Appeal of Ghia

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of James Ghia }
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Docket No. 31-2-03
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Vtec
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Decision and Order
Appellant James Ghia appeals from a decision of the Development
Review Board (DRB) of the Town of Ludlow, affirming the
Administrative Officer=s1 decision that Appellant= s 1985 zoning permit
had lapsed. The appeal to this Court is an on-the-record appeal
pursuant to 24 V.S.A. ' 4471(a) and V.R.C.P. 76(e)(3), as the Town of
Ludlow has adopted and implemented the procedures necessary for
such appeals. Appellant is represented by Martin Nitka, Esq.; the
Town2 of Ludlow is represented by J. Christopher Callahan, Esq.
The documentary record was received by the court, as was a copy of
the audio tape of the DRB hearing. No transcripts were ordered by any
party of any portion of the hearing. The parties were given the
opportunity to submit written memoranda of law. Upon consideration
of the record and the parties= memoranda, the court determines that
the following facts are supported by substantial evidence in the record
as a whole, and concludes as follows.
In an on-the-record appeal, the factual findings of the administrative
body are given great weight, although they are not conclusive. The
court must determine if substantial evidence exists in the record as a
whole from which the factual findings of the DRB might reasonably be
inferred. See In re Petition of Town of Sherburne, 154 Vt. 596, 604-05
(1990); Appeal of Lussier and Noe, Docket No. 116-5-02 Vtec (Vt.
Envtl. Ct., Sept. 16, 2002). If there is conflicting evidence in the
record, the DRB is the body charged with weighing this evidence and
the court will not disturb its factual findings if supported by substantial
evidence in the record as a whole. See Appeal of Doyle, Docket No.
100-5-02 Vtec (Vt. Envtl. Ct., Jan. 21, 2003).
The 1979 Ludlow zoning regulations (applicable to Appellant= s 1985
permit) provided in ' 225 that no land or building development could
commence without a zoning permit issued by the Administrative
Officer. The issuance of the zoning permit by the Administrative Officer
was the final step in the municipal zoning approval process. Depending
on the particular project, other approvals were necessary prerequisites
to the Administrative Officer=s issuance of the zoning permit. For all
uses other than one- and two-family dwellings, the then-Planning
Commission first had to grant site plan approval before the zoning
permit could be issued by the Zoning Administrator. ' 275, and see,
e.g., Wesco, Inc. v. City of Montpelier, et al., 169 Vt. 520 (1999). For
conditional uses (' 250) or for extensions of non-conforming uses ('
255), the then-Zoning Board of Adjustment (ZBA) first had to grant
conditional use approval3 before the zoning permit could be issued by
the Zoning Administrator. For permitted uses that did not also require
prior site plan approval, under ' 245 the Administrative Officer could
proceed directly to issuing the zoning permit. The procedure described
in Section 250 was followed in 1985 for this application: a public
hearing was held by the then-ZBA, which granted conditional use
approval, on the basis of which a zoning permit was issued by the
Administrative Officer under ' 225.
In 1985, Appellant applied to the then-ZBA for approval of his plans to
build 24 condominium units in six buildings of four residential units
each, A to be built in 3 phases of 2 buildings (8 units) per year,@ on
property located off West Hill Road4 on Okemo Mountain in the Town
of Ludlow. The project was to be connected to the municipal sewer
system but to have an on-site water supply from a drilled well or wells.
The ZBA held a public hearing on February 27, 1985, at which it voted
to approve the project with certain conditions. It issued a written
Notice of Decision on April 19, 1985, which required Appellant to then
apply to the Administrative Officer for a zoning permit. Appellant
thereafter applied for and received a zoning permit from the
Administrative Officer. The zoning permit carries a date on its face of
February 27, 1985, referring to the date of approval of the project;
however, as the Notice of Decision did not issue until April 19, 1985,
we will give Appellant the benefit of that lapse of two months and treat
the date of the conditional use approval and the zoning permit as no
earlier than April 19, 1985.
Condition 1 of the ZBA= s 1985 conditional use approval required
construction to begin A within 120 days of granting of Conditional Use
Permit, or permit automatically becomes void.@ Condition 12 required
the project to be A in absolute conformance@ with the Town of Ludlow
Zoning Regulations. Section 225 of the Zoning Regulations in effect in
1985 required that A [a]ny zoning permit issued shall become void if
the work described therein is not commenced within a period of 120
days from the date of issuance and diligently prosecuted thereafter.@
In addition, Condition 14 of the ZBA= s 1985 conditional use approval
prohibited any additions, changes, modifications, or improvements to
the project without prior notification to the Zoning Administrator and A
prior written mutual agreement@ between the applicant and the
board. Condition 15 required the developer to notify the Zoning
Administrator upon completion and prior to occupancy. No construction
completion date was imposed in the ZBA decision.
Appellant did not appeal the 1985 conditional use approval or any of
the conditions imposed in it, and did not request extension of any of
the construction commencement dates found in the conditional use
approval decision or in ' 225 of the Zoning Regulations.
Appellant also applied in 1985 for Act 250 approval of the project; but
received an Act 250 permit on July 16, 1985 for only the first 12 units,
based on the amount of water available from the on-site well. The Act
250 permit required Appellant to apply for an Act 250 permit
amendment in the future to construct the remaining 12 units, if an
additional water supply could be found. The Act 250 permit required
the initial 12 units to be completed by October 15, 1986, but this
completion date was later extended upon Appellant= s attorney= s
request. Thus, as of July 16, 1985, Appellant knew that construction of
the second group of 12 units would require further engineering work
and a future application for a state water supply and wastewater
disposal permit and a future application for an Act 250 permit
amendment.
A period of 120 days from the April 19, 1985 zoning permit would
have expired on or about August 17, 1985. A period of 120 days from
the July 16, 1985 Act 250 permit issuance date would have expired on
or about November 13, 1985.
Construction did not begin on the initial 12 units until some time in
1987, as stated by Appellant= s attorney on the audio-taped record of
the DRB hearing in the present appeal and as found by the DRB
supported by substantial evidence in the record as a whole.
Construction of the initial 12 units, in three buildings of four units
each, was completed by some time in 1989.
Appellant sold the initial 12 units over the nine years from 1989
through 1998, but did nothing towards construction of the remaining
12 units during that period. At some time not earlier than 1998,
Appellant decided to start the process of obtaining the additional water
supply and applying for the state water and waste water permit and
Act 250 permit amendment for the remaining 12 units. He hired
hydrologists and engineers to find additional water; they had to
hydrofracture as well as to drill for water, and also extended the sewer
lines to the location of the new buildings. Between the engineering and
the state water supply and wastewater permitting process the process
was lengthy and expensive and cost Appellant approximately $40,000.
Appellant decided not to build the remaining units himself but instead
found a prospective purchaser in 2002 to buy the development rights
for the remaining 12 units and to apply for the Act 250 permit
amendment. At some time in mid-2002, the prospective purchaser
contacted the Administrative Officer regarding the status of the 1985
zoning permit and was notified that the permit was no longer valid.
This is the decision of the Administrative Officer apparently as
memorialized in Attorney Callahan= s October 9, 2002 letter to
Attorneys Nitka and Moore. Appellant appealed this determination to
the DRB, which upheld the determination that the 1985 conditional use
permit was void for failure to diligently prosecute the project, under '
225; Appellant has appealed the DRB= s decision to this court in the
present appeal.
In an on-the-record appeal, as in an appeal from a trial court to the
Vermont Supreme Court, legal questions are to be decided
independently by the reviewing court. See In re Petition of Town of
Sherburne, 154 Vt. 596, 604-05 (1990); Appeal of Lussier and Noe,
Docket No. 116-5-02 Vtec (Vt. Envtl. Ct., Sept. 16, 2002); Appeal of
Doyle, Docket No. 100-5-02 Vtec (Vt. Envtl. Ct., Jan. 21, 2003).
Appellant asks the Court to determine whether the 1985 conditional
use permit for construction of 24 condominium units lapsed for failure
to diligently prosecute its completion, whether expenditure of $40,000
for engineering and drilling costs to obtain a state water supply and
wastewater disposal permit for the remaining 12 units constitutes >
diligent prosecution,= whether the lack of a date certain in the permit
for completion of a project allows it to lapse if it has been commenced
within the required 120 days, whether ' 225 is inapplicable to
conditional use permits issued by the DRB, and whether ' 225= s >
diligent prosecution= requirement is unconstitutionally vague.
In 1985, Appellant= s 24-condominium project required and obtained
conditional use approval by the then-ZBA, under ' 250, as well as
obtaining a zoning permit from the Administrative Officer under ' 225
(and see last sentence of ' 250). Condition 1 of the ZBA= s 1985
conditional use approval decision required that A construction must
begin within 120 days of granting of Conditional Use Permit, or permit
automatically becomes void.@ Appellant did not appeal this action of
the then-ZBA, so that the 1985 conditional use approval and all of its
conditions became final. 24 V.S.A. ' 4472(d).
Appellant suggests that ' 225 applies only to > permitted use= zoning
permits issued under ' 245, thus making the A diligently prosecuted@
limitation in ' 225 of the ordinance inapplicable to his conditional use
approval. Appellant is correct that ' 225 only applies to zoning permits,
not to conditional use approvals, under the plain terms of the zoning
ordinance. See Levy v. Town of St. Albans Zoning Bd. of Adjustment,
152 Vt. 139, 143-44 (1989) (even if a zoning permit has expired, that
does not mean that the underlying conditional use approval has also
expired).
However, that conclusion does not protect Appellant= s 1985
conditional use approval from having become void due to failure to
commence construction as required by its Condition 1. Rather, the fact
that the > diligent prosecution= requirement of ' 225 only applies to the
Administrative Officer= s zoning permit means that, on the one hand,
Appellant= s 1985 zoning permit must be analyzed both for whether
construction was commenced in the 120-day period after the permit
was issued, and for whether the > work described therein= was
diligently prosecuted thereafter. On the other hand, Appellant= s
conditional use approval from the then-ZBA must be analyzed only for
compliance with each of its conditions, including Condition 1, as
Appellant did not appeal or challenge those conditions at the time they
were imposed.
Although the Act 250 permit is unrelated to the zoning permit, both
permits were required before Appellant could begin construction.
Appellant= s Act 250 permit was issued approximately three months
after the ZBA= s grant of conditional use approval and the
Administrative Officer= s issuance of the zoning permit (at the latest,
April 19, 1985). Under the rationale in Preseault v. Wheel, 132 Vt.
247, 254 (1974), Appellant could reasonably have argued that the
clock should not have started ticking for the municipal 120-day
commencement-of-construction requirement until the last permit
allowing construction (the Act 250 permit) was in place on July 16,
1985. Appellant should have gone to the ZBA for an extension of
the120 day requirement. However, even using the Act 250 permit
issuance date (as the argument most favorable to the landowner),
Appellant did not start construction on the initial 12 units within 120
days from July 16, 1985. The earliest date even suggested in the
record for commencement of construction on the initial 12 units was
some time in 1987*, more than a year beyond the expiration of the
120-day period.
Thus, Appellant= s 1985 zoning permit became void under ' 225
because construction did not begin by November 13, 1985, the latest
date arguable for the expiration of the 120-day commencement-of-
construction period. Appellant=s 1985 conditional use approval became
void under its Condition 1 for the same reason. Nevertheless, the first
12 units were built between 1987 and 1989, and no party argues5 that
they were constructed without a proper municipal permit.
Once construction was commenced some time in 1987, it was
>diligently prosecuted thereafter= as to the first 12 units, but only as
to the first 12 units. We note that Appellant is correct that the three-
year time frame in his application was never made a condition of the
1985 conditional use approval nor incorporated in the approval by a
requirement that the project be carried out as stated in the
application. Applicants are not bound by representations made at a
hearing unless the conditions are clearly stated in the board decision
or permit. See In re Kostenblatt, 161 Vt. 292, 298 (1994); see also In
re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978) (conditions
imposed by a zoning board must be expressed with sufficient clarity
and cannot incorporate by reference statements made by an applicant
at a hearing). Appellant is correct that the three-year time frame in
the application is not an enforceable time limit or expiration date on
the zoning permit, and is not dispositive as to whether the project was
> diligently prosecuted.=
Nevertheless, even if both approvals had not become void due to the
delayed commencement of construction, Appellant= s 1985 zoning
permit also became void as to the second group of 12 residential units,
for failure to > diligently prosecute= the construction of those
remaining 12 units or to seek a delayed date for those units keyed to
the acquisition of state water supply and wastewater permits or Act
250 permits for those units. Under any definition of > diligence,= the
failure to do any work towards finding additional water and designing
an approvable water supply and wastewater disposal system for the
second group of 12 units during at least the nine years between 1989
and 1998 does not constitute > diligent prosecution= of the
construction of the remaining 12 units.
It is important to note that Appellant= s conditional use approval for
the remaining 12 units did not become void for lack of diligent
prosecution; rather, it only became void for failure to commence
construction within the 120-day period required by its Condition 1.
That is, if Appellant had commenced construction of any of the 24
units in time, or had obtained an extension of the commencement
date, all that Appellant would now be required to do would be to obtain
a new zoning permit based on the 1985 conditional use approval. See,
Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139,
143-44 (1989). However, because the 1985 conditional use approval
had already become void for failure to commence construction within
the time required by its unappealed Condition 1, Appellant (or his
successor in interest) now must obtain both a new conditional use
approval (from the now-DRB) and must obtain a new zoning permit,
under the current edition of the Ludlow Zoning Regulations, before
construction of the remaining 12 condominium units. It is entirely
possible that Appellant or his successor may easily qualify for that
approval, and that it could go through the municipal process
reasonably quickly, but the application must be made in order for the
DRB to have the question before it.
Appellant argues that his expenditure of $40,000 for engineering and
well-drilling for the remaining 12 units constitutes diligent prosecution
of the project. Appellant knew that acquiring an additional water
supply was a prerequisite to obtaining the state water supply permit
and Act 250 permit for the second group of 12 units. This effort and
expenditure began at the earliest in 1998, thirteen years after the
issuance of the 1985 permit and nine years after the first 12 units
were completed. The DRB reasonably applied a test of A steady,
earnest and energetic effort@ to conclude that Appellant= s
expenditures in 1998 and later did not constitute > diligent
prosecution= of the work authorized in the 1985 permit. It is the time
frame, and not the amount of expenditure, that lacks diligence under
the terms of ' 225 in the present case.
This is not a case of revocation of a permit, which would require notice
to the landowner and a statutorily-authorized process to hear and
decide the revocation petition. Rather, it is the case of a permit
condition (regarding the conditional use approval), and a self-
executing ordinance provision (regarding the zoning permit), which
provide for the automatic voiding of a permit for a project not
commenced in the first four months after issuance. We do not address
whether such an automatic permit-voiding provision is bad municipal
policy, or whether it would be a better municipal practice to advise
landowners if and when the Administrative Officer believes that a
permit has become void through disuse or through operation of ' 225
or its current equivalent. The fact remains that in the present case it
was made a permit condition and was not appealed in 1985, and
therefore cannot be challenged, directly or indirectly, in the present
appeal. 24 V.S.A. ' 4472(d).
Appellant-Applicant also argues that ' 225 is unconstitutionally vague
by use of the term A diligently prosecuted.@ A statute or ordinance
may be ruled to be void for vagueness A when it either forbids or
requires the doing of an act in terms so vague that persons of common
intelligence must guess at its meaning and differ as to its application.@
Richards v. Nowicki, 172 Vt. 142, 150 (2001). In evaluating a void-for-
vagueness argument in a permit case, we must first recognize that
land use regulations involve an area of law in which some imprecision
and generality is necessary and inevitable, Rogers v. Watson, 156 Vt.
483, 491 (1991), and in which the landowner can seek clarification of
a statute= s meaning in the administrative process. Rogers, 156 Vt. at
491; and see In re S.M., 2003 VT 41, & 15 and Benning v. State, 161
Vt. 472, 484 (1994) (failure to seek guidance on applicability of
statute is fatal to facial challenge to statute). The test also is less strict
as applied to a civil or administrative statute rather than a criminal
statute. In re S.M., 2003 Vt. 41, & 15.
The requirement that a project be > diligently prosecuted= after having
been commenced within the first 120 days after the permit issuance is
not unconstitutionally vague. It allows for interruption of work on a
project due to seasonal and other construction considerations, such as
the need to hydrofracture to obtain sufficient water supply, common to
construction projects in Vermont, so long as the project applicant can
show diligent effort towards completion of the project. The DRB
applied a reasonable interpretation of the phrase as requiring A
steady, earnest and energetic effort@ on the part of the project
applicant. The phrase is A sufficiently clear to give a person of ordinary
intelligence a reasonable opportunity to know what is proscribed.@
Brody v. Barasch, 155 Vt. 103, 110-11 (1990). It is reasonable that a
gap of at least nine years without any work on a project did not
constitute diligent prosecution of that project.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that the
DRB= s decision is upheld that Permit No. 85/86-113 became void by
operation of Condition 1 of the conditional use approval and by
operation of ' 225 with regard to the zoning permit, and that Appellant
or his successors must apply for a new zoning permit to construct the
remaining 12 units approved in Permit No. 85/86-113.
Done at Barre, Vermont, this 19th day of November, 2003.
___________________
Merideth Wright
Environmental Judge
*
As corrected by order dated December 31, 2003
Footnotes
1.
No written ‘decision’ of the Administrative Officer appears in the record; the parties both refer
to an October 9, 2002 letter from Attorney Callahan to Attorneys Nitka and Moore essentially laying
out the issue regarding the permit expiration. The title of ‘Administrative Officer’ is also sometimes
known as ‘zoning administrator.’
2.
Attorney Callahan entered his appearance for the “Town and Village of Ludlow” but filed legal
memoranda on behalf of the “Ludlow Town and Village Development Review Board.” However, the
only proper municipal party under 24 V.S.A. § 4464(b)(2) is the municipality itself, not the
administrative body whose decision is being appealed. As the project appears to be located in the
Town of Ludlow, but not in the Village, we treat the Town as the proper party in the present case.
3.
Also referred to as a conditional use ‘permit’ but not to be confused with the zoning permit to
be issued by the Administrative Officer after all other approvals have been obtained. Compare, fourth
sentence of §250: (“permits are issued immediately after approval”) with final sentence of §250:
(“permits are issued by the Administrative Officer”); and see last paragraph of front side of ZBA’s
1985 Notice of Decision granting conditional use approval: “Please apply to the administrative officer
for a zoning permit.”
4.
The development is also known as the Westwoods or West Wood Condominiums, and now
appears to include a “West Woods” Road.
5.
While we do not reach the issue in this appeal, it is arguable that the Town would be estopped
from challenging the permit status of the initial 12 units.