Paynter 2-Lot Subdivision ( 2009 )

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