                                  STATE OF VERMONT
                                ENVIRONMENTAL COURT

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Appeal of Hardy                              }                       Docket No. 157-9-04Vtec
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             Decision and Order on the Town’s Motion for Summary Judgment


        Appellant John Cito Hardy appealed from a decision of the Zoning Board of Adjustment
(ZBA) of the Town of Plainfield dated July 6, 2004, upholding the Zoning Administrator‟s
decision to deny Appellant a zoning permit for an addition to his existing garage. Appellant
represents himself; the Town of Plainfield (Town) is represented by Paul S. Gillies, Esq. This
matter is before the Court on the Town‟s Motion for Summary Judgment.

                                     Factual Background

        The following facts are undisputed unless otherwise noted.
        1. Appellant owns two parcels of improved land on both sides of Brook Road in the
Town of Plainfield: an 8± acre parcel containing Appellant‟s home lies on the westerly side of
Brook Road, and a 2.2± acre parcel containing Appellant‟s existing 26' x 50' garage lies on the
easterly side of Brook Road.
        2. The garage on the easterly side of Brook Road was built in 1980 on what was then a
65± acre parcel owned by Applicant‟s father, John R. Hardy. This 65± acre parcel included what
would eventually become the Applicant‟s two parcels, referenced above.
        3. Appellant originally received title to 10.2± acres by Warranty Deed from Appellant‟s
parents, John R. Hardy and Kathleen M. Hardy to Appellant, in his sole name, on November 30,
1987.
        4. The two parcels first became held in separate names when Appellant conveyed the 8-
acre parcel on the westerly side of Brook Road to himself and his wife, Kathleen G. Hardy, on
August 2, 1988. The 2.2± acre parcel remains in Appellant‟s sole name, purportedly so that the
garage parcel, used in connection with Appellant‟s logging operation, may remain separate from
his family homestead.
       5. At Appellant‟s request, the Town‟s Planning Commission determined on June 6, 1991
that both parcels were located in the Forest and Agricultural Lands zoning district. The Planning
Commission‟s determination was not appealed.
       6. Appellant‟s land has remained in the same zoning district since before the Planning
Commission‟s 1991 decision. See Affidavit of Sarah Albert, Zoning Administrator (Town
Attachment 5).
       7. In 1992, Appellant applied to the zoning administrator for a zoning permit to construct
a 26‟ x 50‟ addition to the existing garage on the 2.2± acre parcel. The Zoning Administrator
issued the permit to Appellant.
       8. The Planning Commission appealed the Zoning Administrator‟s 1992 issuance of the
Appellant‟s permit to the ZBA. The ZBA held hearings and ultimately reversed the Zoning
Administrator‟s decision, on the basis that the 2.2± acre lot did not conform to the zoning
regulations, specifically because the minimum lot size in the Forest and Agricultural Lands
zoning district is five acres. Zoning Regulations § 4.3. The ZBA decision was not appealed.
       9. On May 19, 2004, Appellant again applied to the Zoning Administrator for a zoning
permit to construct a 26' x 50' addition to his existing garage. The Zoning Administrator denied
Appellant‟s application on May 28, 2004, citing the 1992 ZBA decision.
       10. Appellant appealed the Zoning Administrator‟s denial to the ZBA. The ZBA upheld
the Zoning Administrator‟s decision to deny Appellant‟s zoning permit application. On
September 2, 2004, Appellant appealed from the ZBA decision to this Court.
       11. The Town moved for summary judgment on all issues raised in Appellant‟s
Statement of Questions. Appellant submitted a memorandum in opposition to the Town‟s
motion.
                                            Discussion

       One of the primary questions in this appeal, and one of the initial questions addressed by
the Town‟s Motion, is identifying in what zoning district Appellant‟s parcels are located.
Appellant provided the Court with a considerable amount of historical documentation on
possible changes to Plainfield‟s zoning districts, although it does not appear that Appellant
disputes the Town‟s assertion that for all times material to Appellant‟s applications for an
amended zoning permit, his parcels were located in the Forest and Agricultural Lands zoning
district. See Affidavit of Sarah Albert, Plainfield Zoning Administrator (Town‟s Attachment
#5).
        Confusion as to what zoning provisions control can sometimes arise, particularly when a
property owner applies for a permit to add to a pre-existing structure. This appeal provides some
real examples of what can cause this confusion: the applicable zoning district may change
between the time of the original permit and the application for amendment; the configuration of
the parcel where the pre-existing buildings lie may change; or the size of the parcel may change,
as a consequence of one or more transfers, including reducing the size of the parcel to below the
minimum lot size for the current zoning district.
        To help minimize that confusion, we look to the application that is the subject of the
pending appeal. From this starting point, we can determine what zoning provisions control the
pending appeal, under the basic premise that the zoning provisions that apply are those that are in
effect “when a „proper‟ [i.e. complete] application is filed.” In re Champlain Oil Company, 2004
VT 44, ¶11, citing Smith v. Winhall Planning Comm‟n, 140 Vt. 178,181-182 (1981).
        Appellant filed the application now before this Court on May 19, 2004, requesting that he
be permitted to construct a 26‟ by 50‟ addition to the existing garage on his 2.2± acre parcel.
The zoning regulations, including zoning districts, which control the appeal now before this
Court therefore must be the regulations in effect as of May 19, 2004. It appears undisputed that
Appellant‟s 2.2± acre parcel was within the Forest and Agricultural Lands zoning district as of
May 19, 2004.
        The Town also correctly points out that a previous, unappealed decision of the Plainfield
Planning Commission addressed the very issue of what zoning district applied to Appellant‟s
garage parcel. Upon Appellant‟s request, the Planning Commission determined on June 6, 1991
that Appellant‟s property was located in the Forest and Agricultural Lands zoning district.
Appellant does not dispute that he did not appeal the Planning Commission‟s 1991
determination. Nor does Appellant dispute, as stated above, the Town's assertion that the zoning
districts have not changed since before the Planning Commission‟s 1991 decision. It therefore
appears that the Planning Commission‟s 1991 determination should be afforded considerable
weight on this issue. In fact, the doctrine of finality requires it.
        The legislature has made the doctrine of finality applicable to municipal decisions
through 24 V.S.A. § 4472, which states that “the exclusive remedy of an interested person with
respect to any decision . . . [from an appropriate municipal panel] shall be the appeal to . . . the
environmental court.” 24 V.S.A. § 4472(a). Appeals from a municipal decision must be taken
within 30 days of that decision. Vt. Rules for Envtl. Ct. Proceedings 5(b)(1). In the absence
of a timely appeal, interested persons are bound by the decision of the
municipal panel, and they "shall not thereafter contest, either directly or
indirectly, such decision . . . in any proceeding." 24 V.S.A. § 4472(d); In re
Ashline, 175 Vt. 203, 206 (2003).
       Our Supreme Court has repeatedly instructed that the exclusivity of remedy provision
contained in 24 V.S.A. § 4472 be strictly construed. See In re Appeal of Tekram Partners, et. al.,
2005 VT 92, ¶8, citing City of S. Burlington v. Dep‟t of Corr., 171 Vt. 587, 588 (2000)(mem.);
see also Town of Sandgate v. Colehamer, 156 Vt. 77, 84 (1990). We have been advised that
“the broad and unmistakable language of [the exclusivity of remedy]
provision is designed to prevent any kind of [subsequent] collateral attack
on a zoning decision that has not been properly appealed through the
mechanisms provided by the municipal planning and development statutes.”
City of S. Burlington, supra, at 588-89.
       Therefore, based on the exclusivity of remedy provision, the 1991 Planning Commission
decision became final and cannot be assailed, except for the narrow exception provided for in
24 V.S.A. § 4472, relating to the facial unconstitutionality of a zoning regulation. See 24 V.S.A.
§ 4472(b).
       Appellant counters that the 1991 Planning Commission decision did not apprise him of
his right to appeal that decision, and cites Randolph v. White, 166 Vt. 280 (1990), for support of
his argument that this Court should ignore the 1991 decision. That case stands for the
proposition that in the context of a notice of zoning violation, due process requires that the notice
appraise the alleged violator of certain information. But the Randolph v. White precedent does
not broaden that narrow exception to the doctrine of finality found in 24 V.S.A. § 4472 for
challenges to the constitutionality of a zoning regulation. See 24 V.S.A. § 4472(b).
       In the present case, while the Court sympathizes with Appellant, due to the circumstances
surrounding the historical use of his property, we nonetheless find his argument to be unavailing.
Appellant does not challenge the constitutionality of any bylaw. Therefore, the exclusivity of
remedy provision applies and Appellant is barred from revisiting the issue of whether the 2.2±
acre parcel is located in the Forest and Agricultural Lands zoning district. Thus, summary
judgment in favor of the Town on Appellant‟s Question #2 is appropriate.
        We now turn to the question of whether the zoning regulations applicable to Appellant‟s
2.2± acre garage parcel allow for Appellant‟s proposed garage addition. The primary
determination on this issue, as Appellant correctly points out in his Question #1, is whether the
2.2± acre garage parcel may be regarded as a separate lot.
        The Town argues that Appellant‟s 2.2± acre garage parcel is a separate lot and therefore
does not meet the applicable 5 acre minimum lot size for this zoning district. The Town relies
upon the Vermont Supreme Court‟s holding in Wilcox v. Manchester ZBA, 159 Vt. 193 (1992),
which established that a town highway serves as a natural subdivision. Id. at 197. While the
Town correctly states the import of Wilcox, we need not rely solely on its precedent in this
appeal because Appellant, by his own actions, is responsible for the division of his property.
        On August 2, 1988, Appellant subdivided1[*] the 10.8± acres he originally received from
his parents by conveying the 8-acre parcel on the westerly side of Brook Road to himself and his
wife, thereby leaving the 2.2± acre parcel on the easterly side of Brook Road titled in his sole
name. The ZBA made that very determination in its 1992 rejection of Appellant‟s original
application for a permit to add on to his garage. The ZBA decision was not appealed, and
therefore became final. The doctrine of finality discussed in more detail above is controlling
here as well.
        Appellant‟s Question 3 asks whether Appellant is able to sell the 2.2± acre parcel
separately. This question is not answerable in the context of the zoning appeal presently before
the Court. In fact, this question appears to be outside the Court‟s jurisdiction. Therefore,
summary judgment in favor of the Town on Question 3 is appropriate.
        Question 4 asks why the Town has not addressed “this issue” in over ten years. This
question is not relevant to the zoning appeal presently before the Court. It appears that this
question is also not within this Court‟s jurisdiction. Therefore, summary judgment in favor of
the Town is appropriate.



1[*]
   The record does not reveal whether Appellant applied for or received a subdivision permit at the time of this
conveyance, nor does the record disclose whether Appellant or any of his predecessors in title requested that the
Town acknowledge the separateness of the 8± parcel, by virtue of its division from the remaining land by Broad
Brook Road. We leave such an acknowledgement request to Appellant to make, in light of the Wilcox precedent.
       Question 5 asks whether Appellant‟s 2.2± acre parcel is non-conforming because of its
size. In light of the discussion above, it appears indisputable that the answer to this question is
“yes”. Further, the ZBA addressed this issue previously in connection with Appellant‟s 1992
zoning permit application. In fact, the ZBA‟s determination that Appellant‟s 2.2± acre parcel
was non-conforming was the specific ground upon which the ZBA reversed the Zoning
Administrator‟s issuance of a zoning permit. Again, the ZBA decision was not appealed, and
therefore became final. Appellant is barred from raising this issue in the present appeal.
Therefore, summary judgment in favor of the Town is appropriate on Question 5.
       Lastly, Appellant argues in his answer to the Town‟s Motion for Summary Judgment that
his 2.2± acre parcel should be granted a variance. However, an application for a variance is not
presently before the Court. The Court therefore cannot address such an application in this
appeal. Appellant may apply for a variance, but that application must initially be made to the
ZBA.


       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the
Town‟s Motion for Summary Judgment is GRANTED as to all pending questions, thereby
concluding this appeal. Nothing contained herein shall preclude Appellant from submitting a
subdivision or variance application to the appropriate Plainfield municipal panel.


       Done at Berlin, Vermont, this 23rd day of August, 2005.



                                               _____________________________________
                                                 Thomas S. Durkin, Environmental Judge
