NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@ vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609

- 0801 , of any errors in order that corrections may be made before this opinion goes to press.

201 6 VT 84
No. 20 14

- 470 Donald Gould Supreme Court On Appeal from v. Superior Court, Addison Unit , Civil Division Town of Monkton September Term, 2015

Robert A. Mello , J. Colin R. Hagan, David J. Shlansky and Kate S. Swartz, Law Clerk (On the Brief) of Champlain Law Group, PLC, Vergennes, for Plaintiff

- Appellant

. James F. Carroll and Constance Tryon Pell of English, Carroll & Boe, P.C., Middlebury, for Defendant

- Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund , Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. Landowner appeals three rulings of the s uperior c ourt’s c ivil d ivision pertaining to the Town of Monkton’s new zoning regulations. He argues that the trial court erred by finding (1) that it had no jurisdiction to hear a declaratory jud gment action seeking to invalidate the new zoning regulations ; (2) that landowner had no due process interest in the process by which zoning regulations were adopted ; and (3) that landowner had no due process property interest in the application of the pre vious zoning regulations. We affirm. ¶ 2. For several years, Monkton planned to replace its 1978 zoning regulations and their 1986 amendments. In February 2011, the Monkton planning commission held its final public hearing on a new set of zoning regulations, which it called the Unified Planning2

Document (UPD). After approving the UPD, the planning commission presented it to the Monkton selectboard. On August 4, 2011, the selectboard published notice for its first public hearing on the UPD , and the town began reviewing all zoning applications under the UPD rather than under the 1978 regulations

. The selectboard then held the first public hearing later in August and its second, final public hearing i n January 2012 . After approving the UPD, the

s electboard submitted it to the Monkton town clerk to be voted on at a speci al election by town residents. ¶ 3. However , before the town vote was held, the planning commission submitted an updated report on the UPD to the selectboard addressing several issues. In response to this report, the selectboard made revisions to the UPD without notice of a public hearing. These revisions included modifying the requirements for obtaining a certificate of occupancy, increasing the number of lots needed to create a mobi le home park, and increasing the required topsoil depth for stormwater facilities. The selectboard then submitted the revised UPD to the Monkton town clerk for the upcoming special election. The town vote was held in February 2012, and the UPD was approv ed by a vote of 130 in favor, 128 against. ¶ 4. Landowner alleges that the new zoning regulations under the UPD interfere with his long

- held development plans and reduce the potential economic return o n his property in Monkton . Namely, by increasing the mini mum lot size from one acre to two and by increasing the lot frontage minimum, the UPD reduces the number of lots into which landowner can subdivide his property. I n January 2012

— prior to both the selectboard’s approval of the UPD
revision and the town vot e

— landowner had sent a letter to the selectboard objecting to the process through which the selectboard approved the UPD. In the letter, landowner alleged that the selectboard had not fulfilled the statutory public notice requirements for adopting new zon ing regulations and that the UPD was therefore invalid.3

¶ 5. I n March 2013

— thirteen months after the town vote adopting the UPD

— landowner filed a declaratory judgment action with the civil division of the s uperior c ourt seeking to invalidate the UPD on the grou nd that it was enacted in violation of 24 V.S.A. ch. 117 . In this action, he repeated the same objections as those in his letter to the selectboard. Specifically, landowner alleged that the Monkton selectboard (1) failed to provide proper notice of publi c hearings on the UPD by not including its full text or providing a detailed table of its

contents ; (2) amended the UPD outside the permitted time period and without the required hearings ; and (3) disregarded the town plan by adopting the UPD. ¶ 6. In April 201 3, Monkton responded to landowner ’s action through a motion to dismiss, arguing that the civil division did not have subject matter jurisdiction because the environmental division has exclusive jurisdiction to hear matters arising under 24 V.S.A. ch. 117 , which addresses municipal and regional planning and development. Moreover, in June 2013, the court raised sua sponte the question of whether landowner had standing to pursue his action in light of the fact that he had not yet applied for or been denied a permit. Landowner filed a brief on the issue in which he stated an additional claim premised on a violation of his right to procedural due process. M onkton also filed a brief on the issue of standing and included a response to landowner ’s constitutional argument. ¶ 7. In May 2014, landowner applied to the Monkton Development Review Board to subdivide his property to create a one

- acre lot. Landowner did so in response to the court’s question regarding standing, which had suggested that he lacked an injury in fact or that his claim w as not ripe without a permit denial. Even so, landowner maintained that he was not required to apply for a permit to ha ve standing. Notably, landowner ’s application was made in accordance with the 1978 regulations , not with the UPD. Because of this, the Development Review Board rejected landowner ’s application. Landowner did not appeal this denial to the environmental d ivision of the superior court

.4

¶ 8. In November 2014 , a fter reviewing the parties’ b riefs on the issue of standing, the trial court granted Monkton’s motion to dismiss on three grounds. First, the court held that it had no jurisdiction to hear a declaratory ju dgment action seeking to invalidate the UPD on statutory grounds because such jurisdiction lies exclusively with the environmental division. Second, it held that there is “no constitutionally protected property interest in demanding compliance with”

state

- mandated ordinance adoption procedures. Third, it held that landowner had no vested rights to develop his property under the previous zoning regulations , and thus no property interest protected by procedural due process, because he had applied for a perm it only after the UPD took effect. Landowner now appeals each of these holdings

. I. Statutory Argument ¶ 9. Landowner first argues that the Legislature did not intend to divest the civil division of its jurisdiction over declaratory judgment actions seeking t o invalidate municipal zoning regulations as violations of 24 V.S.A. ch. 117

. Here, t he critical question raised by landowner is whether 4 V.S.A. § 34 divests the civil division of jurisdiction over his claims that Monkton enacted the UPD in violation of 24 V.S.A. ch. 117 . That statute provides that the environmental division shall have jurisdiction of, among other things, matters arising under 24 V.S.A. ch. 117 . Landowner does not dispute that this statute gives the environmental division jurisdiction o ver claims arising under 24 V.S.A. ch. 117 , but argues that the civil division retains concurrent jurisdiction. He points to the civil division’s broad general jurisdiction, as well as language in a related statute assigning the family division exclusive jurisdiction over specified matters to support his claim that the environmental division’s jurisdiction over claims like his is not exclusive but, rather, is concurrent with the civil division. Compare 4 V.S.A. § 33 ( “[T]he Family Division shall have excl usive jurisdiction to hear and dispose of [certain enumerated family law proceedings ] ” (emphasis added) ) with 4 V.S.A. § 34 (“[T]he environmental division shall have

. . . jurisdiction of matters arising under [ 24 V.S.A. ch. 117 ] ”) emphasis added ) ).5

Speci fically, he argues that t he absence of the term “exclusive jurisdiction” in 4 V.S.A. § 34 indicates that the c ivil d ivision retains concurrent jurisdiction over matters arising under 24 V.S.A. ch. 117

. See Hopkinton Scout Leaders Ass ’ n v. Guilford , 2004 VT 2, ¶ 8, 176 Vt. 577, 844 A.2d 753 (mem.) (“Where the Legislature includes particular language in one section of a
statute but omits it in a nother section of the same act, it is generally presumed that the Legislature did so advisedly.”) (citation o mitted)

. ¶ 10. We disagree: through its 2009 reorganization of the s uperior c ourt, the Legislature not only divested the c ivil d ivision of exclusive jurisdiction over matters arising under 24 V.S.A. ch. 117 but also granted exclusive jurisdiction to the e nviro nmental d ivision. W hen viewed together , the plain language of the statutes governing the jurisdiction of the civil and environmental divisions make this clear. First, 4 V.S.A. § 31(1) establishes that the c ivil d ivision has “original and exclusive jurisd iction of all original civil actions, except as otherwise provided in sections 2, 32, 33, 34, 35, and 1102 of this title.” Then , 4 V.S.A. § 34 states an exception to the civil division’s general and exclusive jurisdiction . As previously noted, it e xplici tly details that the “ e n vironmental d ivision shall have

. . . jurisdiction of matters arising under [ 24 V.S.A. ch. 117 ].” Finally, 4 V.S.A. § 31( 5 ) clarifies that the civil division has “ jurisdiction to hear and dispose of any other matter brought before the Court pursuant to law that is not subject to the jurisdiction of another division. ” Because 4 V.S.A. § 34 explicitly grants jurisdiction over matters arising under 24 V.S.A. ch. 117 to the environmental division, those matters are clearly an exception to the civil division’s general jurisdiction under both 4 V.S.A. § 31(1) and 4 V.S.A. § 31( 5 ) . The civil division has neither exclusive jurisdiction nor concurrent jurisdiction over matters arising under 24 V.S.A. ch. 11 7. ¶ 11. This analysis is not changed by the fact that 4 V.S.A. § 33 includes the term “exclusive” in describing the f amily d ivision’s jurisdiction over family law proceedings, while 4 V.S.A. § 34 does not include the term “exclusive” in describing the e nvironmental d ivision’s6

jurisdiction over environmental law proceedings. Importantly, 4 V.S.A. § 32

— which details that the criminal division has jurisdiction over criminal matters

— does not include the term “exclusive jurisdiction.” Neither does 4 V.S.A. § 35, which details that the probate divis ion has jurisdiction over probate matters. But

— generally speaking

— the criminal division does have exclusive jurisdiction over criminal matter s and the probate division does have exclusive jurisdiction over probate matters. The exceptions to this general rule are rare , and perhaps the most notable exceptions are found in the jurisdiction of the family division’s juvenile proceedings . See, e.g., In re D.K. , 2012 VT 23, ¶ 12, 191 Vt. 328, 47 A.3d 347 (“[T]he family
division ’ s jurisdiction over juvenile delinquency proceedings is exclusive and takes precedence over any inconsistent criminal law provisions, but normally ends when the juvenile reache s eighteen years of age.”) ; see also 33 V.S.A. § 5101 (b) (“The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this State to the extent the same are inconsistent with this cha pter.”)

. ¶ 12. But landowner further argues that he would unconstitutionally be left without a remedy if he cannot pursue his claims in the civil division; in other words, that he would have no forum for his claims. He contends that he cannot bring a declarator y judgment action against Monkton to contest the UPD in the civil division and that “the Environmental Division regularly dismisses standalone facial challenges to the validity of zoning regulations.” He further alleges that this situation violates the Ve rmont Constitution. See Vt. Const. Ch. I, Art. 4 (“Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in pe rson, property or character ”). ¶ 13. We disagree. First, the record does not show that landowner has no remedy in the environmental division . Landowner did not appeal the denial of his permit application and challenge the validity of the statute in the context of that appeal. Second, he did not actually bring a d eclaratory judgment action in the environmental division, so his presumptions about7

what the environmental division would do are merely speculative. They do not support his claim that he has no forum to challenge Monkton’s compliance with 24 V.S.A. ch. 11 7 in enacting the
UPD. ¶ 14. Building off this argument

— which landowner claims is a “constitutional challenge, ” l andowner next argues that even if the Legislature generally divested the civil division of jurisdiction over matters arising under 24 V.S.A. ch. 117 , it created an exception for constitutional challenges through 24 V.S.A. § 4472(b). That section reads “[t] he remedy of an interested person with respect to the constitutionality of any one or more of the provisions of any bylaw or municipal plan shall b e governed by the Vermont Rules of Civil Procedure with a de novo trial in the Superior Court.” 24 V.S.A. § 4472(b). Referring to that section, landowner claims that he properly filed his suit in the civil division because it asserts a constitutional cha llenge. ¶ 15. But landowner’s characterization of his argument regarding 24 V.S.A. ch. 117 as a “constitutional challenge” is incorrect. Instead, this challenge is strictly statutory because it directly asserts that the UPD was enacted in violation of 24 V.S. A. ch. 11 7 and only secondarily asserts that if it did not violate the statute it would be unconstitutional

. Landowner cannot recharacterize what is squarely a statutory claim as a constitutional claim to get it back into the civil division, and his refer ence to 4 V.S.A. § 4472(b) cannot bring the claim into the jurisdiction of the civil division because that section concerns the “ constitutionality of any one or more of the provisions of any bylaw or municipal plan

. ” 4 V.S.A. § 4472(b). ¶ 16. Instead, landowner ’s statutory challenge is governed by 24 V.S.A. § 4472(a) , and our case law concerning the effect of that statute is clear: s uits that challenge the procedural enactment of municipal planning laws must be brought before the environmental division. See
Har vey v. Town of Waitsfield , 137 Vt. 80, 83, 401 A.2d 900, 901 (1979) (“The claim made here is one of failure to comply with the statutory requirements for adoption of a zoning ordinance,8

not that any provision of that ordinance is unconstitutional. Failure to follow statutory procedures for adoption is an issue which must be raised under 24 V.S.A. § 4472(a).”) , overruled on other grounds by Mohr v. Vill. of Manchester , 161 Vt. 562, 641 A.2d 89 (1993); see also 24
V.S.A. § 4472(a) (“Except as provided in subsections (b) and (c) of this section, the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter [shall be]

. . . appeal to the Environmental Division from an adverse decision”). Be cause landowner’s claim regarding 24 V.S.A. ch. 117 is a statutory claim

— not a constitutional claim

— it belongs in the environmental division.
II. Constitutional Challenges ¶ 17. The civil division asserted jurisdiction with respect to landowner’s procedural due process claims and dismissed them for failure to state a claim. The trial court concluded that landowner had failed to allege a cognizable property interest protected by the due process clause. On appeal, landowner reiterates his claims to two distinct constitutional property interests that he was denied without due process. First, landowner argues that Monkton deprived him of his property interest in “strict compliance with statutory procedures required in the adoption of zoning regulations.” Second, landowner argues that he had a vested interest in continued application of the prior, 1978 regulations, primarily because he had taken substantial steps to develop his property in reliance on those regulations.

A. Interest in Town’s Compliance With Gove rning Statutes ¶ 18. We now address landowner’s procedural due process challenges to the UPD. Landowner first argues that the UPD was improperly enacted and therefore violated his due process rights by infringing on a constitutionally protected property interes t. According to landowner, this property interest is “ strict compliance with statutory procedures required in the adoption of zoning regulations.” The trial court found that no such property interest existed and9

that “[h]olding otherwise would permit the untenable result of turning mere violations of state statute into full

- blown federal cases.” We agree. ¶ 19. To maintain a procedural due process claim properly, a plaintiff must allege facts showing that governmental action deprived plaintiff of a property in terest protected by the Fourteenth Amendment. LaFlamme v. Essex Junction Sch. Dist. , 170 Vt. 475, 480, 750 A.2d 993, 997 (2000) (“To maintain a procedural due process action against a governmental entity, a plaintiff must show that he was deprived of inte rests protected by the Fourteenth Amendment.”)

. To do so, the plaintiff must demonstrate more than a mere expectation; rather, he or she must demonstrate that state law has created a legitimate claim of entitlement to the property interest. Ahern v. Mackey , 2007 VT 27, ¶ 11, 181 Vt. 599, 925 A.2d 1011 (2007) (mem.) (“A protected property interest arises where the plaintiff can demonstrate a legitimate claim of entitlement created by state law, rather than a mere unilateral expectation.” (quotatio ns an d citations omitted )); s ee also Bd. of Regents of State Colleges v. Roth , 408 U.S. 564 , 577 (1972) (“Property interests

. . . are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law

—

rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”). ¶ 20. P rocedural due process requirements apply only with respect to governmental adjudicati ve decisions rather than legislative decisions . See Appeal of Stratton Corp. , 157 Vt. 436, 442, 600 A.2d 297, 300 (1991) (“ Due process requirements apply to the procedures that must be used in reaching agency determinations only if they are adjudicative, rather than rulemaking or legislative, in nature. ” (citation omitted) )

. Those who disagree with the adoption of a legislative enactment can pursue relief through the democratic political process. See Bi

Metallic Inv. Co. v. State Bd. of Equalization , 239 U.S. 441, 445 (1915) (“Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct10

voice in its adoption.

. . . Their rights are protected in the only way that they can be in a complex society, by thei r power, immediate or remote, over those who make the rule.”). ¶ 21. In Vermont, t hree factors from Appeal of Stratton Corp oration determine whether an agency action is legislative rather than adjudicative:

(1) whether the inquiry is of a generalized nature, rather than having “a specific, individualized focus”; (2) whether the inquiry “focuses on resolving some sort of policy

- type question and not merely resolution of factual disputes”; and (3) whether the result is of “prospective applicability and future ef fect.” Stratton , 157 at 443, 600 A.2d at 301 (quoting 1 C. Koch, Administrative Law & Practice § 2.3,
at 61

- 62 (1985)). As a general rule, a party may not challenge a legislative enactment through the courts simply because that enactment particularly or d isproportionately affects that party.
See id

. at 445, 600 A.2d at 302 ( e xplaining that landowner ’s interest “ may be different from that of other members of the public, but it has no right to turn a public issue into a private contest. ” ). ¶ 22. We consistently apply the three Stratton factors to municipal and land use decisions. In Lake Bomoseen Ass ociation v. Vermont Water Res ources B oar d , we applied the factors to a wetlands reclassification by the Vermont Water Resources Board

. 2005 VT 79 , 1 78
Vt. 37 5, 886 A.2d 355. We found that the reclassification not only implicated “the interests of
all the state ’ s citizens and its environment, not simply the interests of owners of property adjacent to the wetland” but also was “ policy judgment

- based on a consideration and balancing of numerous scientific, economic, and aesthetic factors ” and affected “potential future land uses, not past conduct

. ” See id

. ¶ 12

. We therefore found that the reclassification was a legislative action and affirmed the dism issal of a homeowners association due process challenge to it. Likewise, in Parker v. Town of Milton we analyzed a public meeting that had been intended to determine a proposed bridge’s impact on the public interest. 169 Vt. 74, 726 A.2d 477 (1998)

. We determined that the meeting had a legislative function because its purpose was “a policy determination, involving general facts, and having a prospective application.” Id . at 80, 72611

A.2d at 482

. We therefore found against the opponents of the proposed b ridge on their due process claim, which was premised on an allegation that a town official improperly had held their representative out of order at the meeting. ¶ 23. Applying the three Stratton factors in this case, we find that Monkton’s adoption of the UPD was a legislative enactment. First, the UPD affects the entire Monkton community by generally detailing how the T own’s land may be developed . It does not pertain specifically to landowner’ s property. Second, the adoption of the UPD was not concerned with determining underlying facts. Rather, it was a process for developing policy involving the judgment and participation of government bodies and the general public. Third, the adoption of the UPD affects future land use in Monkton, not past land use. ¶ 24. Because Monkton’s adoption of the UPD was a legislative enactment, landowner

cannot assert a constitutional ly protected property interest in the T own’s strict compliance with the statute conc erning the adoption of zoning ordi nances . We do not address landowner’s argument that the procedures used by Monkton failed to meet the requirements of procedural due
process. B. Interest in Development of Property Under 1978 Regulations ¶ 25. Landowner finall y argues that he personally has a vested, constitutionally protected property interest in the 1978 regulations . He relies on three legal theories to support his argument. First, landowner alleges that he not only applied for but also obtained a permit

un der the 1978 regulations , and this gives him a vested property interest in those regulations. We dispose of this argument because we are unable to assess it: the alleged permit is neither part of the record nor part of the allegations in landowner ’s compl aint. Second, landowner argues that the UPD “never took effect due to its deficient enactment,” so the 1978 regulations remain “in existence.” Indeed, l andowner specifically applied for a permit on May 2, 2014, on this premise

. Although his permit appli cation was designed to conform to the 1978 regulations , it12

was filed after the UPD became effective . He alleges that he has a constitutionally protected property interest in the 1978 regulations because he applied for a permit under them and was improperly denied

. ¶ 26. Finally

— and perhaps most important to his claim that he has a vested interest in continued application of the 1978 regulations

— landowner argues that he “took substantial action in developing his property and preparing for subdiv ision, in reliance on the 1978 Regulations” and also “relied on the statutory requirement that he would be provided sufficient notice before adoption of any amendment to the 1978 Regulation.” In other words, landowner believes that his intentions and expe ctations to develop his property under the 1978 Regulations grants him a constitutionally protected property interest in doing so. As landowner points out , federal case law has recognized this interest under certain circumstances. See Gagliardi v. Vill. of Pawling , 18 F.3d 188, 192 (2d Cir. 1994) (“[A] constitutionally protected property interest in land use regulation arises only if there is an entitlement to the relief sought by the property owner. ” ). So has Colorado law. See Eason v. Bd. of Cty. Comm ’rs of Cty. of Boulder , 70 P.3d 600, 605

- 06 (Colo. App. 2003) (“Colorado law recognizes a protected property interest in a zoning classification when a specifically permitted use becomes securely vested by the landowner’s
substantial actions taken in relia nce, to his or her detriment, on representations and affirmative actions by the government.”). ¶ 27. But a closer look at the case law cited by landowner shows that those circumstances are very narrowly prescribed. The federal case involved residential plaintif fs alleging that their municipality had improperly refused to enforce zoning laws against a commercial company and had improperly granted building permits to that same company. The plaintiffs were not entitled to the enforcement of the zoning laws or buil ding permits as they wished. Rather, the court found that “an entitlement to a benefit arises only when the discretion of the issuing agency is so narrowly circumscribed as to virtually assure conferral of the benefit.”13

Gagliardi , 18 F.3d at 192 . Likewi se, in the Colorado case, the plaintiff “paid for a ‘building permit,’ purchased and installed the semitrailers, and began his self

- storage business” because he “was told by the government that his use was permitted under its interpretation of the zoning

o rdinance, and he relied, to his detriment, on that assertion.” Eason , 70 P.3d at 606. In other words, unlike here, the plaintiff directly relie d on a communication from the government authorizing his development. This communication was necessary to a fi nding that plaintiff had a protected property interest. Our interpretation of the Colorado case is that a nything less would not constitute a “legitimate claim of entitlement.” See Ahern , 2007 VT 27, ¶ 11

. ¶ 28. Furthermore, Vermont case law is clear : only fili ng a permit application vest s a right in existing regulation s, and it does so only in the regulations at the time of filing . See Smith v. Winhall Planning Comm ’ n , 140 Vt. 178, 181

- 82 , 436 A.2d 760, 761 (1981) (adopting minority rule that filing permit application vest s rights against future changes in zoning regulations because rule prevents legal maneuvering , increases certainty of administration, and is fair to applicants ); see also In re Keystone Dev. Corp. , 2009 VT 13, ¶ 5, 1 86 Vt. 523, 524, 973 A.2d 1179 (2009) (mem.) ( discussing Smith , and describing that “ a permit applicant gains a vested right in the governing regulations in existence when a full and complete permit application is filed .”). It cannot vest a right in any o ther regulations. Indeed, we have previously held that a permit application cannot prospectively vest a right in future regulations. See In re Times and Seasons, LLC , 2011 VT 76, ¶ 11, 190 Vt. 163, 27 A.3d 323 ( holding that Act 250

“ applicant on reconsideration may not simultaneously take advantage of the laws in effect at the time of the initial application and those in effect at the time of the reconsideration application

— it is not a two

- way street

. ” ). Here, the existing regulations at the time of the permit application14

were the UPD. We hold that a permit application cannot retroactively vest a right in prior regulations. * ¶ 29. Moreover, the UPD

— not the 1978 regulations

— was in effect when landowner applied for the permit. As previously explained, l andowner may disagree with how the UPD was enacted, but procedural due process requirements do not apply. Therefore, the UPD is the existing law , and landowner has no due process rights in the 1978 regulations . Although landowner may be particularly affe cted by the change in zoning regulations, he cannot turn this public issue into a private dispute. Affirmed

. FOR THE COURT:

Chief Justice

* Landowner also argues that he was not required to apply for a permit to challenge the enactment of the UPD because he is bringing a facial challenge, not an as

- applied one. This argument is not germane to our analysis of landowner’s constitutional chall enges because the distinction between a facial challenge and as

- applied one has no effect on our holdings.