F|LED

MAR 31 2010

Environmental Court of Vermont

State of Ver‘mont VERMONT
ENV'RONMENTALCOURT
ENTRY REGARDINGMOTION

Sunset Cliff Homeowners Assoc., Inc. v. The City of Burlington and Keystone

 

Dev. Co£p. Docket No. 198-8-06 Vtec
Title: Keystone Development Corporation's Motion to Dismiss and For

Declaratory Judgment under the Federal Civil Rights Act and
Sunset Cliff Homeowners Association, Inc.'s Request for Permanent
Injunction

X Granted (as to Plaintiff's request for Permanent Injunction)

X Denied (as to Defendant's Motion to Dismiss and for Declaratory Judgment)

Plaintiff Sunset Cliff Homeowners Association (“Sunset Cliff”)
initiated this action to obtain preliminary and permanent injunctions against
Defendant Keystone Development Corporation (“Keystone"). This Court issued
the requested preliminary injunction on September 1, 2006. Keystone
thereafter sought and obtained permission to pursue an interlocutory appeal
before the Vermont Supreme Court, which affirmed this Court's issuance of the
preliminary injunction. See Sunset Cliff Homeowners Ass'n v. City of
Burlington, 2008 VT 56, j 1 (mem.). The legal issue that remains before us
after Keystone's unsuccessful interlocutory appeal is Sunset Cliff's request
for a permanent injunction. The parties have stipulated that the Court may
address the propriety of issuing a permanent injunction without a further
evidentiary hearing.' See Notification Regarding Results of Party
Discussions, filed July 20, 2009.

Sunset Cliff has filed a draft Permanent Injunction Order in support of
its pending request (filed on June ll, 2009). The permanent injunction, if
ordered as Sunset Cliff requests, would prevent Keystone from conducting any
pre-development activities on its 40.9i acre parcel on Appletree Terrace in
the City of Burlington without first obtaining the necessary permits required
under the City of Burlington Zoning Ordinance. The City of Burlington
{“City"), initially named as a defendant in these proceedings for mandamus
purposes, does not object to the requested permanent injunction.

Keystone presents two legal issues in its pending motion: first,
Keystone seeks dismissal of Sunset Cliff's permanent injunction request by
asserting that it has been rendered moot by the Supreme Court's determination
in a related, but separate matter. Second, Keystone requests that within
this private zoning enforcement proceeding, the Court render a declaratory
ruling that a permanent injunction, if issued, would violate its procedural
and substantive due process rights, as codified under 42 U.S.C. § 1983.

We address the permanent injunction request, the motion to dismiss, and
the request for declaratory judgment in turn. For the sole purpose of
putting the pending motion and requests into context, we first briefly review
the following case history.

In August of 2006, Keystone notified the City of Burlington Zoning
Administrator by letter/email that it intended to perform ditch-digging and
tree-cutting work on the parcel in question under the guise of performing

Sunset Cliff Homeocmers Assoc., Inc. v. The City of Burlington and Keyston€
Dev. Corp., #198-8-06 Vtec, Entry Order on various motions (March 31, 2010)
_2_

 

agricultural and silvicultural work on the property. The ching
Administrator responded and informed Keystone that it must first submit a
zoning permit application, detailing the intended work that Keystone sought
to conduct. Keystone provided an outline of the work it intended to conduct,
but refused to submit a zoning application; Keystone asserted that the work
it intended to perform was agricultural and silvicultural in nature and did
not require a zoning permit under the then-existing zoning ordinance. In
response to Keystone's assertions, Sunset Cliff filed this enforcement
action. Sunset Cliff named the City as a party defendant, requesting that
the Court also direct the City to initiate enforcement proceedings against
Keystone. Prior to such an order being issued, the City began separate
enforcement proceedings by issuing a Notice of Determination to Keystone that
its planned activities constituted pre-development work and required a zoning
permit. Keystone filed a timely appeal of that determination with this
Court. See In re Keystone Dev. Corp. (NOD Appeal), No. 62-3-07 Vtec. After
a merits hearing, this Court affirmed the validity of the NOD; that
determination was left undisturbed when the Vermont Supreme Court dismissed
Keystone' s subsequent appeal, because the Court deemed the appeal moot. See
rn re reystone Dev. corp. (Non Appeai), 2009 v'r 13 11 7 (mem.) (“Any opinion
concerning the application of the no-longer- operative zoning ordinance would
not resolve a live controversy_. and would therefore exceed our jurisdiction.”
(citing Houston v. Town of Waitsfield, 2007 VT 135, 1[ 5, _183 Vt. 543
(mem.) ) ) .

K.eystone first argues in its pending motion that the Vermont Supreme
Court in the NOD appeal proceedings (appeal of Docket No. 62~3-0‘7 Vtec)
leaves this Court without the necessary jurisdiction to issue a permanent
injunction in these private zoning enforcement proceedings (Docket No. 198-8-
06 Vtec). Keystone supports its claim by arguing that the Supreme Court's
holding did not affirm the Zoning Administrator's decision that the specific
activities Keystone intended to conduct on its property required zoning
permits, but rather, merely purported that due to the 2008 amendment to the
Burlington Zoning Ordinance there was not a justiciable issue before the
Court and therefore that appeal was moot. Keystone appears to infer that the
Supreme Court “rendered moot" the NOD proceedings. We believe Keystone is
inaccurate in this regard and decline to adopt its reasoning.

We find no support for the assertion that the Supreme Court
determination that Keyst'one's appeal was moot somehow disturbed the NOD that

its planned activities required a permit. The Vermont Supreme Court
expressly limited its analysis to the legal sufficiency of Keystone's appeal;
it spoke only to the issue of whether Keystone had a vested right. The

Supreme Court held as follows:

We conclude . . . that Keystone does not have a vested right to
the application of the pre-amendment zoning ordinance to its
request to perform tree-cutting and ditch-digging work [without a
permit]. Having so concludedl it takes no prolonged analysis to
conclude that this appeal is moot. Any opinion concerning the
application of the no-longer¢operative zoning ordinance would not
resolve a live controversy, and would therefore exceed our
jurisdiction. Similarly, because no zoning permit application
has been filed under the 2008 zoning ordinance, any ruling on
that ordinance's application to such a permit request would be a
mere advisory opinion, which we lack the authority to render.

In re Keystone Dev. Corp., 2009 VT 13, 1| 7 (mem.) (citations omitted). As a
result of the Supreme Court's narrow holding, we can only conclude that the

Sunset Cliff Homeowners Assoc., Inc. v. The City of Burlington and Keystone

 

Dev. Corp., #198-8~06 Vtec, Entry Order on various motions (March 31, 2010)
_3_
NOD was left undisturbed._ The question before us now, which presents a

continuing and actual case-in-controversy, is whether, given the facts
presented, Keystone should be permanently enjoined from conducting pre-
development work that would require a permit. without first obtaining that
permit. We conclude that, given the facts presented, the requested
injunction should issue.

Keystone represents that it does not have any plans to conduct
development work on the property and that a permanent injunction is therefore
unnecessary. We applaud Keystone's pledge to abide by the applicable zoning
regulations. However, due to its history of actual or threatened ncn-
compliance with applicable zoning laws, which have already supported the
propriety of our issuance of the pending Preliminary Injunction. we conclude
that the requested permanent injunction is warranted as well.

The propriety of a permanent injunction is also supported by the
procedural history of this long-running land use dispute. In a previous
Docket, this Court issued a similar preliminary injunction against Keystone.
See City of Burlington v. Keystone Dev. Corp., Docket No. 153-8-04 Vtec. The
Preliminary Injunction in that Docket was issued against Keystone's planned
development activities on September 3, 2004 and remains undisturbed to this
day. Regardless, Keystone asserted that the 2004 Preliminary Injunction was
dismissed by the Supreme Court, when in fact the Supreme Court dismissed
I<eystone's appeal, not the underlying Injunction. See Sunset Cliff
Homeowners Ass'n.v. City of Burlington, 2008 VT 56 il B (mem.) .

 

Keystone’s past actions provide further support for the issuance of the
requested injunction. First, even after its development permit was denied,
Keystone began clearing a portion of itl land, thereby necessitating the
issuance of the 2004 .Injunction. E_d_. at 1[ B. Second, even with the 2004
Injunction in place, and a specific directive from the City of Burlington
Zoning Administrator in August of 2006, Keystone continued to assert its
intention to conduct tree-cutting and ditch-digging without a permit. These
actions reinforce the need for a clear directive that activities that
constitute, or are in preparation for, development must first be subject to
zoning permit application proceedings.

To avoid a similar situation of non-compliance and enforcement

litigation, the requested permanent injunction will serve to clarify
Keystone's legal responsibility to seek formal permit approval before it
conducts such work. Although Keystone argues that it does not have any

current plans to conduct development work on the property, a permanent
injunction in this instance will ensure that there is no future uncertainty
on behalf of Keystone that it must seek permit approval before conducting

development work of any kind on its 40.9:t acre parcel.

Under the circumstances outlined above, we find it necessary to include
in our analysis Keystone's previous misunderstanding of the 2004 Preliminary
Injunction and, as the record reflects, Keystone's propensity to conduct
development work without a permit. For these reasons, we find it necessary
to reject Keystone's Motion to Dismiss and grant Sunset Cliff’s request for a
permanent injunction.

Keystone also requests that this Court enter a declaratory judgment
that a permanent injunction would violate both its procedural and substantive
due process rights pursuant to the Federal Civil Rights Act, codified in 42
U.S.C. § 1983. Keystone claims that it has not had an opportunity to argue
that no permit is required for the particular development work and uses that

Sunset Cliff Homeowners Assoc., Inc. v. The City of Burlington and Keystone
Dev. Corp., #198-8-06 Vtec, Entry Order on various motions (March 3.1, 2010)
-4_

 

Keystone may engage in on its property. We reject this argument because the
record reflects that Keystone has had ample opportunity to argue that no
permit is required for the development work it has sought to conduct.

The Burlington Zoning Administrator, in response to Keystone's notice
that it intended. to conduct tree-cutting and ditch-digging work under the
auspices of agricultural and silvicultural development, issued a written
determination on August ll, 2005, that the work that Keystone intended to
conduct required a zoning permit. Keystone exercised its right to appeal
that determination and when it felt aggrieved by the determination rendered
by the City of Burlington Development Review Board and this Court, it filed

subsequent appeals . After full presentations by Keystone and other
interested persons, each tribunal concluded that Keystone's assertion of
permit exemption lacked merit. Keystone's appeal to the Supreme Court

resulted in that Court concluding that Keystone had failed to secure a vested
right to assert its position of permit exemption. In re Keystone Dev. Corp.,
2009 vT 13. ‘i 7 (mem.). With this procedural recordl we find no support for
Keystone's assertion that its substantive or procedural rights have been
violated.' ‘

We also note that the requested injunction would not prevent Keystone
from developing or working on its property once a permit is sought and
granted by the appropriate municipal panel. Keystone is not prohibited from
applying for zoning applications under the applicable zoning provisions, nor
will it prevent Keystone from commencing a legal challenge that some future
planned activity requires a zoning permit. Keystone's assertion that it has
been deprived of due process is without merit.

For all these-reasons, we conclude that Keystone's motion to dismiss
should be DENIED and Sunset Cliff's request for a permanent injunction should
be GRANTED. The requested Permanent Injunction accompanies this Entry Order.

This completes the current proceedings before this Court in this

March 31, 2010
Thomas S. Durkin, Judge Date

     

mm

 

Date copies sent to:

 

Copies sent to:
Attorney Job.n L. Franco, Jr. , for Defendant Keystone Dev. Corp.

Attorneys Robert B. Hemley and Ross A. Feldmann for Plaintiff Sunset Cliff
Homeowners Assoc., Inc.

Attorney Kimberlee J. Sturtevant for Defendant City of Burlington

 

* Keystone provides no citation to the authority oi` this Couli to render declaratory rulings be they in separate
proceedings or within the context of an enforcement proceeding We address Keystone s due process arguments
solely m the manner of objections to the requested permanent injunction

