2012 VT 42


In re Musty
Permit (2011-290)
 
2012 VT 42
 
[Filed 08-Jun-2012]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 

2012 VT 42

 

No. 2011-290

 

In re Musty Permit


Supreme Court


(Frederick P. Tiballi,
  Appellant)


 


 


On Appeal from


 


Superior Court,


 


Environmental Division


 


 


 


January Term, 2012


 


 


Thomas
  S. Durkin, J.


 

Mark L. Sperry of Langrock
Sperry & Wool, LLP, Burlington, for Appellant.
 
Liam L. Murphy and Damien J. Leonard of
Murphy Sullivan Kronk, Burlington, for Appellee.
 
Kimberlee J. Sturtevant of McNeil, Leddy & Sheahan, P.C., Burlington, for City of Burlington.
 
 
PRESENT:   Reiber, Skoglund and Burgess, JJ., and
Davenport and Zonay, Supr. JJ.,
                    
Specially Assigned 
 
 
¶ 1.            
SKOGLUND, J.   Appellee
Sherrill N. Musty* applied to the
Burlington Development Review Board (DRB) in 2008 for approval to subdivide a
14,947-square-foot property.  She sought to create one 8927-square-foot
lot containing her existing house (the “house lot”), and a 6020-square-foot
vacant lot on which she planned to build a new, smaller house (the “vacant
lot”).  The DRB approved the subdivision application on December 17, 2008. 
We affirm.
¶ 2.            
However, the DRB conditioned approval on appellee
submitting a revised plat prior to filing the final plat with the city clerk
that conformed to applicable front-yard setback requirements.  In order to
achieve the appropriate setback distances, the dividing line between the two
lots would shift slightly, thereby changing the square footage of each lot.
 Pursuant to the conditional approval, appellee
filed a revised plat with compliant front-yard setbacks and a new dividing line
that increased the vacant lot to 7220 square feet and decreased the house lot
to 7727 square feet.  This revised plat was reviewed and approved by the
city engineer, the DRB chairman, and the city zoning compliance officer.
 No party ever challenged any part of the subdivision process.
¶ 3.            
More than a year later, appellee applied for a
zoning permit to construct a single-family house on the vacant lot.  The
application was approved, and two sets of neighbors (including Frederick Tiballi, appellant here) appealed the decision to the DRB.  The
DRB affirmed, and appellant appealed to the Environmental Division of the
Superior Court. 
¶ 4.            
The Environmental Division expressed sympathy for appellant and other
neighbors because appellee was trying to develop a
lot that had initially been platted at 6020 square feet, but was subsequently
increased post-DRB approval to 7220 square feet.  However, the court
concluded that the proceedings concerning the subdivision approval were
“entirely proper” and followed the DRB’s “specific direction.”  The court
noted that the DRB directed appellee to submit a revised
subdivision plat conforming to the applicable setback requirements for staff
review prior to filing the plat with the city clerk.  Appellee
followed these directions “to the letter,” resulting in a properly approved and
recorded subdivision plat.  As a result, when the court reviewed the
pending construction permit application, it started with the understanding that
the underlying subdivision approval was properly granted.  The only issue
before the court was the construction permit application itself, and because
the application conformed to all applicable city ordinance provisions, the
court upheld the issuance of appellee’s zoning
permit.  We affirm.
¶ 5.            
Appellant raises a number of issues on appeal, all of which are
fundamentally attacks on the underlying subdivision approval.  Appellant
never challenged any part of the 2008 subdivision application or approval, so
the only issue before the Environmental Division was whether appellee’s construction permit application should have been
granted. On appeal, appellant makes no arguments as to why the construction
permit was improperly granted; he focuses solely on collaterally attacking the
earlier subdivision approval. While some of these arguments could potentially
have merit, none were preserved for appeal.  Accordingly, we do not
address them.  In re Merritt, 2003 VT 84, ¶ 7,
175 Vt. 624, 833 A.2d 1278.
¶ 6.            
Even if the DRB’s approval of the subdivision application was ultra vires, as appellant contends, the policy of repose imposed
by statute and by this Court does not allow appellant to challenge the
subdivision approval at the Environmental Division level because he did not
appeal the decision to the DRB.  See 24 V.S.A. § 4472(a) (“[T]he exclusive
remedy of an interested person . . . shall be the appeal to the
[DRB], and the appeal to the environmental division from an adverse decision
upon such appeal.”); Levy v. Town of St. Albans, 152 Vt. 139, 142-43,
564 A.2d 1361, 1363 (1989) (allowing collateral attacks on final decisions of
town zoning boards, even if ultra vires, would
“severely undermine the orderly governance of development and would upset
reasonable reliance on the process”). 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





*  Ms. Musty’s name is alternately spelled “Sherrill N.” and
“Cheryl Ann” in various documents in the proceedings below.  Her attorney
on appeal spells it “Sherrill N.” so we presume this is correct.



