In re Hopkins Certificate of Compliance (Bernard J. Boudreau, Appellant) ( 2020 )

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
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before this opinion goes to press.
2020 VT 47No. 2019-249
In re Hopkins Certificate of Compliance Supreme Court
(Bernard J. Boudreau, Appellant)
On Appeal from
Superior Court,
Environmental Division
December Term, 2019
Thomas S. Durkin, J.
Bernard J. Boudreau, Pro Se, Bennington, Appellant.
Cristina L. Mansfield, Manchester, for Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.),
Specially Assigned
¶ 1. EATON, J. Bernard Boudreau appeals the environmental division’s dismissal of
his appeal from a decision of the Manchester Development Review Board (MDRB) for lack of
jurisdiction. We conclude that Boudreau’s appeal is a collateral attack on a zoning decision barred
by the exclusivity-of-remedy provision in 24 V.S.A. § 4472 and affirm.
¶ 2. The record reveals the following relevant facts. In 2017, Boudreau and Edward
Hopkins owned abutting residential properties in the town of Manchester. In April of that year,
Hopkins sought a change-of-use permit allowing him to begin using his property as a law office.
Boudreau participated in the permit-review process. Although there were several exterior
improvements required under the site plan, Boudreau was primarily concerned with a line of
evergreen plantings which Hopkins had proposed to screen a parking area from his neighbors’
view. The MDRB approved the site plan—making specific note of the line of evergreen plantings
and Hopkins’ agreement to Boudreau’s request that these plantings “consist of arborvitae”1—and
issued a change-of-use permit. Neither the site plan approval nor the permit were appealed.
¶ 3. On January 30, 2018, the Zoning Administrator (ZA) granted Hopkins a temporary
certificate of compliance stating that “[t]he project conforms to the permit and the building may
be occupied for professional use until the exterior elements of the project are complete as
approved” in the site plan. Under the temporary certificate, Hopkins was required to obtain a final
certificate of compliance prior to the temporary certificate’s expiration on July 31, 2018. But on
August 3, 2018, after the temporary certificate had expired, the ZA issued Hopkins a second
temporary certificate of compliance with an expiration date of July 31, 2019. Boudreau timely
appealed the second temporary certificate to the MDRB.
¶ 4. On September 20, 2018, the MDRB issued a decision holding that the second
temporary certificate functioned as an impermissible extension of the first temporary certificate,
and finding that, in any event, the requirements for a temporary certificate had not been met. It
therefore ordered that Hopkins “either come into full compliance with the permit and approved
site plan” within thirty days, “taking into consideration the following determinations, or cease use
and occupancy of the Property until a Certificate of Occupancy has issued.” The “following
determinations” included that the arborvitae screen was in compliance, but several other exterior
improvements required under the site plan remained outstanding.
¶ 5. Boudreau filed a notice of appeal from this decision in the environmental division
on October 15, 2018. Nine days later, while Boudreau’s appeal was pending, the ZA issued
1
Arborvitae are “any of various evergreen trees and shrubs . . . of the cypress family that
usually have closely overlapping or compressed scale leaves and are often grown for ornament
and in hedges.” Arborvitae, Merriam-Webster Online Dictionary, Merriam-Webster.com
[https://perma.cc/MHP3-WCGW].
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Hopkins a final certificate of compliance. Boudreau did not appeal the final certificate of
compliance. Instead, he filed a statement of questions in connection with his appeal of the second
temporary certificate, centering around the MDRB’s determination that the arborvitae screen
complied with the site plan. The statement of questions also asked the court to determine whether
the final certificate was “void due to the noncompliance of the existing arborvitaes.”
¶ 6. Hopkins and Boudreau filed cross-motions for summary judgment in the
environmental division. However, the court determined that Boudreau’s challenge to the validity
of the final certificate was beyond the scope of his appeal from the temporary certificate. Because
unappealed zoning decisions are impervious to collateral attack, the court reasoned, it was unable
to grant relief, and the issues were moot. As a result, it dismissed the action for lack of jurisdiction.
This appeal followed.
¶ 7. We review a court’s dismissal for lack of jurisdiction de novo. Jordan v. State
Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997).
¶ 8. The arborvitae-screening requirements were imposed pursuant to the Vermont
Planning and Development Act. See 24 V.S.A. § 4416(a). Thereunder,
the exclusive remedy of an interested person with respect to any
decision or act taken, or any failure to act, under this chapter or with
respect to any one or more of the provisions of any plan or bylaw
shall be the appeal to the appropriate panel under section 4465 of
this title, and the appeal to the Environmental Division from an
adverse decision upon such appeal under section 4471 of this title.
24 V.S.A. § 4472(a) (enumerating two exceptions not relevant here). Further,
[u]pon the failure of any interested person to appeal to an
appropriate municipal panel under section 4465 of this title, or to
appeal to the Environmental Division under section 4471 of this
title, all interested persons affected shall be bound by that decision
or act of that officer, the provisions, or the decisions of the panel, as
the case may be, and shall not thereafter contest, either directly or
indirectly, the decision or act, provision, or decision of the panel in
any proceeding.
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Id. § 4472(d). We have explained that § 4472(a) and (d) are “two sides of the same coin,”
embodying 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.” City of S. Burlington
v. Dep’t of Corr., 171 Vt. 587, 588-89, 762 A.2d 1229, 1230-31 (2000) (mem.). 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.’ ” Levy v. Town of St.
Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142, 564 A.2d 1361, 1363 (1989) (quoting Graves
v. Town of Waitsfield, 130 Vt. 292, 295, 292 A.2d 247, 249 (1972)).
¶ 9. In order to “properly appeal[]” the decision of a ZA as required under this
exclusivity-of-remedy provision, see City of S. Burlington, 171 Vt. at 588-89, 762 A.2d at 1230,
an “interested person” must file a notice of appeal “within 15 days of the date of that decision.”
24 V.S.A. § 4465(a). Although Boudreau acknowledges that he did not appeal from the final
certificate, he argues that his appeal nonetheless evades the exclusivity-of-remedy provision
because it is not a collateral attack on the final certificate, but instead a direct challenge to the
MDRB’s determination that Hopkins’ arborvitae screening complied. In support of this argument,
he contends that: (1) statutes relating to appeal rights are remedial in nature and must be liberally
construed; (2) the issues raised on appeal do not constitute a collateral challenge barred by § 4472;
(3) he exhausted his administrative remedies, because any appeal of the issue to the MDRB would
have been duplicative as they already passed on the issue; (4) his statement of questions
“preserved” the issue of the validity of the final certificate; and (5) his appeal is not moot.
¶ 10. First, we reject the suggestion that we should view § 4472 through the lens of liberal
construction. Boudreau argues that because it is a statute governing appeal rights, § 4472 is
remedial in nature, and must be liberally construed in favor of the exercise of those rights. But we
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employ tools of statutory construction “only if the plain language of the statute is unclear or
ambiguous.” Flint v. Dep’t of Labor, 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. Boudreau
points to no ambiguity within § 4472, nor do we find any. To the contrary, as explained supra,
¶ 8, we have repeatedly recognized that § 4472, through “broad and unmistakable language,”
forecloses any collateral attack on an unappealed zoning decision. City of S. Burlington, 171 Vt.
at 588-89, 762 A.2d at 1230-31. As a result, we have enforced § 4472(a) and (d) to prevent
collateral attack on unappealed zoning decisions “strictly” and “uniformly in cases stretching back
several decades,” even under circumstances where the unappealed ruling is alleged to be ultra vires
and thus void ab initio. Id. at 588-90, 762 A.3d 1229-31 (tracing “clear line of our precedent on
this point”); In re Tekram Partners, 2005 VT 92, ¶ 8, 178 Vt. 628, 883 A.2d 1160 (mem.); see also
Town of Sandgate v. Colehamer, 156 Vt. 77, 84, 589 A.2d 1205, 1209 (1990) (“We have strictly
enforced the exclusivity-of-remedy provision consistent with the evident legislative intent to
require all zoning contests to go through the administrative review process in a timely fashion.”).
As “the intent of the Legislature is apparent on the face of the statute because [its] plain language
. . . is clear and unambiguous,” we are bound to “implement the statute according to that plain
language.”2 Flint, 2017 VT 89, ¶ 5. There is no cause to engage in statutory construction here.
¶ 11. Boudreau is correct in arguing that § 4472(a) allowed him to appeal “any decision
or act taken” under the Planning and Development Act, including the issuance of the second
temporary certificate. However, the fact that Boudreau was permitted to appeal the ZA’s decision
to grant the temporary certificate does not render his appeal a direct challenge to the final certificate
allowing him to escape § 4472’s exclusivity-of-remedy provision. The issues appropriately raised
2
Moreover, even where principles of liberal construction are in play, legislative intent
remains our polestar. See In re Milton Arrowhead Mountain, 169 Vt. 531, 531, 726 A.2d 54, 56
(1999) (mem.) (“While we recognize the general rule that statutes regulating appeal rights are
remedial in nature and must be liberally construed in favor of persons exercising those rights, our
ultimate goal is to give effect to the intent of the Legislature.”).
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in connection with an appeal from the second temporary certificate are limited by the scope of that
temporary ruling, which was effectively extinguished by the issuance of a final certificate. But
the challenges Boudreau raises on appeal do not allege injury arising from the second temporary
certificate, they allege injury resulting from the granting of the final certificate of compliance: his
“ongoing” “view of an unsightly parking lot.” Boudreau’s parking-lot view is a result of the final
certificate, not the second temporary certificate.
¶ 12. Boudreau’s appeal from the second temporary certificate, then, is appropriately
characterized as a collateral attack on the final order. See Collateral Attack, Black’s Law
Dictionary (11th ed. 2019) (“An attack on a judgment in a proceeding other than a direct appeal;
esp[ecially] an attempt to undermine a judgment through a judicial proceeding in which the ground
of the proceeding . . . is that the judgment is ineffective.”). Indeed, it is difficult to see how it could
be perceived otherwise when the statement of questions asks whether the final certificate is void.
See, e.g., Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142-43, 564 A.2d
1361, 1363-64 (1989) (holding exclusivity-of-remedy provision in § 4472 barred collateral attack
even where underlying decision was void ab initio).
¶ 13. We find no merit in Boudreau’s contention that because the MDRB indicated the
arborvitae screening was compliant in its decision on the second temporary certificate, he had
exhausted his administrative remedies relative to that issue. In support of this argument, he points
to In re Fairchild, in which we held that, although those challenging the decision of a zoning board
“must exhaust their administrative remedies, they do not have to do so twice.” 159 Vt. 125, 132,
616 A.2d 228, 232 (1992). His reliance is misplaced. We distinguished Fairchild from other
exclusivity-of-remedy cases under § 4472, because Fairchild involved parties who “did avail
themselves of § 4472 remedies only to find that the [t]own refused to enforce their court order.”
Id. No such circumstance is alleged here.
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¶ 14. Nor do we have the authority to exempt Boudreau from the requirements of § 4472
because, as he argues, raising the issue with the MDRB again would have been an exercise in
futility. Where “the Legislature specifically mandates, exhaustion is required.” Stone v. Errecart,
165 Vt. 1, 4, 675 A.2d 1322, 1325 (1996). It is only “[w]here the Legislature has ‘not clearly
required exhaustion’ ” that “ ‘sound judicial discretion governs,’ ” and “[t]he futility doctrine has
been adopted as part of that discretion to dispense with unnecessary exhaustion of administrative
remedies.” Id. (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by statute
on other grounds, 42 U.S.C. § 1997e, as recognized in Woodford v. Viet Mike Ngo, 548 U.S. 81,
84-85 (2006)). “It has no place . . . in the face of a clear legislative command that exhaustion is
required.” Id. Through § 4472, the Legislature clearly expressed its intent that parties exhaust
administrative remedies before zoning boards. We are therefore bound to effectuate that intent
without regard to Boudreau’s futility argument.
¶ 15. However, in the alternative, Boudreau contends that his statement of questions
preserved the issue of the final certificate’s validity such that his appeal of the temporary certificate
demonstrated his intent to appeal the final order. We first note that his reliance on the principle
that a statement of questions “functions like a pleading to limit the issues that are to be heard on
the appeal,” see V.R.E.C.P. 5(f), is based on a false syllogism: the fact that a statement of questions
limits the issues to be heard on appeal does not mean that issues beyond the scope of an appeal are
drawn within a court’s jurisdiction through their inclusion in a statement of questions. Nor are we
persuaded by Boudreau’s citation to In re Hignite, a case in which we construed a notice of appeal
which “referred somewhat ambiguously to the Board’s decision ‘with regard to the application’ ”
as an appeal of two separate rulings “in light of the statement of questions filed shortly thereafter.”
2003 VT 111, ¶ 9, 176 Vt. 562, 844 A.2d 735 (mem.). Boudreau’s notice of appeal clearly stated
that he was appealing the MDRB decision “dated September 20, 2018.” It would be illogical to
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construe this as a notice of appeal from a decision which had yet to be rendered at the time the
notice was filed.3
¶ 16. We thus conclude that Boudreau’s appeal was limited to only those issues
appropriately raised in connection with the second temporary certificate of compliance. And
because the temporary certificate was effectively extinguished by the issuance of the final
certificate, the environmental court correctly determined that all of these issues were moot. “[A]
case is moot when the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome.” Houston v. Town of Waitsfield, 2007 VT 135, ¶ 5, 183 Vt. 543, 944
A.2d 260 (mem.) (quotation omitted). “Thus, a change in facts or circumstance can render a case
moot if this Court can no longer grant effective relief.” Id. (quotation omitted). Boudreau asserts
no legally cognizable interest in the compliance status of the arborvitae screen in the period
between the ZA’s issuance of the second temporary certificate of compliance and the ZA’s
3
We note that subsections (a)(3) and (4) of Vermont Rule of Appellate Procedure 4,
governing premature appeals, have no application here. Under Rule 4(a)(3), “[a] notice of appeal
filed after the superior court announces a decision, sentence, or order—but before the entry of the
judgment or order—is treated as filed on the date the decision, sentence, or order is entered.”
V.R.A.P. 4(a)(3). However, appeals from a zoning board to the environmental division are
governed by Vermont Rule for Environmental Court Proceedings 5. V.R.E.C.P. 5(a)(1).
Thereunder, the Vermont Rules of Appellate Procedure govern only “so far as applicable.”
V.R.E.C.P. 5(a)(2), (h)(1)(A). By its own language, V.R.A.P. 4(a)(3) is “applicable” to
announcements of decision made by a “superior court,” not a local zoning board of adjustment.
And the Environmental Rules do not provide that references to the superior court in the Appellate
Rules should be construed as references to some other tribunal. Compare V.R.F.P. 8(g)(3)(A)
(providing that, subject to enumerated exceptions, the Rules of Appellate Procedure govern an
appeal from a magistrate to the family court, and “[a]ll references in the [Appellate Rules] to the
superior or district court shall be deemed references to the magistrate”), with V.R.E.C.P. 6(a)(1)
(“The words ‘court,’ ‘judge,’ or similar terms, when used . . . in provisions of the Vermont Rules
of . . . Appellate Procedure incorporated in these rules shall mean the Environmental Division
. . . .”). Assuming arguendo that the language from the MDRB’s decision on the second temporary
certificate concerning the arborvitae screen’s compliance constituted an announcement of
decision, Rule 4(a)(3) does not apply because it was not an announcement of decision by a superior
court. Rule 4(a)(4) provides that “[a] notice of appeal filed before the timely making or disposition
of any of the motions set forth in Rule 4(b) is effective when the motion is decided unless the
motion is withdrawn.” It is inapposite here because none of the motions enumerated in Rule 4(b)
were filed.
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issuance of the final certificate. Accordingly, the environmental court could not provide him with
relief, and correctly determined that it was barred from reviewing the issue.4 Holton v. Dep’t of
Emp’t & Training, 2005 VT 42, ¶ 14, 178 Vt. 147, 878 A.2d 1051 (“The mootness doctrine derives
its force from the Vermont Constitution, which, like its federal counterpart, limits the authority of
the courts to the determination of actual, live controversies between adverse litigants.”).
¶ 17. As we have repeatedly held, in the strongest terms, “[s]ection 4472 demonstrates
an unmistakable intent to limit zoning disputes to a well-defined procedure and to provide finality
at the end of proceedings.” City of S. Burlington, 171 Vt. at 590, 762 A.2d at 1231; see also In re
Collette, 2008 VT 136, ¶ 7, 185 Vt. 210, 969 A.2d 101 (“The finality of undisputed judgments is
no stranger to our law, which is replete with deadlines, and indeed is expressly favored despite
belatedly perceived flaws.”). Thus, “[f]ailure to file a timely appeal from a decision of the [zoning
board] deprives the environmental court of jurisdiction to consider that decision.” In re Ashline,
2003 VT 30, ¶ 8, 175 Vt. 203, 824 A.2d 579. None of Boudreau’s arguments are sufficient to
circumvent the exclusivity-of-remedy provision. “[A]lthough pro se litigants receive some leeway
from the courts, they are still ‘bound by the ordinary rules of civil procedure.’ ” Zorn v. Smith,
2011 VT 10, ¶ 22, 189 Vt. 219, 19 A.3d 112 (quoting Vahlteich v. Knott, 139 Vt. 588, 591, 433
A.2d 287, 288 (1981)). Nor can a pro se party evade the statutory procedure clearly set forth here.
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Boudreau contends that, even if the case is moot, it fits within the adverse-collateral-
consequences exception to the mootness doctrine because he “continues to have the negative
experience of a view of [Hopkins’] five[-]vehicle parking lot and the vehicles parked there due to
the inadequate arborvitae screening that was to shield his view of same.” However, this exception
is appropriately applied only “when negative collateral consequences are likely to result from the
action being reviewed.” In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 101 (1997) (emphasis added). As
a result, Boudreau’s collateral-consequences argument suffers from the same deficiency as his
others: it is not directed at the action being reviewed, i.e., the issuance of the second temporary
certificate. The exception does not apply because Boudreau does not allege negative collateral
consequences likely to result from the temporary decision he appealed. Paige v. State, 2013 VT
105, ¶ 13, 195 Vt. 302, 88 A.3d 1182 (“Absent a direct link between the challenged . . . orders and
the purportedly negative collateral consequences suffered by plaintiff, the collateral consequence
exception to mootness is inapplicable.”).
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We decline to depart from the longstanding principle that, in order to ensure repose and allow
permit-seekers such as Hopkins to proceed with confidence, rather than peril, Ҥ 4472
unequivocally forecloses” any collateral attack—whether a fundamental challenge to the agency’s
authority to act or a question of the sufficiency of an arborvitae screen—instead requiring these
arguments to be raised through “a timely, direct appeal.” Ashline, 2003 VT 30, ¶ 8. Boudreau
failed to file such an appeal from the final order, and the environmental court appropriately
concluded that it was therefore without jurisdiction to consider his arguments.
Affirmed.
FOR THE COURT:
Associate Justice
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