VermontSuperiorCourtFiled11/23Washingtonmt

### VERMONTSUPERIOR

### COURTWashingtonUnit65StateStreetMontpelier

### VT05602802—828—2091wwwvermontjudiciaryorg

### CIVILDIVISIONCaseNo.23-CV-01316£3:

## f1inionandOrderonthe

### Town’sMotionto

### Dismiss

### In

### thiscase,the

### Vermont

### Human

### RightsCommission

### (HRC)claims

### thatDefendantthe

### Townof

### St.

### Johnsbury,actingthrough

### itsdevelopment

### reviewboard

### (DRB),discriminated

### againstMs.NicoleStone

### by

### refusingto

### grantzoning

### variance

### permittinganaccessory

### structureconstructed

### withoutpermitand

### inviolationof

### municipalzoning

### regulations.

### The

### HRCclaims

### thatthe

### denialamountsto

### discriminatoryrefusaltoaccommodateMs.Stone’s

### disability

### inViolationofthe

### Vermont

### FairHousingand

### PublicAccommodations

### Act

### (VHPA),

### V.S.A.§§4500—4507.

### The

### HRCmaintains

### thatMs.Stonereliesuponmotorized

### wheelchairfor

### mobilityand

### allegedlyneedstheoutdoorsheltered

### structuretomeet

### withhercaseworkerorother

### caregivers.

### Ms.Stone

### isnot

### partyto

### thiscase.

### The

### HRCbrought

### thisaction,

### pursuantto

### itsstatutoryauthority,

### V.S.A.§§4551—4556,forMs.Stone’sbenefitand

### inthepublic

### interest.See

### V.S.A.4506(c).

### TheTownhas

### filed

### Rule12(b)(1)motionto

### dismissfor

### lackofsubject

### matter

### jurisdiction.

### Itargues

### that

### thisCourt

### lacksjurisdictionoverthe

### VHPAclaimbecausenoonesoughtdenovo

### reviewofthe

### DRB’svariancedenial,

### whichnow

### is

### final,

### inthe

### EnvironmentalDivision.124

### V.S.A.4472.

### Thesubstanceofthe

### HRC’s

### VHPAclaim

### isnot

### atissueat

### thistime.OrderPageof1023—CV—01316VermontHumanRightsCommissionv.TownofSt.johnsburyVermontHumanRightsCommissionV.TownofSt.JohnsburyOrder Page 2 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury The Court has considered the written submissions of the parties as well as their
oral arguments. The Court determines as follows.

I. Procedural Standard
As the Vermont Supreme Court has described, when considering a motion to
dismiss for lack of subject matter jurisdiction, “‘all uncontroverted factual allegations of

the complai nt [are] accepted as true and construed in the light most favorable to the
nonmoving party.’ ‘A court may consider evidence outside the pleadings.’” Mullinnex v.

Menard , 2020 VT 33, ¶ 8, 212 Vt. 432 (citations omitted); see also Conley v. Crisafulli
, 2010 VT 38, ¶ 3, 188 Vt. 11, 14 (court may accept evidence from outs ide the record to

resolve dispute as to jurisdiction). Neither party has sought to expand the record beyond
the allegations of the complaint.

II. Allegations in the Complaint
The HRC alleges as follows. Ms. Stone, a St. Johnsbury resident, is restricted to
ambulating by use of a motorized wheelchair. In the early days of the Covid pandemic,
she or members of her household determined that there was no way for her to meet with
caregivers or case workers in side her home due to insufficient space to safely distance

from each other. To make a safe space for such meetings, a member of her household

constructed an outdoor, sheltered structure that would permit distanced meetings wh ile
protecting the wheelchair from rain and mud, which it cannot tolerate. No zoning permit
had been sought for the structure prior to its construction ; and , in fact, it was built in
violation of a side yard setback under the Town’s zoning bylaws.
A neighbor complained to the Town, bringing the matter to the attention of the
Town’s zoning administrator (ZA). The ZA pointed out the zoning violation to Ms. StoneOrder Page 3 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury or her household members and advised them to seek a variance from the DRB. A
variance, if granted, could have cured the zoning violation and permitted the structure.
The member of the household who constructed the structure sought the variance,

explainin g to the DRB the circumstances that prompted it , including Ms. Stone’s
“disability

- related need for the structure.” Despite that presentation and the request for

the variance on that basis, the DRB denied the request. The c omplaint avers that the

DRB’s decision amounts to discrimination because it was a “denial of a reasonable
accommodation request which would have afforded [Ms. Stone] an equal opportunity to
use and enjoy her dwelling.” 2
No one appealed the DRB’s denial of the variance, which then became final under
24 V.S.A. § 4472. 3 Ms. Stone or household members subsequently complained to the
HRC, which eventually filed this case claiming a VHPA violation.

III. Analysis
The parties agree on most of the fundamental issues that frame the jurisdictional

debate

. Specifically, the DRB is empowered to consider the discriminatory effect of
denying a variance and to grant a variance to avoid that discriminatory effect. See
generally 24 V.S.A. § 4412(1)(A) (barring municipal panels from applying zoning bylaws
so as violate 9 V.S.A. § 4503), § 4469 (zoning variances)

. T he denial could have been

appealed to the Environmental Division
, 24 V.S.A. § 4471, and the Environmental

2 Nothing in the complaint indicates that the structure could not have been moved in compliance with the setback regulation or otherwise that a variance was necessary to accommodate Ms. Stone’s disability. For purposes of this decision, the Court presumes that was
, at least
, arguably the case.

3 The record implies that the Town thus far has not taken any enforcement action to cure the violation.Order Page 4 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury Divisio n, likewise, is authorized to analyze the d iscriminatory effect of denying a
variance application as necessary to avoid any such discrimination. See In re Union

Bank , No. 299

- 12

- 06 V tec , 2007 WL 6970402 (Vt. Envtl. Ct. Dec. 5, 2007) (Durkin, J.)
(“ Where the application of municipal zoning regulations is the direct source of

discrimination against a disabled person [under the ADA] , the appropriate municipal
panel in the first instance, and this Court on appeal, should consider making ‘ reasonable

modi fications ’ in its interpretation of that zoning regulation to accommodate the disabled

person. ”). The Environmental Division has jurisdiction to review zoning appeals, and the
Civil Division has jurisdiction over VHPA claims.

The Town argues that , in light of the ability of the municipal and Environmental
Division proceedings to determine the issue of reasonable accommodations, the lack of an
appeal from the DRB, and the resulting finality of that ruling, t here is nothing left for
this Court to do under the VHPA. This case is, the Town argues, an impermissible
collateral attack on a final zoning decision in a c ourt with no jurisdiction to review zoning

decisions.
In making this argument, the Town construes the complaint , in part, as seeking
injunctive relief effectively permitting the structure regardless of the final zoning

decision. The Town’s interpretation of the complaint is reasonable to the extent that one
item of relief sought, the request s for injunctive relief
, are vague and ostensibly broad
enough to encompass such relief. The HRC’s position has been changeable. In opposition

to dismissal, the HRC stated that it accepts the finality of the DRB decision and is
seeking no such relief. A t oral argument, the HRC indicated that it may be seeking
declaratory relief and other relief that may flow from a determination that the failure ofOrder Page 5 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury the DRB ’s decision to deny a reasonable accommodation was discriminatory. It also said
that it was seeking to “keep the structure,” although it also indicated that whether such

relief w ould be permitted could be addressed “down the road” in this case.

There can be no doubt that the DRB’s variance decision is final and cannot be

contested , directly or indirectly, in this forum. The statute setting out finality and
exclusivity

- of

- remedy principles for zoning decisions is not ambiguous. Under 24 V.S.A. §
4472(a), Ms. Stone’s exclusive remedy for the variance de nial was de novo review in the

Environmental Division. The right to that review , and any relief that Court may have

ordered, was lost forever when no appeal was taken. The related finality provis ion is
crystal clear: “ Upon the failure of any interested person

. . . to appeal to the

Environmental Division

. . . , all interested persons affected shall be bound by that

decision or act

. . . and shall not thereafter contest, either directly or indirectly , the

decision or act .” 24 V.S.A. § 4472(d) (emphasis added) ; Levy v. Town of St. Albans Zoning
Bd. of Adjustment , 152 Vt. 139, 142 (1989) (“ Plaintiffs did not appeal the 1984 decision of
the zoning board, but they collaterally attack that decision in this lawsuit. The statute
unequivocally forecloses such a contest, and the superior court was without jurisdiction

to consider it. ”).
A long line of Vermont Supreme Court authority has enforced that finality

provision with consistent vigor

. See, e.g., City of S. Burlington v. Dep ’ t of Corr ., 171 Vt.

587, 588 ( 2000) (collecting cases and noting that: “T he policy underlying the statute is to
assure parties of finality. ”). It has done so even in the face of significant countervailing
considerations, including assertions that a permit was “void” because it was beyond the
zoning board’s authority, Levy
, 152 Vt. at 142 , and that the city board lacked jurisdictionOrder Page 6 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury to issue a conditional use permit due to sovereign immunity, City of S. Burlington
, 171

Vt. at 59 0 (“ Section 4472 demonstrates an unmistakable intent to limit zoning disputes

to a well

- defined procedure and to provide finality at the end of proceedings .”). As
succinctly stated by our High Court, Section 4472(d):

e mbod [ies] through broad and unmistakable language a legislative intent to prevent any kind of collateral attack on a zoning decision that has not been properly appealed through the mechanisms provided by the municipal planning and development statutes

.... Together, they implement a weighty policy of repose grounded in the premise that, with respect to municipal zoning, t here should, in fairness, come a time when the decisions of an administrative officer become final so that a person may proceed with assurance instead of peril.
In re Hopkins Cert

. of Compliance , 2020 VT 47, ¶ 8, 212 Vt. 368 (internal quotations
omitted; emphasis in original).

There also can be no doubt that th e Civil Division has exclusive jurisdiction over

VHPA claim s

. 9 V.S.A. §§ 4506(a), (c), 4553(a)(6)(B)

. There is no dispute that the Town
is subject to the VHPA in this context. It applies to any person, and it makes unlawful

the refusal “ to make reasonable accommodations in rules, policies, practices, or services
when such accommodations may be necessary to afford a person with a disability equal

opportunity to use and enjoy a dwelling unit, including public and common areas. ” 9
V.S.A. § 4503 (a)(10).
The Town does not argue that the VHPA does not apply to it or in this context.

Instead, it maintains that
, because the discrimination issue is one of the issues the DRB
is to consider in weighing whether to grant a variance, and because the DRB’s decision
denying the variance is now final, any determination by this Court to the effect that the

Town violated the VHPA by denying the variance would be an impermissibl e collateral

attack on that final decision. The HRC generally emphasizes that this Court, not theOrder Page 7 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury Environmental Division, has jurisdiction over VHPA claims, and the HRC only has
jurisdiction to sue in the C ivil D ivision; it had no opportunity to participate in the zoning
proceeding. It also emphasizes that there is other relief available in this Court that
could not have been available in the zoning proceeding, including compensatory and
punitive damages, attorney fees, and injunctive relief (other than an award of a

variance ). See 9 V.S.A. § 4506(a), (b).
In the specific circumstances of this case, the Court agrees with the Town’s
position. Finality under 24 V.S.A. § 4472(a) for lack of appeal “ is treated as an
adjudication on the merits, which

. . . is tantamount to a concession by plaintiff that he

was not entitled to the permit that was denied him. ” Littlefield v. Town of Colchester
, 150 Vt. 249, 251 (1988) . There is no meaningful way for this Court to rule on an asserted

VHPA claim focused on the denial of a zoning permit when that denial has become final
under 24 V.S.A. § 4472. 4 No matter what relief the HRC is seeking here, it is asking the
Court to rule that the variance should have been granted. Only the DRB or, on review,
the Environmental Division and the Supreme Court can do that. In short, the HRC is
asking this Court to make a ruling that is in conflict with the final decision of the DRB.
Indeed, the HRC confirmed at oral argument that a necessary element of proof in
establishing its case before this Court is proving that the DRB should have granted the
variance as a reasonable accommodation for Ms. Stone’s disability. In the Court’s view,

4 The HRC’s claim is based solely on the allegation that th e DRB failed to grant the variance as a reasonable accommodation when it should have done so. The Court expresses no view on the application of the finality rule to allegations of different types of municipal discrimination.Order Page 8 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury such a ruling , at the very least, would be a n indirect collateral attack on the DRB’s

contrary decision to deny the v ariance as a reasonable accommodation

.
Th e distinction between this case and Blanche S. Marsh Inter Vivos Trust v.
McGillvray
, 2013 VT 6, 193 Vt. 320 , help s to make the point . In that case, as a zoning
matter, the Environmental Division awarded a permit to construct a dwelling within the
Quechee Lakes subdivision. Subsequently, in a separate declaratory action, the Civil

Division “ concluded that plaintiff’s proposed construction violated the applicable

restrictive covenants and deed restrictions.” Id

. , 2013 VT 6, ¶ 1 , 193 Vt. at 323

. Among
other things, the plaintiff argued “tha t the civil division did not have jurisdiction over

[the] declaratory judgment action in light of the Environmental Division’s ruling that
construction of a single

- family dwelling

. . . was permitted .” Id

. , 2013 VT 6, ¶ 18 , 193 Vt.

at 329

. In other words, the p laintiff argued that the civil action was a collateral attack
on the zoning decision that was barred by 24 V.S.A. § 4472.
The Court explained that the argument confuse d the distinction between the
subject matters and which courts had jurisdiction over which subject matter.

[This argument rests] on a misunderstanding of the difference between the issuance (or denial) of a zoning permit pursuant to applicable zoning regulations and enforcement of private property rights embodied in deed restrictions and covenants. The two matters are distinct. The governing sources of law

— Hartford’s zoning regulations and the Master Plan upon which municipal approval of the development was predicated in the case of the zoning permit application, and the deed and Covenants in the case of the private property rights

— are separate. Different courts have the authority to decide the respective questions.
If the question in this case were the validity of the municipal zoning permit issued to plaintiff

. . . , we might agree with plaintiff’s arguments. But the question in this case is not the validity of the municipal zoning permit. The questions posed by plaintiff’s quiet title action are [the effects of deed restrictions].Order Page 9 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury

The civil division clearly had authority to address these latter questions, and the Environmental Division did not.

Id

. , 2013 VT 6, ¶¶ 19

– 21 , 193 Vt. at 329

– 30 (citations omitted)

. In effect, the Supreme

Court ruled that a landowner can be entitled to a zoning permit but not have property
rights sufficient to use it. Different Courts have jurisdiction to determine those separate

issues
, and they are not in conflict.

In this case, on the other hand, the HRC’s claim overlaps with the zoning
proceeding precisely on an issue over which this Court plainly lacks jurisdiction

— whether the variance should have been granted based on the request for a reasonable

accommodation. And the DRB was empowered to consider the request for

accommodation in its own proceeding. Even if the HRC is not asking this Court to grant
the variance, any relief it could be entitled to here would depend on a ruling that the

variance should have been granted. Unlike in McGillvray
, where the legal questions of
permitting and private d eeds did not intersect, to find discrimination in this case, the
Court would necessarily have to rule that the variance was wrongfully denied. The
Court lacks subject

- matter jurisdiction to make such a determination.

The HRC’s objection to that result is not insignificant. It maintains that it had no
viable way to involve itself in the underlying zoning proceeding and that this Court

sh ould have jurisdiction to enforce the VHPA. 5 It is a weighty contention, which is
supported by strong policy concerns. But the law of finality under these circumstances is

5 The Court presumes the HRC could have submitted an amicus brief at the DRB or, perhaps, taken other action to assist Ms. Stone. The Court accepts the HRC’s main point , though, that it could not have been a party or represented Ms. Stone in the municipal proceeding.Order Page 10 of 10

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- 01316 Vermont Human Rights Commission v. Town of St. Johnsbury unavoidable. To the extent an alternative policy is appropriate, an amendment to the

law can be a dvocate d for t o the L egislature. In fact, the Legislature has already made

exception s to the finality provision for certain constitutional claims and claims asserted
by the Vermont Attorney General. 12 V.S.A. § 4472(b). On the existing law, however,
the DRB’s decision is final, and the Court lacks jurisdiction to entertain a case, such as

this one, that amounts to a collateral attack on that determination. 6

Conclusion
For the foregoing reasons, the Town’s motion to dismiss is granted

. Electronically signed on Wednesday, November 8, 2023 , p er V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge

6 This conclusion does not mean that all relief under the VHPA is foreclosed whenever a municipal zoning authority discriminatorily denies a variance in circumstances such as those alleged in this case. Had Ms. Stone successfully appealed the denial and bee n granted the variance, she (or the HRC) potentially could have sought any remaining redress under the VHPA , if any, in the Civil Division. It is the finality of the DRB decision
, and the direct overlap and contest of legal issues that forecloses that possibility in this case

.