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.

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 Thomas S. Durkin, Environmental Judge