Appeal of Marc and Susan Wood ( 2004 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Marc and Susan }
Wood }
} Docket No. 121-7-03 Vtec
}
}
Decision and Order on Cross-Motions for Summary Judgment
Appellants Marc and Susan Wood appealed from a June 16, 2003 decision of the Zoning Board
of Adjustment (ZBA) of the Town of Hartford, upholding the Zoning Administrative Officer= s
decision not to accept Appellants= application to amend Zoning Permit #99-11801 and its
associated site plans for the so-called Phase II of their development. Appellants represent
themselves; the Town is represented by William F. Ellis, Esq.
The parties have moved for summary judgment on issues relating to the expiration date of the
permit sought to be amended, and what regulations apply to the amendment application. The
following facts are undisputed unless otherwise noted.
Appellants propose the development of a diner, private club, gas station, and convenience store
on their property in the Town of Hartford. The property is located between Maple Street (Route
14) at a higher elevation and Ferry Boat Crossing (formerly Alber Drive) at a substantially lower
elevation. Because of the difference in elevation, Appellants proposed to create a concrete slab
retaining wall and to place fill to increase the area of land at the higher elevation and to stabilize
the slope or bank. Appellants obtained zoning permits for the project (see footnote 1).
Section 1-4.3 of the Zoning Regulations requires the work authorized by a zoning permit to be
started within six months and to be completed within two years of the permit= s issuance date.
Failure to meet these time deadlines requires that the applicant apply for a new permit for any
remaining work, and that the new permit is to be decided under the regulations in effect at the
time of the new permit application. Section 1-4.3 further allows the Planning Commission to
issue a one-time six-month extension to either or both time periods (the start date and the
completion date).
The permit for Phase III, #99-1215, does not appear to be at issue in the present appeal. Its
effective date appears to have been September 2, 1999, so that absent any extensions it would
have expired on September 2, 2001. Appellants appealed in Docket No. 37-2-00 Vtec from the
Planning Commission= s site plan approval for Phase III, and in Docket No. 102-5-00 Vtec from
the ZBA= s decision to uphold the Zoning Administrator= s denial of a building permit for Phase
III. These two appeals were dismissed as moot in the fall of 2001.
The effective date for Permit #99-1180, for Phase II, was October 16, 1999. Absent any
extensions, it would have expired on October 16, 2001. Among other requirements, Permit #99-
1180 required Appellants= engineer to certify that the concrete slab retaining wall was
constructed in accordance with the approved plans.
On June 11, 20012, the ZBA granted Appellants a six-month extension of the completion date for
one of the zoning permits. If this extension were applicable to Phase II (Permit #99-1180), its
completion date would have expired on April 16, 2002, absent any issues regarding its being
stayed due to the pendency of litigation.
In early 2000, Appellants began the construction of the retaining wall or at least the stockpiling
of concrete slabs on the lower elevation portion of the property, as the slab segments became
available from ongoing highway bridge improvement projects. The Zoning Administrative
Officer issued a Notice of Violation on February 4, 2000, alleging that the slabs were not being
placed in the location authorized by the zoning permit and that the placement of the slabs was
not in conformance with the approved Phase II plans.
Appellants appealed the Notice of Violation (Docket No. 91-5-00 Vtec) and the Town brought
an enforcement action (Docket No. 72-3-00 Vtec). These two Environmental Court cases were
consolidated for trial with a related Windsor Superior Court case3, in which the Town alleged
that Appellants created a public nuisance by clearing the slope and stacking the slabs on the
property (Docket No. 219-5-00 WnCv).
During the very early pendency of that litigation, before the consolidation, on April 28, 2000,
Judge Wright heard a motion for preliminary injunction, and took a site visit with the parties. At
the site visit, Judge Wright issued an oral order governing the work on the site over the weekend
of April 29-30, 2000, allowing Appellants to re-stack the concrete slabs at the westerly end of the
site, and allowing only such work on the embankment as necessary to render it more stable
during those two days. On May 1, 2000, the Environmental Court issued a written order in
Docket Nos. 72-3-00 Vtec and 91-5-00 Vtec, denying the Town= s request for a preliminary
injunction, without prejudice, and stating the Court= s expectations that the merits of the litigation
would establish the safety and stability of the stacked slabs and the scope and conditions of the
site plan approval of the project. Together with the transfer and consolidation order, Judge
Cheever in Windsor Superior Court issued an order in Docket No. 219-5-00 Wrcv, orally on the
record on June 14, 2000, and in writing on June 16, 2000, requiring Appellants to stabilize the
pile of slabs and otherwise to stop construction until that litigation was completed or until further
order of the Court.
Those consolidated cases were concluded by a decision issued on September 21, 2001,
concluding that the retaining wall on the Town property did not meet the design specifications as
approved in the permit for Phase II. However, the decision allowed Appellants to apply to the
ZBA for approval of their proposal for Phase II, as an amendment to the previously-approved
plans for Phase II. Appellants appealed that decision to the Vermont Supreme Court, which
affirmed it on May 29, 2002. Town of Hartford v. Marc and Susan Wood, Docket No. 2001-473
(Vt. Supreme Ct., May 29, 2002) (three-justice panel).
Between the date of that decision and the application at issue in the present appeal (filed on April
15, 2003), Appellants assert that they made four earlier attempts to apply for approval of an
amended site plan pursuant to the September 21, 2002 Order. Whether these applications or
attempts to apply were rejected as incomplete or for some other reason, Appellants did not
appeal the Zoning Administrator= s action on those attempts, and therefore those earlier efforts to
apply are not before the Court in the present appeal. 24 V.S.A. ' 4472(a).
Appellants= April 15, 2003, application sought to amend the Phase II permit (Permit #99-11804).
In addition to the changes in the design of the retaining wall, this application proposed changes
to the locations of parking, a curb cut and gas pumps, and changes to the existing diner building.
It also proposed that a building that had been proposed to be removed under the original Phase II
permit would be retained and changed in use to a retail store.
On May 1, 2003, the Zoning Administrator declined to accept Defendants= application to amend,
returning the application as incomplete, and stating that the permit for Phase II had expired. She
also stated that the current application A would not be considered an amendment@ due to the
extent of the proposed changes from the original application.
In their arguments, both parties conflate the issue of whether the expiration time of the old
permits had been stayed due to the pendency of the appeal litigation (under Preseault v. Wheel,
132 Vt. 247 (1974)) with the issue of what regulations would apply to any amendment or new
permit request.
The time for expiration of a valid permit is properly suspended for a period during which delay
in construction is caused by litigation. A permittee does not acquire additional time for
construction if the permit expired prior to the litigation. Rather, the expiration of the permit is
merely suspended during the time the permittee was prevented by the litigation from using the
permit. Preseault v. Wheel, 132 Vt. 247, 253-55 (1974) (permittee allowed to construct under a
one-year zoning permit where the delay in construction beyond the permit expiration date was
attributable to litigation over another permit that was also required prior to construction); In re
Appeal of Meunier, Docket No. 99-285 (Vt. Supreme Ct., Jan. 6, 2000) (three-justice mem.)
(rationale of the Preseault case not applicable if the underlying permit had already expired when
the litigation began).
In the present case, as in Preseault, the delay in construction was caused by the litigation; in fact,
it was ordered by the Court, as of June 14, 2000 (Judge Cheever= s order on the record in Docket
No. 219-5-00 Wrcv). Therefore, once the litigation was concluded as of the date the mandate
issued from the Vermont Supreme Court, Appellants had a right to continue with whatever
construction was authorized by Permit #99-1180, for the amount of time left to them under that
permit. That is, Permit #99-1180 did not expire during the litigation; rather, as of the Supreme
Court= s mandate 21 days after its May 29, 2003, decision, Appellants had some amount of time
remaining to run on Permit #99-1180.
That time period is calculated as follows. Assuming Appellants received a six-month extension
of Permit #99-1180, Appellants had a total of two-and-a-half years (913 days) from October 16,
1999 (the effective date of the permit) to complete the activities authorized under that permit for
their Phase II project. If they did not receive an extension, they had two years (731 days) to
complete the activities authorized under that permit for their Phase II project.
Appellants initially used up approximately eight months (242 days) between October 16, 1999
(the effective date of the permit) and the Windsor Superior Court= s order to cease construction
on June 14, 2000. Construction remained stayed during the litigation, which concluded when the
mandate issued 21 days after the Vermont= s Supreme Court= s decision of May 29, 2002, on June
19, 2002. V.R.A.P. 41(a). Thus, as of June 19, 2002, deducting the initial 242 days Appellants
had used, Appellants had approximately twenty-two-and-a-third months (671 days) remaining on
Permit #99-1180 if it had a two-and-a-half-year duration, or approximately sixteen-and-a-third
months (489 days) if Permit #99-1180 had a two-year duration.
Disregarding any earlier attempts on the part of Appellant to apply to amend Permit #99-1180
(as the determinations on those attempted applications were not appealed), Appellants then used
up an additional 300 days, from June 19, 2002 until filing their application to amend Permit #99-
1180 on April 15, 2003 (which is on appeal in the present case). Thus, Appellants used up a total
of 542 days (approximately eighteen months). If they did wish to proceed with Phase II as
originally permitted, they would have remaining to them just over a year (371 days) if Permit
#99-1180 had a two-and-a-half-year duration, or just over six months (189 days) if it had a two-
year duration.
However, Appellants now propose to construct a project that differs in several respects from
what was authorized by Permit #99-1180. Appellants must apply for an amendment, not because
the old permit had expired, but because what they now want to do is different from what was
authorized under the old permit. As the Court ruled in the earlier litigation, and as the Supreme
Court upheld, Appellants must apply for an amendment to Permit #99-1180 (or for new permits)
to do what they are now requesting to do.
We note that it makes no difference under current law whether the changes in the proposal are
characterized as an amendment to the existing permit or whether they are characterized as an
application for a new permit. In either case, the application is governed by whatever regulations
were in effect (or had been proposed for public hearing) as of the time the amendment
application or new permit application is made. 24 V.S.A. ' 4443(d) (effective July 1, 2001).5
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that both
Motions for Summary Judgment are GRANTED in Part and DENIED in Part, as follows,
concluding this appeal. The permit for Phase II (Permit #99-1180) had not expired as of the time
of Appellants= application to amend it on April 15, 2003, and the Zoning Administrator or
Zoning Board of Adjustment must consider the application to amend, which may include a ruling
on its completeness. However, the zoning regulations applicable to any such permit amendment,
or equally to any new approvals beyond the scope of that permit, are the zoning regulations in
effect or proposed at the time that the application is filed. 24 V.S.A. ' 4443(d) (effective July 1,
2001). Accordingly, this appeal is concluded in this Court, and the June 16, 2003 decision of the
ZBA is hereby VACATED and REMANDED for further action consistent with this decision.
Done at Barre, Vermont, this 19th day of May, 2004.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
In various places in their arguments and in the documents, both parties refer to permits
numbered 99-1180, 99-1181, 99-1210 and 99-1215. These references have created a great deal of
confusion in the matter before the Court, as has Appellants’ use of the terms ‘Phase II’ and
‘Phase III.’ As noted in earlier litigation, Appellants used the terms ‘Phase II’ and ‘Phase III’ to
refer to two alternative plans for their development, not to two successive stages in the
development. From the materials supplied to the Court in connection with the parties’ motions, it
appears that Permit #99-1180 was the permit for Phase II and Permit #99-1215 was the permit
for Phase III, and that neither #99-1181 nor #99-1210 is applicable to this project or this appeal.
2.
Neither of the parties has provided a copy of this ZBA decision or the minutes for this ZBA
meeting. The parties seem to dispute whether this decision granted an extension to the zoning
permit for Phase II (Permit #99-1180, which Appellants also mistakenly refer to as #99-1181, see
footnote 1, above), or to the zoning permit for Phase III (Permit #99-1215), and therefore the
parties may dispute whether any extension was granted for the Phase II permit. The 2003 ZBA
decision on appeal in the present case does refer to an extension’s having been granted for the
completion date of the Phase II project. These disputed facts need not be resolved to resolve the
present motions or the present appeal, but they do affect how much time remained on Permit
#99-1180, which may or may not be of interest to the parties in the future.
3.
The Town also had filed a separate Windsor Superior Court case to determine the scope of
the easement Appellants had over Town property (Docket No. 150-4-00 Wrcv).
4.
The application refers to it as an amendment to Phase II, citing Permit #99-1210, but see
footnote 1 above.
5.
Please note that the amendments to 24 V.S.A. Chapter 117 adopted in the 2004 session (H.
175) carry this provision forward, but it will be re-codified as 24 V.S.A. §4449(d).