE: This opinion is subject to motions for reargument under

V.R.A.P. 40 as well as formal revision before publication in the Vermont

Reports. Readers are requested to notify the Reporter of Decisions,

Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of

any errors in order that corrections may be made before this opinion goes

to press.

2006 VT 132

No. 2005-196

In re Appeal of Jolley Associates Supreme Court

On Appeal from

Environmental Court

December Term, 2005

Merideth Wright, J.

Joseph S. McLean of Stitzel, Page & Fletcher, P.C., Burlington, for

Appellant.

Howard J. Seaver of Greene, Seaver & Carver, P.C., Burlington, for

Appellee.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. BURGESS, J. The Town of Shelburne appeals an Environmental

Court ruling on summary judgment that allows Jolley Associates ("Jolley")

to proceed with its application for a proposed gas station and convenience

store on Route 7 in Shelburne. The Town argues that the court exceeded its

jurisdiction and that further consideration of Jolley's proposed

development should be precluded because its conditional use application was

already once denied on the merits. We affirm.

¶ 2. This is the second appeal arising from Jolley's application

for this project. Jolley submitted its conditional use application five

days before the effective date of a 1997 amendment to the Town's zoning

scheme that excluded gas stations from the residential-commercial district

at issue. The filing included a site plan but no formal site plan

application. The Environmental Court ruled that the conditional use

application, filed after enactment of the amendment but before its

effective date, should be reviewed under the terms of the new regulation

rather than the old. We reversed, holding that a permit applicant enjoyed

a vested right to review under the rules still in effect at the time of

application, provided that the application is "validly brought and pursued

in good faith." In re Handy, 171 Vt. 336, 351, 764 A.2d 1226, 1239 (2000)

(internal quotations omitted). The case was remanded to the Town's Zoning

Board of Adjustment (ZBA) for consideration of Jolley's application under

the doctrine of vested rights, subject to review by the Environmental

Court. Id. at 351.

¶ 3. On remand, the ZBA determined that Jolley had no vested right

to review of its application under the 1995 bylaws that would have allowed

the proposed use. (FN1) Jolley again appealed to the Environmental Court.

The Environmental Court bifurcated the proceedings to first consider the

vested rights question and then to proceed, if necessary, with an

evidentiary hearing on the merits of the application. In a March 7, 2002

decision, the court concluded that Jolley's application was "validly

brought and pursued in good faith" such that Jolley was entitled to have

its application considered on the merits under the older version of the

bylaws. Following a subsequent merits hearing, the Environmental Court

issued an order on May 3, 2002, denying the conditional use permit on two

grounds: (1) the proposal improperly included two principal structures-a

building and separate canopy over the gas pumps-in violation of the Town's

1995 zoning bylaws, and (2) Jolley failed to show that the proposal would

not adversely affect all site plan bylaws then in effect-a requirement of

conditional use approval-including bylaws regarding site plan standards for

on-site circulation, landscaping and screening, and anticipated glare. The

court further stated:

This appeal is concluded and hereby closed on the docket, without

prejudice to its being reopened upon motion filed within 45 days

after any further decisions have issued from the Planning

Commission and/or the ZBA on any further applications filed by

this applicant for this project; in particular any application . .

. for site plan approval and any application to the ZBA under §

210.6. (FN2)

PC 31-32. (Emphasis added.) Neither party appealed this decision.

¶ 4. In June 2003, Jolley submitted a site plan application to the

Town zoning administrator. The zoning administrator denied the application

on the grounds that the site plan included a gas station, a use no longer

allowed under the new zoning rules. Jolley appealed to the ZBA, which

agreed that Jolley had no vested right to site plan review under the old

bylaws and upheld the zoning administrator's decision. Jolley appealed to

the Environmental Court.

¶ 5. The Environmental Court concluded that because Jolley had a

vested right to its proposed conditional use, it also had a right to site

plan review of the proposal. However, unlike conditional use, the site

plan application would not be reviewed under the old bylaws because Jolley

had not filed a site plan application before the bylaws were amended. The

court ordered that the site plan application be forwarded to the Planning

Commission with instructions to review the site plan under the applicable

2003 site plan bylaws. Implicit in this holding was the court's acceptance

that Jolley retained a vested right to seek approval of the proposed use

even after its initial conditional use application had been denied. The

court attempted to clarify its earlier denial "without prejudice,"

explaining that the denial of Jolley's conditional use application at that

time "was specifically without prejudice to [Jolley]'s submittal of its

application for site plan approval to the Planning Commission." Thus,

although the Town prevailed in the dispute over whether the old bylaws or

new bylaws would govern site plan review (the Environmental Court ruled

that the new rules applied), the Town appeals the court's order that the

site plan application be considered at all.

¶ 6. The Town claims on appeal that the Environmental Court erred

by: (1) exceeding its jurisdiction in reaching issues beyond Jolley's

statement of questions, and (2) ordering Jolley's site plan application to

proceed despite the court's earlier denial of Jolley's conditional use

application on the merits. We affirm, concluding that the court did not

exceed its jurisdiction and that the court's denial of Jolley's conditional

use application did not extinguish its vested right to application of the

earlier conditional use bylaws.

¶ 7. We review a grant of summary judgment by applying the same

standard as the trial court and will affirm if there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter

of law. In re Curtis, 2006 VT 9, ¶ 2, __Vt. __, 896 A.2d 742 (mem.). The

court's interpretation of zoning ordinances is reviewed for clear error.

Id. Conclusions of law are reviewed de novo. In re Beckstrom, 2004 VT 32,

¶ 9, 176 Vt. 622, 852 A.2d 561 (mem.).

I.

¶ 8. We first consider whether the Environmental Court exceeded

its jurisdiction by addressing matters beyond the literal language of

Jolley's stated questions: (1) "Should Jolley's site plan be reviewed under

the 1995 Bylaws?" and (2) "Does the decision appealed from represent a

violation of [the Environmental Court's order] dated May 3, 2002?" The

Town argues that the Environmental Court should have ended its discussion

regarding Jolley's site plan application once it determined that the 2003

site plan bylaws were the applicable standard for review. According to the

Town, the court improperly reached the question of whether the zoning

administrator erred by declining to forward the application to the planning

commission when that question was not before the court. We disagree.

¶ 9. As a general rule, "the [E]nvironmental [C]ourt is confined to

the issues raised in the statement of questions filed pursuant to an

original notice of appeal." In re Garen, 174 Vt. 151, 156, 807 A.2d 448,

451 (2002); see also V.R.E.C.P. 5(f) ("appellant may not raise any question

on the appeal not presented in the statement [of questions]"). The Town's

reliance on Garen as a limit to the Environmental Court's jurisdiction in

this matter is misplaced. Garen addressed, inter alia, whether intervenors

are prohibited from filing their own statement of issues on appeal. We

concluded that, because Vermont Rule of Civil Procedure 76(e)(4)(B)

expressly limited the filing of the statement of questions to the

appellant, intervenors are permitted only to argue issues raised by a

principal party. Id. (FN3) The issue here is distinguishable because the

Environmental Court did not reach distinct issues beyond Jolley's statement

of questions, but rather addressed matters intrinsic to Jolley's question

of whether its site plan should be reviewed under the 1995 bylaws. The

literal phrasing of the question cannot practically be considered in

isolation from the zoning adminstrator's action that prompted the appeal.

Because the zoning administrator declined to forward the application to the

planning commission for review on the basis that Jolley had no vested right

to site plan application review, the question presented necessarily

encompassed the underlying question of whether Jolley had a such a right.

See In re Hignite, 2003 VT 111, 9, 176 Vt. 562, 844 A.2d 735 (mem.)

(construing statement of questions liberally in favor of party exercising

appeal rights). We therefore conclude that the court did not exceed its

jurisdiction by considering whether Jolley's vested right to conditional

use included a right to site plan review in answering the question of

whether Jolley's site plan should be reviewed under the old or new bylaws.

II.

¶ 10. We turn to the remaining issue of whether the 2002 denial of

Jolley's conditional use application on the merits extinguished its vested

right to application of the earlier conditional use bylaws. The Town

argues that the Environmental Court's denial of the application "without

prejudice" was improper and that under the successive application doctrine

Jolley lost its vested right when its application was denied.

¶ 11. Zoning rights generally vest at the time of application.

Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761

(1981). We adopted the Smith rule to avoid numerous and protracted

litigations because, at any given time, permits are in varying stages. See

Smith, 140 Vt. at 182, 436 A.2d at 761 (citing avoidance of "extended

litigation" and "protracted maneuvering" as reasons for adopting the

minority rule). We noted in Smith that this was "the more equitable rule

in long run application, especially where no amendment [was] pending at the

time of the application." Id. We have cautioned, however, that a

developer must submit a "proper application" before acquiring a vested

right. In re Ross, 151 Vt. 54, 57, 557 A.2d 490, 492 (1989). There is no

dispute that Jolley acquired a vested right to consideration of its

proposed use by filing its February 6, 1997 conditional use application.

This case requires us to decide whether Jolley continued to retain this

vested right after the conditional use application was denied on the merits

but "without prejudice" to Jolley's ability to submit further applications

for the project.

¶ 12. Though "res judicata does not apply to administrative

proceedings as an inflexible rule of law, the principles of res judicata

and collateral estoppel generally apply in zoning cases as in other areas

of the law." In re Carrier, 155 Vt. 152, 157-58, 582 A.2d 110, 113 (1990)

(citation omitted). The general rule, then, is that "a zoning board or

planning commission may not entertain a second application concerning the

same property after a previous application has been denied, unless a

substantial change of conditions had occurred or other considerations

materially affecting the merits of the request have intervened between the

first and second application." Id. at 158, 582 A.2d at 113 (internal

quotations omitted). One change in conditions sufficient to allow for

consideration of a successive application is "when the application has been

substantially changed so as to respond to objections raised in the original

application or when the applicant is willing to comply with conditions the

commission or court is empowered to impose." Id. We recently considered

the significance of the Environmental Court's "denial without prejudice" of

a zoning application, and concluded that the phrase is no more than an

expression of the successive application doctrine and confers no greater

right to reapply than is allowed by that doctrine. In re Armitage, 2006 VT

113, ¶ 6, __ Vt. __, __ A.2d __.

¶ 13. Jolley argues that the Environmental Court did not outright

deny its application, but withheld approval pending consideration by the

town planning commission of its site plan application, in something

analogous to a remand. We held in In re Maple Tree Place that a trial

court was within its discretion to close its proceedings and allow the

matter to be heard by the proper municipal body before making a final

judgment. 156 Vt. 494, 498-99, 594 A.2d 404, 406 (1991). The use of

remand in zoning cases is now provided for by the recently adopted Rules

for Environmental Court Proceedings. See V.R.E.C.P. (5)(i) (providing for

remand for reconsideration at any time before judgment). Remand is

appropriate to return the matter to the Town for further consideration if

the proposed use or site plan, or both, were incomplete, inadequate or

subject to a different approach, or if it appeared that the project was

denied due to an erroneous evaluation. See Maple Tree Place, 156 Vt. at

499, 594 A.2d at 406-07 (citing examples appropriate for remand).

¶ 14. We agree with Jolley that, with respect to compliance with

site plan bylaws, the Environmental Court's 2002 holding was in essence, if

not technically, a remand. First, the Town's bylaws allowed for the filing

of a conditional use application prior to the filing of a site plan

application. It would be incongruous to require that the applicant fully

litigate its site plan application before it has filed the application.

Second, the court anticipated that Jolley would submit a site plan

application to the ZBA when it stated that its decision was "without

prejudice to [Jolley's] submittal of its application for site plan approval

to the Planning Commission." By this statement, the court indicated that

it did not intend to finally resolve the issue of site plan compliance.

The court stated only that there was insufficient evidence at the present

time to "make the positive finding that the application will not adversely

affect" the site plan bylaws. We thus conclude that the issue of site

plan compliance was not finally determined by the May 2002 decision.

¶ 15. We do not similarly view the court's opinion concerning the

proposed canopy as a withholding of final judgment. The question of the

canopy's compliance was simply a legal determination of whether the canopy

was a "principal structure." The court concluded that it was but denied

the application "without prejudice to [Jolley's] proceeding with the

project without the canopy." The court went on to state that Jolley "may

choose whether to proceed with the project with gasoline service and its

attendant lighting and fire suppression systems contained in a smaller

housing over each pump island." Alternatively, the court could have

granted approval of the application conditioned on removal of the canopy.

See 24 V.S.A. § 4464(b)(2) ("In rendering a decision in favor of the

applicant, the panel may attach additional reasonable conditions and

safeguards as it deems necessary . . . ."); In re Miller, 170 Vt. 64, 73,

742 A.2d 1219, 1226 (1999) ("Functioning as the zoning board on appeal, the

court has broad discretion in fashioning permit conditions in connection

with conditional use approval."). In this case the court did not grant

conditioned approval, perhaps because of the alternative bases for denying

the application and its apparent belief that a denial without prejudice

could accomplish the same ends. While we do not conclude that the denial

of an application preserves any right to reapply beyond that permitted by

the successive application doctrine, Armitage, 2006 VT 113, ¶ 6, we

nevertheless conclude that Jolley retains a vested right to refile a

conditional use application under the old bylaws.

¶ 16. Ordinarily, denial of a zoning application requires that the

applicant file a new application that substantially revises its proposal to

"address[] all concerns that prevented approval of the prior application."

Armitage, 2006 VT 113, ¶ 4. The newly filed application is then subject

to the bylaws in effect at the time of its filing. Smith, 140 Vt. at

181-82, 436 A.2d at 761. In Ross, we held that the filing of an incomplete

Act 250 application, later denied, left the applicants with no vested

right. 151 Vt. at 57, 557 A.2d at 492. In so holding, we stated our

concern that landowners not be able to "easily avoid regulatory

requirements by submitting a request for a permit based on partial and

insufficient information." Id. at 59, 557 A.2d at 492-93. Here, by

contrast, the application was completed and our concern for easy avoidance

is lessened. Further, the identified concern that required

revision-removal of the canopy-was spelled out by the court; a

reapplication would not require the sort of substantial revision that

should dictate a loss of vested rights. Finally, Jolley could have

reasonably relied on the court's representation that the denial would not

prevent it from reapplying without the canopy when it did not appeal that

decision. For these reasons we decline to find that the 2002 denial

extinguished Jolley's vested right.

¶ 17. Having concluded that Jolley retained a vested right to refile

a conditional use application under the old bylaws, we also conclude, and

the Town does not dispute on appeal, that Jolley's vested right to

conditional use includes a right to site plan review under the bylaws in

effect at the time the site plan application was filed. Therefore, the

Environmental Court's order that the site plan application be reviewed by

the planning commission was not in error.

Affirmed.

FOR THE COURT:

_______________________________________

Associate Justice

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Footnotes

FN1. Jolley provided the full opinion of the ZBA in its Supplemental Printed

Case. The Town moved to strike the ZBA's opinion along with a letter from

the zoning administrator also included in the Supplemental Printed Case.

Because we need not consider either document to reach our decision, the

Town's motion to strike is denied as moot.

FN2. Section 210.6 provides the ZBA authority to extend boundary lines in

the residential-commercial district by conditional use permit.

FN3. Rule 76(e)(4)(B), now repealed, has been carried forward in substantial

part in the 2005 adoption of the Vermont Rules of Environmental Court

Proceedings. See V.R.E.C.P. 5(f).