                                   STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                           }
In re: Paynter 2-Lot Subdivision           }       Docket No. 160-7-08 Vtec
        (Appeal of Paynter)                }
                                           }

                         Decision and Order on Pending Motions

       Appellant-Applicant Bruce Paynter appealed from a decision of the Zoning

Board of Adjustment (ZBA) of the Town of Pittsford, denying his appeal of the Zoning

Administrator’s denial of his application for zoning permit for a two-lot subdivision.

Appellant represents himself; the Town is represented by David R. Cooper, Esq.

       The parties have each moved for summary judgment; the Town has also moved

for remand of the application to the ZBA, and for declaratory judgment as to which

zoning ordinance is currently in effect. The following facts are undisputed unless

otherwise noted.

       Applicant owns a 0.56-acre lot at 2990 U.S. Route 7, on the east side of Route 7 in

the Village zoning district of the Town of Pittsford. The property consists of two

relatively rectangular areas that overlap at one corner. The westerly side of Applicant’s

property has approximately 115 feet of frontage on Route 7, so that the property

appears as a front lot, joined at its southeast corner to the northwest corner of a back lot,

which is located behind (to the east of) an unrelated property. The front lot already

shows two rights-of-way, one leading to the lot to its north, and one leading easterly

towards the back lot.

       Applicant proposes to divide the property into two lots, but instead of using or

creating a right-of-way over the front lot to the back lot, Applicant proposes to allocate

as part of the back lot a 16-foot-wide strip running along the side lot line of the front lot.


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The proposed front lot (Lot 1) has an area of 10,131 square feet, with approximately 99

feet of frontage on Route 7; the proposed back lot (Lot 2) has an area of 14,271 square

feet, including the 16-foot-wide strip running for approximately 132 feet along the

southerly side line of the proposed front lot, resulting in the back lot’s having 16 feet of

frontage on Route 7.

        On February 27, 2008, Applicant submitted a “Zoning Permit Application –

Subdivision Request” form, applying to subdivide the property into the two proposed

lots. As of the adoption of the 2005 Zoning Regulations,1 the Town of Pittsford did not

have separate subdivision regulations and did not require approval of subdivisions as

such by the Planning Commission. Rather, subdivisions were regulated by § 1117 of the

Zoning Regulations.     Under § 1001, subdivisions require site plan approval to be

obtained from the Planning Commission; otherwise the only permit requirement is that

the subdivision obtain a zoning permit from the Zoning Administrator. § 1302(A);

Article XX, Definitions, “Development.”

       Although Applicant originally submitted his application at the town offices to

the Zoning Administrator on February 27, 2008, the application was not complete until

March 11, 2008, when a site plan was submitted.2 As of at least March 19, 2008,3 the

Zoning Administrator had referred the application to the Planning Commission,




1  All citations are to the Pittsford Zoning Regulations dated December 7, 2005, also
referred to as “the 2005 Bylaws,” unless otherwise noted.
2
   Applicant had originally filed the application with the Town Clerk, and Applicant’s
memorandum stated that it had at that time included a site plan; however, the site plan
was no longer attached to the application by the time it reached the Zoning
Administrator for processing.
3 The referral must have occurred by March 19, 2008, as notice was posted on March 19

for the March 27, 2008 Planning Commission hearing, the agenda for which specifically
included Applicant’s application.
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apparently to assess the effect of the two existing rights-of-way shown on the site plan,4

that also cross the proposed front lot.          Planning Commission hearings on the

application were held on March 27 and April 10, 2008. At the April 10, 2008 meeting,

the Planning Commission determined that the proposed subdivision did not meet the

requirements of the zoning ordinance regarding frontage and/or lot size and referred

the application back to the Zoning Administrator to make that determination on the

application for the zoning permit for the subdivision. The Planning Commission’s

April 10, 2008 decision was not appealed, and became final.

         The Zoning Administrator issued a letter denying the application on April 15,

2008.5     On appeal, the ZBA affirmed the Zoning Administrator’s denial of the

application, based on the lack of the requisite frontage for Lot 2, or, in the alternative,

the requisite size of Lot 2, and this appeal followed.



Motion to Remand

         The Town has moved to remand the application to the ZBA, on the basis that the

zoning bylaws under which Applicant's application was considered, the 2005 Bylaws,

were not valid when adopted, due to the lack of a municipal plan. The Town argues

that the ZBA must reconsider the application under the 1989 version of the zoning

ordinance in the first instance.


4 On the application form, the Zoning Administrator had checked the box marked
“Other” rather than that marked “Site Plan Review,” as her reason for referring the
application to the Planning Commission. The ZBA’s written decision in the present
appeal reflects that the Zoning Administrator had referred the application to the
Planning Commission because the site plan showed two rights-of-way over the
property.
5
  Appellant does not dispute that the Zoning Administrator issued the denial letter on
April 15, 2008; the letter is internally dated April 15, 2008. The Zoning Administrator
subsequently signed the “Zoning Permit Application – Subdivision Request” form on
April 21, 2008.
                                             3
       The Town’s authority to adopt a zoning ordinance (zoning bylaws) to regulate

land development is granted by state statute. See Town of Westford v. Kilburn, 131 Vt.

120, 123 (1973). Specifically, 24 V.S.A. § 4401 authorizes “[a]ny municipality that has

adopted and has in effect a plan” to “implement the plan by adopting, amending or

enforcing any or all of the regulatory and nonregulatory tools provided for in this

chapter” (emphasis added). “Plan” is defined in 24 V.S.A. § 4303(18) as a “municipal

plan adopted under section 4385 of this title.”

       Zoning bylaws, site plan bylaws, and subdivision bylaws are among the

regulatory tools a municipality is specifically authorized to adopt, amend, or enforce.

24 V.S.A. §§ 4402(1)–(3). A municipality “that has adopted a plan” is granted broad

authority to “regulate land development in any manner that the municipality

establishes in its bylaws, provided those bylaws are in conformance with the plan.” 24

V.S.A. § 4410; see also 24 V.S.A. §§ 4411(a) (authorizing municipalities to use zoning

bylaws to “regulate land development in conformance with its adopted municipal

plan”); 4414 (authorizing municipalities to adopt certain types of zoning regulations “in

conformance with the plan”).

       The plain meaning of these statutory provisions, as well as their interpretation as

a whole, is that zoning bylaws are a regulatory tool used to implement and enforce the

municipal plan, and may only be adopted if a plan is in effect. 24 V.S.A. §§ 4401,

4402(1); see Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225–26 (1979) (explaining

relationship between zoning regulations and municipal plans); see also Wright v.

Bradley, 2006 VT 100, ¶ 7, 180 Vt. 383 (citing In re Estate of Cote, 2004 VT 17, ¶ 10, 176

Vt. 293) (explaining that statutes should be interpreted as a whole in order to give effect

to every part). These statutory provisions mandate that prior adoption of a municipal

plan is a prerequisite to adoption of a zoning ordinance. See 24 V.S.A. §§ 4401, 4410.

       The purpose of a municipal plan, and the procedures for adopting one, are found

in 24 V.S.A. §§ 4381–4387. Section 4385 describes the process necessary for adopting a
                                            4
municipal plan. Section 4387 deals with readoption of municipal plans, and subsection

(a) provides that “[a]ll plans, including all prior amendments, shall expire every five

years unless they are readopted according to the procedures in section 4385 of this

title.” When a plan expires, “all bylaws . . . then in effect shall remain in effect, but shall

not be amended until a plan is in effect.” § 4387(c) (emphasis added).

       The Town of Pittsford adopted a municipal plan on September 6, 2000 (the 2000

Town Plan). Under 24 V.S.A. § 4387(a), this plan expired as of September 7, 2005, as it

was not readopted under § 4385. No municipal plan was in effect until a new plan was

adopted in 2007. The lack of a municipal plan left the Town without authority to

amend any bylaws from the expiration of the 2000 Town Plan in September of 2005,

until August 22, 2007, when a new municipal plan was adopted. 24 V.S.A. § 4387(c).

       On December 7, 2005, the Town ostensibly adopted the 2005 Bylaws; however,

because this adoption occurred during the period when no municipal plan was in effect,

the Town’s purported adoption of the 2005 Bylaws was prohibited by state statute, and

therefore did not take effect. 24 V.S.A. § 4387(c). Rather, under the plain language of

§ 4387(c), the bylaws then in effect remained in effect until a new plan would have been

adopted and be “in effect.”

       Applicant does not contest that the 2005 Bylaws were not properly enacted

because of the lack of a municipal plan in effect at the time of their adoption. Applicant

argues, however, that any challenges to the validity of the 2005 Bylaws are barred by 24

V.S.A. § 4483(b), which provides that “[n]o person shall challenge for purported

procedural defects the validity of any plan or bylaw as adopted, amended, or repealed

under this chapter after two years following the day on which it would have taken

effect if no defect had occurred.” It has been more than two years since the purported

effective date of the 2005 Bylaws.

       By its plain language, 24 V.S.A. § 4483(b) only applies to procedural defects.

Procedural defects are defects in the process required to adopt a zoning ordinance, such
                                              5
as failure to post notice for a public hearing on the proposed bylaws as required by 24

V.S.A. §§ 4442(a) and 4444, or defects in the report prepared by the planning

commission as required by 24 V.S.A. § 4441(c). See 24 V.S.A. §§ 4441, 4442, and 4444,

e.g., In re Cottrell, 158 Vt. 500, 508 (1992) (characterizing failures to engage in the

processes required by § 4441’s predecessor6 as “procedural defects”).

      By contrast, the 2005 Bylaws were never effectively adopted, because the Town

lacked authority to amend its zoning bylaws at the time they were purportedly

adopted. The defect was a substantive lack of statutory authority, not a procedural

defect, making § 4483(b) inapplicable.

      A municipality’s very authority to regulate land development through the

adoption of zoning bylaws is conditioned upon the existence of an effective municipal

plan. The plain language of 24 V.S.A. § 4401 makes it clear that only a municipality that

“has adopted and has in effect a plan” is authorized to adopt any of the regulatory tools

listed in § 4402 (emphasis added). As the purpose of the bylaws is to implement the

plan, there must be a plan to implement before bylaws can be enacted. In any event,

after a plan has expired, § 4387(c) explicitly precludes the amendment of any bylaws

until a new plan has been adopted. Accordingly, based on the foregoing, the Town’s

Motion to Remand is GRANTED.



      Because the 2005 Bylaws are not applicable, Question 1, asking for interpretation

of the terms “lot frontage” and “street frontage” as used in those bylaws, has become

moot. Accordingly, both parties’ motions for summary judgment on Question 1 are

DENIED as MOOT.




624 V.S.A. § 4403, repealed and recodified in substantially the same format at 24 V.S.A.
§ 4441. See 2003, No. 115 (Adj. Sess.).
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Deemed Approval

       Applicant argues that his application should be considered to have been

approved by operation of 24 V.S.A. § 4448(d), which states that “[i]f the administrative

officer fails to act with regard to a complete application for a permit within 30 days,

whether by issuing a decision or by making a referral7 to the appropriate municipal

panel, a permit shall be deemed issued on the 31st day” (emphasis added).

       Applicant’s application form was submitted on February 27, 2008, but was not

complete until the site plan was submitted on March 11, 2008.             Under the plain

language of 24 V.S.A. § 4448(d), the deemed approval period begins when the

application is complete. See State v. Stell, 2007 VT 106, ¶ 12, 182 Vt. 368 (explaining that

in interpreting statutes, courts look first to the plain language); e.g. In re Trahan, 2008

VT 90, ¶ 7 n. 6 (explaining that time period for deemed approval begins to run when

application is complete).

       The plain language of the statute also provides that the action of the

administrative officer that concludes the calculated time period is either the issuance of

the decision, or the officer’s referral of the application to the ZBA, Planning

Commission, or Development Review Board.8 See State v. Stell, 2007 VT 106, ¶ 12; e.g.

In re Trahan, 2008 VT 90, ¶ 16. In the present appeal, the complete application was

before the Zoning Administrator for no more than eight days before she referred it to

the Planning Commission.9 Applicant argues that the Zoning Administrator should not


7  The referral language in § 4448(d) clarifies the referral issue as discussed in Wesco,
Inc. v. City of Montpelier, 169 Vt. 520, 526-27 (1999).
8
   The term “appropriate municipal panel” is used in the statute in the sense of
whichever of the three bodies (zoning board of adjustment, planning commission, or
development review board) performs the relevant functions in a particular
municipality. 24 V.S.A. § 4303(3).
9 A good faith error in referring an application to the wrong municipal panel would not

result in deemed approval in the absence of protracted deliberations and indecision. Cf.
In re Trahan, 2008 VT 90, ¶ 12. Since the exact date on which the Zoning Administrator
                                             7
have referred the matter to the Planning Commission; however, even if the referral was

in error, the deemed approval period is tolled simply by the act of referral. In any

event, all subdivisions require site plan review by the Planning Commission under

§ 1001, and the Zoning Administrator is obligated by statute to “administer the bylaws

literally.” 24 V.S.A. § 4448(a).

       On April 10, 2008, the Planning Commission determined that the application did

not comply with the bylaws, and referred the application back to the Zoning

Administrator. The Zoning Administrator issued her denial letter on April 15, 2008;

only five days elapsed between the date on which the application was referred back to

the Zoning Administrator and the date on which she issued her decision.

       Each period during which the application was in the hands of the Zoning

Administrator, before she referred it to the Planning Commission, in the first instance,

or issued her decision, in the second instance, was well within the thirty-day time limit

established by 24 V.S.A. § 4448(d). Even if the two periods were to be added together,

the application was only before the Zoning Administrator for a total of 13 days, which

does not exceed the thirty-day time limit.

       In any event, granting deemed approval in this case would be inconsistent with

the purpose of the remedy, which is to “‘curtail indecision and protracted

deliberations.’”   In re Trahan, 2008 VT 90, ¶ 12 (quoting Wesco, Inc. v. City of

Montpelier, 169 Vt. 520, 526-27 (1999)). Because deemed approval can operate so as to

grant permits that are wholly inconsistent with the zoning ordinance, courts must be

careful to apply the remedy only when doing so would be consistent with this purpose.

Id. (citing In re Fish, 150 Vt. 462, 464 (1988)). In the present appeal, there were no

protracted deliberations or indecision; the Zoning Administrator promptly referred the


referred the application to the Planning Commission has not been provided to the
Court, the Court has used the date on which notice for the Planning Commission
hearing on the application was posted: March 19, 2008.
                                             8
application to the Planning Commission, and then promptly denied the application

after the Planning Commission referred it back to her. Accordingly, Applicant’s Second

Motion for Summary Judgment on the issue of deemed approval is DENIED.



Motion for Declaratory Judgment

       The Town has also moved for declaratory judgment on the issue of which zoning

ordinance should apply to future applications for permits, or to this application on

remand. Because the 2005 Bylaws did not take effect, the Town requests the Court to

determine whether the amendment of the bylaws in 2008 (after adoption of a Town

Plan) did take effect, and, if so, whether it only had the effect of amending the 1989

ordinance, or had the effect of re-adopting as well as amending the 2005 Bylaws.

       The Declaratory Judgment Act, 12 V.S.A. §§ 4711–4725, authorizes the

enumerated courts “to declare rights, status and other legal relations whether or not

further relief is or could be claimed.” Although the Environmental Court’s statutory

authority does not provide for a declaratory judgment action brought as an

independent action, see Price v. Leland, 149 Vt. 518, 519 (1988) (citing V.R.C.P. 57), the

Environmental Court does have authority to entertain motions for summary judgment.

V.R.C.P. 56 (made applicable by V.R.E.C.P. 5(a)(2)). As V.R.C.P. 56(a) contemplates

motions for summary judgment by parties seeking “to obtain a declaratory judgment,”

a motion for declaratory judgment filed in a pending appeal may be treated as a motion

for summary judgment “seeking a declaration of the rights of the parties” under

V.R.C.P. 56. Price, 149 Vt. at 520.

       However, “[d]eclaratory relief is available only when there is an actual or

justiciable underlying controversy; otherwise, ‘a declaratory judgment is merely an

advisory opinion which we lack the constitutional authority to render.’”         Hunters,

Anglers & Trappers Ass’n of Vt., Inc. v. Winooski Valley Park Dist., 2006 VT 82, ¶ 18,

181 Vt. 12 (quoting Doria v. Univ. of Vt., 156 Vt. 114, 117 (1991)).
                                              9
      In the present appeal, there is no actual or justiciable controversy between the

parties that could be resolved by the declaratory relief sought by the Town. The only

issues before the Court in the present appeal relate to the Zoning Administrator’s denial

of Applicant’s March 2008 application for a subdivision permit, which was submitted

before the 2008 zoning amendments were noticed for public hearing in June 2008. As

such, the 2008 zoning amendments are not applicable to the application at issue in the

present appeal, whether or not those amendments revived the 2005 Bylaws. See 24

V.S.A. § 4449(d).

      The Court has concluded the issues raised by the present appeal. It is up to the

ZBA, in the first instance, to determine which ordinance is applicable to the application

during its reconsideration, or whether to allow Applicant to submit an application

under the 2008 zoning amendments. The Town’s motion for declaratory relief seeks an

entirely advisory opinion and is DENIED on that basis.



      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellant’s Motion for Summary Judgment on the issue of deemed approval is

DENIED, the Town’s Motion for a Declaratory Judgment is DENIED as requesting an

impermissible advisory opinion, the Cross-Motions for Summary Judgment are

otherwise DENIED as Moot, and the Town’s Motion for Remand is GRANTED,

concluding this appeal.



      Done at Berlin, Vermont, this 1st day of May, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge

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