### Hawkins Bay Lane Minor SD

ENTRY REGARDING MOTION

Count 1, Municipal Planning Commission Subdivision (91-7-17 Vtec)

Title: Motion to Dismiss (Motion 3)

Filer: Betsy and Tim Etchells, Christine and Hugh McBridge, and Stuart M. MacCrellish

Attorney: Alexander J. LaRosa

Filed Date: November 14, 2017

Response in Opposition filed on 11/29/2017 by Attor ney Michael T. Russell for Appellants Marjorie London and John Evans Reply in Support filed on 12/11/2017 by Attorney Al exander J. LaRosa for Interested Persons

The motion is DENIED.

The present appeal is of a June 26, 2017 decision, by the Town of Ferrisburgh (“Town”) Planning Commission (“Planning Commission”) denying an application submitted by John Evans and Marjorie London (“Applicants”). The matter cur rently before the Court is a motion to dismiss the pending appeal submitted by Betsy and Tim Etche lls, Christine and Hugh McBride, and Stuart M. MacCrellish (“Interested Parties”).

In considering the pending motion, the Court views all factual allegations presented in a light most favorable to the non-moving party, which in this appeal is Applicants. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245.

The Applicants’ property was created by subdivision in 1992. When the property was subdivided, the Planning Commission approved the su bdivision with conditions. The prior owner of Applicants’ property appealed that decision to t he court which at that time had jurisdiction over municipal land use appeals from municipalities in Addison County: the Addison County Superior Court. 1 During that proceeding, the prior owner entered i nto a settlement agreement with the other parties in that municipal land use a ppeal. This settlement agreement was then incorporated into a judgement order that resolved t he land use appeal. The judgment order also

1 The Environmental Division of the Vermont Superior Court, previously known as the Vermont Environmental Court, was in 1995 granted the jurisd iction to hear appeals from all Vermont municipal la nd use
determinations. 

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SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 91-7-17 VtecIn re Hawkins Bay Lane Subdivision, No. 91-7-17 Vtec (EO on Motion to Dismiss) (1-31-2018) Page 2 of 5

incorporated the parties’ stipulated term that a re strictive covenant would be included in the deed to Applicants’ property. The covenant, in rel evant part, includes a clause creating a “no build zone” in which no buildings may be constructe d.

On March 27, 2017, Applicants filed an amendment ap plication with the Planning Commission for a minor revision to the parcel’s fin al plat to reconfigure the “no build zone.” The application was denied, and Applicants appealed tha t denial to this Court.

Interested Parties move to dismiss the current land use appeal, based on lack of subject matter jurisdiction, pursuant to V.R.C.P. 12(b)(1). Interested Parties argue that the application proposes to impermissibly amend the judgement order entered by the former Addison Superior Court, such that this Court lacks jurisdiction to h ear the case. In addition, they argue that the pending amendment application is barred under 24 V. S.A. § 4472 and the successive-application doctrine. Applicants disagree, arguing the applica tion submitted was to alter a final plat, which, they argue, is separate and apart from the former S uperior Court’s judgement order.

We must address a preliminary matter. When a case before the Court involves an underlying property dispute, with regard to the pro perty disputed, the Court must determine whether an applicant has met a threshold burden of producing some evidence of a legal interest and right in the property to be developed. See, e. g., In re Leiter Subdivision Permit, No. 85-4-07 Vtec, slip op. at 4–5 (Vt. Envtl. Ct. Jan. 2, 2008) (Durkin, J.); Appeal of Curtis, Nos. 46-2-05 Vtec, 72-4-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Mar. 22 , 2006) (Durkin, J.). When the Court inquires into whether an applicant has met their threshold burden , it must balance this burden with the Court’s jurisdictional limitations. Appeal of Curt is, Nos. 46-2-05 Vtec, 72-4-05 Vtec at 6 (Mar. 22, 2006).

In the present appeal, the uncontested evidence sho ws that Applicants own the subject property and their deed contains a restrictive cove nant preventing building in the defined “no build zone.” The application before the Court spec ifically requests minor revisions to the parcel’s final plat, so as to reconfigure the “no build zone .”

As the Applicants own the subject property, and the application before the Court is a final plat amendment, the Applicants have met the relativ ely low threshold burden of showing an interest in the property to be developed. See Liet er, No. 85-4-07 Vtec at 5 (Jan. 2, 2008). 2 Applicants remain subject to the “no build zone” co venant as it is currently configured. The Court understands that the application, as a practical ma tter, is an attempt to find relief from the restriction, which was initially created by the fin al plat Applicants seek to amend. Even so, we conclude that Applicants have met this threshold bu rden, since they are the fee simple holders of title to the subject property.

2 We further note, to the extent this action address es the enforcement and amendment of a restrictive deed covenant, this Court is without jurisdiction t o interpret private property rights. See Appeal of Yates and Leetle, No. 158-9-04 Vtec, slip op. at 3 (Vt. Envtl. Ct. May 4, 2005) (Durkin, J.). The Court notes that this present matter is based in an application to amend the parcel’s final plat; however, the parcel is still subject to the restrictive covenant. Further, the aspect of the final plat Applicants se eks to reconfigure is the “no build zone” as includ ed in the covenant.
This Court must leave the resolution of the restric tion prohibiting building in the “no build zone” to a court with jurisdiction to hear such claims.In re Hawkins Bay Lane Subdivision, No. 91-7-17 Vtec (EO on Motion to Dismiss) (1-31-2018) Page 3 of 5

It appears that the Interested Persons believe that Applicants’ current appeal is an attack on the jurisdiction of a “sovereign” and separate c ourt within our Judiciary. We believe that the
Interested Persons’ assessment is incorrect. In th e twenty-six years that have passed since that 1992 judgment was rendered the structure and jurisd iction of our state trial courts has changed, as well as the names by which we refer to those cou rts. In 1992, what was then known as the Vermont Superior Courts principally handled civil l itigation arising within their individual Counties. Included in their jurisdiction were de n ovo appeals from municipal land use determinations taken from individual zoning boards and planning commissions in their respective towns and cities. In 1995, jurisdiction over all m unicipal land use determinations throughout our
State was transferred to what was then known as the Vermont Environmental Court. What was once heard by the individual superior courts in eac h county was now heard by a state-wide specialty court. However, this transfer of jurisdi ction did not affect the nature of the municipal land use appeals.

Applicants appropriately cite to In re Dunkin Donut s S.P. Approval, 2008 VT 139, 185 Vt. 583 as the most applicable precedent to the legal i ssue before us. Most important from that precedent, the Dunkin Donuts Court noted that land use appeals must be viewed differently than other civil litigation, since land use appeals do n ot always follow all of the rigid “finality” rules of civil litigation. Id. at ¶ 7 (noting that the “’su ccessive-application doctrine’ is a distinct set of preclusive rules developed specifically for zoning proceedings”) (citations omitted). This doctrine, the Court reasoned, does not eliminate th e respect that must be afforded to final judgments in all litigation matters. Rather, the C ourt noted that in municipal land use litigation, subsequent applications for authority to develop la nd that was the subject of a prior municipal panel or court determination may be allowed under t he successive-application doctrine. The Court cited to its prior precedent to explain the d octrine provided for a standard of that was “different from, and frequently more flexible than, the six narrow exceptions to claim preclusion carved out by [Civil] Rule 60(b)” which is the usua l way to avoid preclusion and reopen final judgments. Id. at ¶ 7-8 (citations omitted).

For all these reasons, we conclude that the pending appeal from the Planning Commission’s 2017 denial of Applicants’ request to revise the 1992 final plat determination is within the scope of our jurisdiction.

Interested Parties additionally argue that the pres ent application is barred by 24 V.S.A § 4472 and the successive application doctrine. Th is argument is based upon two prior interactions that Applicants had with the Town.

First, in 2007, Applicants submitted a conditional use application to construct a singlefamily dwelling in the shoreline zoning district. The house would respect the 180-foot setback that was stipulated to by the parties in the 1992 s ubdivision appeal, but Applicants wished to also attach a porch that would encroach into the 180-foo t setback. As to the porch, the Town of Ferrisburgh Zoning Board of Adjustment (“ZBA”) memb ers stated that they could not reach a final determination. Applicants have represented that on e of the reasons stated by the ZBA for their uncertainty was that the 1992 final plat determinat ion required a 180-foot setback that must be respected, even though the zoning regulations had s ince been amended to reduce the setbackIn re Hawkins Bay Lane Subdivision, No. 91-7-17 Vtec (EO on Motion to Dismiss) (1-31-2018) Page 4 of 5

minimum to 80 feet. Applicants then withdrew the a pplication and constructed their house, without the setback-encroaching porch.

In 2009, Applicants sent a letter to the Town askin g whether the Town had the authority to amend the 1992 final plat determination made by the Addison Superior Court, so that they could seek approval for the porch construction with in the “no build zone.” The Town issued a letter in response stating it lacked authority to g rant such an approval. Applicants took no further action after receiving the Town’s 2009 reply, until they filed their plat amendment application in

2017.

Municipal panel decisions that are not appealed bec ome binding on the parties pursuant to § 4472. The term “decisions” is not defined by statute, however, “the word connotes finality
. . . if a ‘decision’ does not resolve an issue it is not really a decision, but mere commentary or analysis.” Saxon Partners LLC BJ’s Warehouse Sketc h Plan, No. 5-1-16 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Jul. 15, 2016) (Walsh, J.). Such commentary, guidance, and non-binding discussions are not appealable under 24 V.S.A. § 44 71(a). Id. (citations omitted).

Here, Applicants submitted a prior application in 2 007 that they withdrew before the ZBA
rendered a decision. Interested Parties assert tha t the ZBA’s representation that it “fe[lt] that it cannot make a decision” on the application was, in effect, a denial. Looking at this statement, and the fact that the ZBA continued the hearing to a later date, the Court cannot conclude that this statement was a final and binding decision, bu t instead is commentary on the potential limitations on the ZBA’s authority to issue the con ditional use approval. Therefore, there was no decision rendered on the 2007 application and its s ubmission is not subject to § 4472.

Similarly, the 2009 letter inquired of the Town’s a uthority over permitting building in the “no build zone” such that Applicants could determin e how to proceed with the construction of a porch. The Town’s letter in response provides anal ysis and guidance regarding the Town’s understanding of its jurisdiction to permit an appl ication to construct a porch within the “no build zone” that was not yet submitted to the Town. Appl icants’ letter did not address, and the Town’s response did not reach a conclusion regarding a req uest to build the porch within the “no build zone.” The Town’s letter, therefore, is not a fina l and binding decision pursuant to § 4472 that bars the present application.

Under the successive-application doctrine, a munici pal panel or court “may not entertain a second application concerning the same property a fter a previous application has been denied, unless a substantial change of conditions ha[s] occ urred or other considerations materially affecting the merits of the request have intervened between the first and second application.” In re Application of Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 58, 199 Vt. 19.

The successive-application doctrine applies only wh en an application submitted has been denied. As the Court found above, the Town did not reach a decision regarding the 2007 application. Further, the Court does not classify the 2009 letter as an application. Rather, the 2009 letter was a request for guidance on the scope of the Town’s jurisdiction. Therefore, the successive-application doctrine does not apply to t he present application.

As the Court has jurisdiction to hear this appeal a nd the application is not precluded by either § 4472 or the successive-application doctrin e, Interested Parties’ motion to dismiss isIn re Hawkins Bay Lane Subdivision, No. 91-7-17 Vtec (EO on Motion to Dismiss) (1-31-2018) Page 5 of 5

DENIED . An Entry Order regarding the pending motion to c ontinue trial accompanies this Entry
Order.

So Ordered.

Electronically signed on January 31, 2018 at Newfan e, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Superior Judge
Environmental Division

Notifications: Michael T. Russell (ERN 2640), Attorney for Appella nt John Evans and Marjorie London Alexander J. LaRosa (ERN 5814), Attorney for Intere sted Persons Betsy and Tim Etchells, Christine and Hugh McBride, and Stuart M. MacC rellish Benjamin W. Putnam (ERN 1198), Attorney for the Tow n of Ferrisburgh

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