Appeal of SOV/DOC Dept Buildings & General Services ( 2001 )

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of State of Vermont, }
Department of Buildings and }
General Services (re Northwest } Docket No. 269-11-00 Vtec
State Correctional Facility) }
}
Decision and Order on Appellant= s Motion for Summary Judgment
Appellant State of Vermont appealed from a decision of the Development Review Board (DRB
(formerly the Zoning Board of Adjustment - ZBA)) of the Town of St. Albans upholding two notices
of violation issued regarding the Northwest State Correctional Facility (NWSCF). Appellant is
represented by Assistant Attorney General William H. Rice, Esq.; the Town is represented by
David A. Barra, Esq. Appellant has moved for summary judgment that the notices of violation
should be overturned.
The following facts are undisputed unless otherwise noted.
The State owns and operates the Northwest State Correctional Facility (NWSCF) in St. Albans.
The facility was originally constructed in 1969, and was converted to a medium security facility in
1975. The Commissioner of Corrections has established work programs for offenders, of which
the Vermont Correctional Industries (VCI) is the subset of industrial work programs that take
place within state correctional facilities, under authority of 28 V.S.A. ' 751.
The VCI building at issue in this appeal was originally known as the wood shop when it was
constructed in 1982. It is a separate building from the automotive shop. The State obtained
approval from the ZBA for the construction of the 60' x 80' steel frame, concrete block building in
1982. It first contained a furniture manufacturing, furniture stripping, and furniture finishing shop.
The State obtained approval from the ZBA for the construction of an addition to the building in
1987. The State= s representative who presented the application to the ZBA at that time stated
that the proposal would not increase the number of inmates at the facility and would not increase
the amount of traffic. The furniture stripping operation was closed at some time before the
furniture manufacturing operation was moved to the correctional facility in Newport in August of
1996. A A pack and ship@ mailing operation was then established in the space. In November of
1999 the capacitor assembly operation at issue in this appeal was established in the VCI building,
in partnership with the York Capacitor Corporation. The A pack and ship@ operation continued to
operate in reduced space until January 2001, when it was shut down.
In connection with the proceedings to obtain zoning and planning permits for another building, the
automotive shop, in 1995, the Planning Commission requested the State to file a ten-year Master
Plan for the NWSCF. The State did file a Master Plan in 1995 for the NWSCF.
The steps of the capacitor assembly operation performed at the NWSCF VCI building involve
manual assembly and electronic spot welding of components and use of a pneumatic > spinning=
machine to close the cans which contain the assembled components. The work is performed
seated at workstations, supervised by a state employee and by a York Capacitor Corporation
employee. Other state security staff visit the building on a regular basis.
The Zoning Administrator issued two notices of violation to the State of Vermont: one on July 28,
2000 for A conducting a production line in conjunction with York Capacitors of Winooski at the
Northwest Correctional Facility without obtaining approval from the Zoning Board of
Adjustment;@ and a second one on August 3, 2001 for conducting the same activity A without
obtaining [site plan] approval from the St. Albans Town Planning Commission,@ and without
submitting an updated Master Plan.
In the appeal of those notices of violation to the ZBA/DRB, the Town charged the State a $100
filing fee, and required that the State notify adjoining landowners by certified mail of the hearing
scheduled on the appeal.
The Town has authority to adopt zoning regulations except as specifically limited by the state
zoning enabling statute. 24 V.S.A. ' 4401(b). Section 4409 is entitled A Limitations@ and provides
with respect to state facilities such as the NWSCF that A unless reasonable provision is made for
the location of@ such facilities in the zoning bylaw, state facilities A may only be regulated with
respect to size, height, bulk, yards, courts, setbacks, density of buildings, off-street parking and
loading facilities and landscaping or screening requirements.@
As the Town of St. Albans has not made specific provision for the location of state facilities in its
zoning bylaw, the aspects of the NWSCF which the Town may regulate are the listed physical
and external attributes of the facility, not its internal use or occupancy. See, In Re: Northwest
State Correctional Facility, Docket No. S 377-94 Fc (Franklin Superior Ct., March 15, 1995).
Of course, as discussed in City of S. Burlington v. Vermont Dept. of Corrections, 11 Vt. L. Week
219 (2000), the State would be bound by any conditions in any local permits it did not appeal,
even if the municipal body had lacked jurisdiction to issue those local permits at the time.
However, in the present case, none of the local permits applicable to the NWSCF requires the
State to take the actions that are the subject of the two notices of violation.
The VCI building in which the capacitor assembly line is run was formerly known as the wood
shop building. The State obtained zoning approval in 1982 to construct that building, and
obtained zoning approval in 1987 to construct an addition to it. The 1982 application only
describes the proposal as to A erect industrial building at Correctional Center,@ without
specifying or committing the State to the particular type of industrial process to be proposed in the
building. Both approvals fell within the scope of 24 V.S.A. ' 4409. The parties have not provided
any zoning permits or written decisions of the then-ZBA showing any conditions clearly placed on
either of these approvals. But even if the minutes of the two meetings at which the approvals
were granted can be read as establishing any conditions at all, neither the 1982 nor the 1987
minutes can be read to require the State even to report to the Town any future changes in the
1
type of industrial process to be carried on in the building, much less to require the State to apply
for approval of any future change in the type of industrial process that would be carried on within
the building. Accordingly, no statutory provision or unappealed permit requires the State to apply
for approval for a change in the industrial process to be carried on in the VCI building. Similarly, in
the absence of any new construction, or any change that would implicate the parking and loading
facilities under ' 4409, no statutory provision or unappealed permit requires the State to apply for
site plan approval for a change in the industrial process to be carried on in the VCI building.
There is no question that the State had provided the Town with a Master Plan for the NWSCF on
May 2, 1995. However, nothing in the Town zoning regulations, state statute, or any meeting of
the Planning Commission or ZBA, discloses any authority for the Town to require the State to
produce such a plan. Rather, it appears from allusions to the history of the Master Plan in the
minutes of the Planning Commission meeting of June 6, 1995, that the Town had requested and
the State had provided a Master Plan for the facility. In the course of approving the automotive
shop in its meeting of that date, the Planning Commission appears to have adopted a motion
stated as follows:
[T]he state will periodically update the submitted master plan, on an annual basis or more often if
program growth, mission changes or major renovations are called for.
The proponent of the motion characterized it as: A [t]hat= s just asking the state to give us a
revision to the master plan,@ and later stated: A If we don= t ask for this, we won= t get anything
from them for ten years.@
The adopted motion appears to be merely a statement of intent: that the state will provide these
updates. It is not stated as a requirement imposed by the Town as a condition of the construction
of the automotive shop. Further, even if that statement can be characterized as a condition of
construction of the automotive shop, nothing about it requires an update of the master plan
whenever the State makes a program change to the choice of industrial process or processes to
be carried on in the VCI building. Accordingly, summary judgment must be granted to the State
on Questions 1, 2 and 11 of its Statement of Questions.
Just as the Court cannot charge the State a filing fee, the town cannot charge the State a fee for
appealing a notice of violation to the ZBA or DRB, unless the State has made itself subject to
such a fee, as in making payments in lieu of taxes. The State has not made itself subject to local
zoning fees, and therefore summary judgment must be granted to the State on Question 9 of its
Statement of Questions.
On the other hand, under 24 V.S.A. ' 4467 the board is only required to give public notice of the
hearing, and to mail to the appellant a copy of that notice prior to the hearing date. Adjoining
property owners are not required under ' 4467 to be personally notified by the board. It is within a
town= s general power in administering its zoning regulations to require a project applicant or
appellant to provide such notice to adjoining property owners.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant
State= s Motion for Summary Judgment is GRANTED on Questions 1, 2, 9 and 11 of the
Statement of Questions. The Town may regulate the NWSCF with respect to the attributes listed
in 24 V.S.A. ' 4409, but it may not regulate the use to which those buildings are put unless a
change in use changes those attributes (e.g., parking and loading requirements). Further,
although the State has provided a Master Plan in 1995 for the NWSCF, and may have provided
updates to it since that time, it is not required to do so by any Town regulation, state statute, or
unappealed permit related to the VCI building. Both Notices of Violation are hereby vacated,
concluding this appeal.
th
Done at Barre, Vermont, this 19 day of November, 2001.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
These minutes may be contrasted with the 1995 approval by the then-ZBA of another
building, the automotive shop, which was approved “with the provision that its use be forever
limited to automotive training or training of any other type, and with no other use allowed.”