In re Fuller Building Permit

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2014-050
SEPTEMBER TERM, 2014
In re Fuller Building Permit } APPEALED FROM:
}
}
} Superior Court,
} Environmental Division
}
} DOCKET NO. 141-10-13 Vtec
Trial Judge: Thomas S. Durkin
In the above-entitled cause, the Clerk will enter:
Neighbor Elizabeth Armstrong appeals pro se from the environmental division’s
dismissal of her zoning appeal as improperly and untimely filed. She asks this Court to impose a
stay of the ruling below. We affirm the court’s decision and deny the request for a stay as moot.
Neighbor raises numerous arguments attacking the merits of a zoning permit issued to
Ellen and Bradbury Fuller and other matters related to its issuance. The threshold question for
this Court, however, is whether the environmental division erred in dismissing neighbor’s
appeal. On this issue, the record indicates the following.1 The Fullers applied for a zoning
permit in July 2013. They indicated that they sought a building/development permit to remove
the current home from their property and rebuild a year-round home; they also sought permission
to build a detached 10x20 single-story shed. The town zoning administrator approved their
permit request on August 9, 2013. The town determined that the permit application was
complete and in compliance with the provisions of § 6.3 of the town’s zoning regulations. The
town averred that it posted copies of the permit in the town clerk’s office on August 12, 2013 in
accordance with Town of Addison Zoning Regulation § 6.3(C)(4). It also represented in a sworn
statement to the superior court that in accordance with 24 V.S.A. § 4449(b)(2) it mailed copies of
the permits to the Fullers with instructions to post the copies in a prominent location on their
property for fifteen days.
On October 28, 2013, neighbor filed an appeal with the environmental court, alleging
improprieties in the way that the Fuller permits were issued, including insufficient notice to her,
1
Our review is confined to the record presented below, and we have not considered
materials submitted by neighbor that are outside of this record. See Hoover v. Hoover, 171 Vt.
256, 258 (2000) (Supreme Court’s review on appeal is confined to the record and evidence
adduced at trial; Court cannot consider facts not in the record). Given this limited scope, we
deny as moot the Fullers’ motion to strike certain materials from neighbor’s brief.
as an abutting property owner. The court agreed with the town and the Fullers that the appeal
had to be dismissed because it was improperly and untimely filed.
The environmental division concluded that notice of the issued permits was posted and
no party had filed an appeal of the Fullers’ zoning permit with the town’s development review
board within the required time period. Indeed, it noted that as of the date of its January 2014
dismissal order, no evidence had been submitted to show that an appeal had ever been filed with
the DRB. The court explained that a party wishing to dispute a zoning permit issued by a zoning
administrator must file a timely appeal with the appropriate municipal panel, here the
Development Review Board (DRB). 24 V.S.A. § 4465(a) (requiring that appeal from “any
decision or act taken by [] administrative officer” be filed with appropriate municipal panel
“within 15 days of [] date of [] decision or act”). When a party fails to file a timely appeal with
the appropriate municipal panel, that party is “bound by that decision or act of that
officer . . . and shall not thereafter contest, either directly or indirectly, the decision or act.” Id.
§ 4472(d). The court concluded that neighbor was required to file a timely appeal with the DRB
if she wished to contest the permit issued by the zoning administrator to the Fullers. Her failure
to do so foreclosed her right to challenge that permit, “either directly or indirectly.” Id. The
court thus dismissed the appeal.
We agree with the superior court, in part. The environmental division of the superior
court is authorized to hear appeals from a municipal development review board. 24 V.S.A.
§ 4471; 4 V.S.A. § 34. In this case, neighbor does not deny that she has not appealed from a
decision of the development review board. She contends on appeal that she sought review of the
permit from the development review board, but that she then filed an appeal with the superior
court when the DRB refused to act. She did not present to superior court any evidence of a
refusal to act on the part of the DRB, and we cannot now consider on appeal records, not
submitted below, that she contends support her claim. If it is the case that she sought review and
the DRB has not ruled on the permit at issue, this case was not ripe for review by the superior
court when neighbor filed her appeal, or even when the superior court issued its entry order
dismissing the appeal. On that basis alone, we affirm the superior court’s dismissal.
We do not reach the question of whether neighbor filed a timely appeal with the DRB—
or whether neighbor filed an appeal with the DRB at all. Neighbor argues that she did file an
appeal with the DRB, and that her appeal was timely because she had not received the notice due
her under the applicable rules given the true nature of the permit at issue. In particular, she
argues that the Fullers were required to obtain a conditional use permit, which would have
required a warned public hearing and direct notice to her as an adjoining landowner. See 24
V.S.A. § 4464(a); see also Town of Addison Zoning Regulations §§ 5.1-5.2. The town zoning
regulations state that “[t]he conversion of a seasonal dwelling (camp) to a year-round dwelling
within the Shoreland Residential or Recreation Districts shall be subject to conditional use
review,” and subject to other additional requirements as well. Town of Addison Zoning
Regulations § 3.2(B). Neighbor contends on appeal that the zoning permit issued by the Town
was never properly posted by applicants. The town suggests otherwise, arguing that even if
neighbor’s appearance before the DRB constituted an appeal, it was untimely.
We need not decide here whether the notice provided to neighbor was inadequate,
whether there is an appeal pending before the DRB, and, if so, whether neighbor filed her appeal
2
request timely. The evidence presented to the superior court is inadequate to enable us to answer
these questions.2
The environmental division correctly concluded that it lacked jurisdiction over neighbor’s
appeal of this particular permit because the DRB has not ruled on the matter. See 24 V.S.A.
§ 4472(d). Because the environmental division lacked jurisdiction over neighbor’s appeal, it did
not reach the merits of her claims concerning the permit and other matters. As we affirm the
dismissal, we similarly do not reach these issues.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
2
Given our understanding that applicant has subsequently applied for and obtained a
conditional use permit for the conversion of the house to a year-round dwelling, it seems likely
that further proceedings before the DRB in connection with the initial permit will be moot. We
do not, however, rule on that question.
3