In re Castleton Expansion Renovation Permit ( 2014 )

  • Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
                                               ENTRY ORDER
                               SUPREME COURT DOCKET NO. 2014-193
                                          DECEMBER TERM, 2014
     In re Castleton Expansion Renovation Permit           }    APPEALED FROM:
                                                           }    Superior Court,
                                                           }    Environmental Division
                                                           }    DOCKET NO. 129-9-13 Vtec
                                                                Trial Judge: Thomas S. Durkin
                              In the above-entitled cause, the Clerk will enter:
           Town of Castleton resident Graham Trudo appeals a decision by the Superior Court,
    Environmental Division, dismissing for lack of standing his appeal of the town development
    review board’s (DRB) determination that proposed alterations to the Town Office Building did
    not require a zoning permit. We affirm.
            On November 6, 2012, town voters approved the issuance of bonds for the purpose of
    renovating the Town Office Building. On August 29, 2013, the DRB determined that no zoning
    permit was required for alterations to the building because the alterations were exempted as
    essential services under the zoning ordinance. Mr. Trudo appealed that decision to the
    environmental court, which granted the Town’s motion to dismiss the appeal based on Mr.
    Trudo’s lack of standing. The court determined that Mr. Trudo did not have standing because he
    was not an “interested person” under the definitions set forth in 24 V.S.A. § 4465(b). Mr. Trudo
    appeals to this Court, arguing that he is an interested party with standing to challenge the DRB
    decision. The Town has not filed an appellee’s brief on the merits of the environmental court’s
    standing ruling, but rather has moved this Court to dismiss the appeal as moot, arguing that there
    is no longer a justiciable controversy, given a more recent town vote in which voters have
    rejected the issuance of bonds for the proposed renovation of the Town Office Building.*
            As a preliminary matter, we deny the Town’s motion to dismiss this appeal as moot.
    Renovation of the Town Office Building may in fact be on hold as the result of a January 28,
    2014 vote in which town voters rejected an article asking them to approve the issuance of bonds
    for the renovation. But currently in place is the DRB’s ruling that the Town does not need a
    zoning permit to renovate that building. Dismissal of this appeal as moot would leave
    undisturbed the environmental court’s decision that Mr. Trudo lacks standing to challenge the
    DRB ruling; thus, if town voters later approve renovation of the Town Office Building, the Town
    could claim the right to proceed with the renovation without a permit based on these past rulings.
    Given these circumstances, we conclude that the appeal is not moot. Paige v. State, 2013 VT
              The Town states that a second vote on the proposed project was held after the bond
    attorney determined that the first warning and vote would not satisfy the legal requirements of
    the bonding company.
    105, ¶ 8, 
    195 Vt. 302
     (stating that appeal is not moot if it involves either a live controversy or the
    parties have “a legally cognizable interest in the outcome of the case throughout the entire
    proceeding” (quotation omitted)).
            Turning to the merits of the appeal, we uphold the environmental court’s decision. “An
    interested person who has participated in a municipal regulatory proceeding authorized under
    [Title 24] may appeal a decision rendered in that proceeding by an appropriate municipal panel
    to the Environmental Division.” 24 V.S.A. § 4471(a); see also 10 V.S.A. § 8504(b) (“[A]n
    interested person, as defined in 24 V.S.A. § 4465, who has participated as defined in 24 V.S.A.
    § 4471 in the municipal regulatory proceeding under that chapter may appeal to the
    Environmental Division an act or decision made under that chapter by . . . a development review
    board; . . .”). An “interested person” is defined as any one of the following:
                    (1) A person owning title to property . . . affected by a bylaw,
                   who alleges that the bylaw imposes on the property unreasonable
                   or inappropriate restrictions of present or potential use under the
                   particular circumstances of the case.
                    (2) The municipality that has a plan or a bylaw at issue in an
                   appeal . . . or any municipality that adjoins that municipality.
                    (3) A person owning or occupying property in the immediate
                   neighborhood of a property that is the subject of any decision or
                   act taken under this chapter, who can demonstrate a physical or
                   environmental impact on the person’s interest under the criteria
                   reviewed, and who alleges that the decision or act, if confirmed,
                   will not be in accord with the policies, purposes, or terms of the
                   plan or bylaw of that municipality.
                    (4) Any ten persons who may be a combination of voters or real
                   property owners within a municipality listed in subdivision (2) of
                   this subsection who, by signed petition, . . . allege that any relief
                   requested by a person under this title, if granted, will not be in
                   accord with the policies, purposes, or terms of the plan or bylaw of
                   that municipality. . . .
                    (5) Any department and administrative subdivision of this state
                   owning property or any interest in property listed in subdivision (2)
                   of this subsection, and the agency of commerce and community
                   development of this state.
    24 V.S.A. § 4465(b).
           As the environmental court explained it its decision, Mr. Trudo does not fit within any of
    these categories. Subsection one is not satisfied simply because the subject property is a town
    building and Mr. Trudo is a town resident and taxpayer. The Town is the owner of the subject
    property; Mr. Trudo’s status as a town taxpayer does not make him a title owner of town
    property. Plainly, he does not own title to property on which he is claiming the imposition of
    inappropriate use restrictions. By the same token, neither does his status as town resident and
    taxpayer make him a “municipality” under subsection two. As for subsection three, the
    environmental court found it undisputed that Mr. Trudo’s residence is more than three miles
    from the Town Office Building. This distance cannot be considered “in the immediate
    neighborhood” of the subject property, at least under the circumstances of this case. In any
    event, Mr. Trudo has not alleged that he “can demonstrate a physical or environmental impact”
    on his interest under the criteria reviewed. Further, as the environmental court stated, Mr.
    Trudo’s alleged status as a trustee of a commercial building across the street from the Town
    Office Building does not qualify him as owning or occupying property in the immediate
    neighborhood of the subject property. The court found that Mr. Trudo appealed the DRB
    decision solely in his individual capacity and that he has not alleged that the commercial entity
    itself appealed the DRB decision or that any such entity designated him as its spokesperson for
    doing so. Mr. Trudo does not suggest that subsections four or five of § 4465(b) apply in this
             Mr. Trudo’s principal argument is that any taxpayer such as himself who is a legal town
    voter and has attended meetings and voiced his opinions as an interested person should be able to
    appeal a DRB ruling concerning a building that is the town office for the entire Town and all of
    its residents. As a town resident, Mr. Trudo had an opportunity to vote on the proposed issuance
    of bonds to renovate the Town Office Building. At issue here, however, is not a political
    decision by town voters concerning the expenditure of town funds supplied at least in part by
    town taxpayers, but rather a zoning decision that can be appealed only by interested persons as
    defined by statutory criteria that Mr. Trudo cannot meet here.
                                                   BY THE COURT:
                                                   Marilyn S. Skoglund, Associate Justice
                                                   Beth Robinson, Associate Justice
                                                   Harold E. Eaton, Jr., Associate Justice

Document Info

DocketNumber: 2014-193

Filed Date: 12/12/2014

Precedential Status: Non-Precedential

Modified Date: 10/17/2015