Vermont Superior Court Filed 11/ 23 Washington mt

VERMONT SUPERIOR COURT Washington Unit 65 State Street Montpelier VT 05602

802—828—2091 wwwvermontjudiciaryorg

CIVIL DIVISION

Case No. 23-CV-01316

£3:

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inion and Order on the Town’s Motion to Dismiss

In this case, the Vermont Human Rights Commission (HRC) claims that

Defendant the Town of St. Johnsbury, acting through its development review board

(DRB), discriminated against Ms. Nicole Stone by refusing to grant zoning variance

permitting an accessory structure constructed without permit and in violation of municipal zoning regulations. The HRC claims that the denial amounts to

discriminatory refusal to accommodate Ms. Stone’s disability in Violation of the Vermont

Fair Housing and Public Accommodations Act (VHPA), V.S.A. §§ 4500—4507. The HRC maintains that Ms. Stone relies upon motorized wheelchair for mobility and allegedly

needs the outdoor sheltered structure to meet with her caseworker or other caregivers. Ms. Stone is not party to this case. The HRC brought this action, pursuant

to its

statutory authority, V.S.A. §§ 4551—4556, for Ms. Stone’s benefit and in the public

interest. See V.S.A. 4506(c). The Town has filed Rule 12(b)(1) motion to dismiss for

lack of subject matter jurisdiction. It argues that this Court lacks jurisdiction over the

VHPA claim because no one sought de novo review of the DRB’s variance denial, which

now is final, in the Environmental Division.1 24 V.S.A. 4472.

The substance of the HRC’s VHPA claim is not at issue at this time. Order Page of 10

23—CV—01316 Vermont Human Rights Commission v. Town of St. johnsbury

Vermont Human Rights Commission V. Town of St. Johnsbury
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23-CV-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 complaint [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 outside 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 inside 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 while 

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. Stone 
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23-CV-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, 

explaining 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 complaint 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). The 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.
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23-CV-01316 Vermont Human Rights Commission v. Town of St. Johnsbury

Division, likewise, is authorized to analyze the discriminatory effect of denying a 

variance application as necessary to avoid any such discrimination. See In re Union 

Bank, No. 299-12-06 Vtec, 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 

modifications’ 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, there 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 court 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 requests 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. At oral argument, the HRC indicated that it may be seeking 

declaratory relief and other relief that may flow from a determination that the failure of 
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23-CV-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 would 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 denial 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 provision 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: “The 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 jurisdiction 
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23-CV-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 590 (“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):

embod[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, there 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 the Civil Division has exclusive jurisdiction over 

VHPA claims. 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 impermissible collateral 

attack on that final decision. The HRC generally emphasizes that this Court, not the 
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23-CV-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 Civil Division; 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 the 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.
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such a ruling, at the very least, would be an indirect collateral attack on the DRB’s 

contrary decision to deny the variance as a reasonable accommodation.

The distinction between this case and Blanche S. Marsh Inter Vivos Trust v. 

McGillvray, 2013 VT 6, 193 Vt. 320, helps 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 “that 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 plaintiff 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 confused 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].
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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 deeds 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 

should 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.
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unavoidable. To the extent an alternative policy is appropriate, an amendment to the 

law can be advocated for to the Legislature. In fact, the Legislature has already made 

exceptions 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, per 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 been 

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.