Village of Woodstock v. Bahramian

VILLAGE_OF_WOODSTOCK_V_BAHRAMIAN.91-017; 160 Vt. 417; 631 A.2d 1129


 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 of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-017


 Village of Woodstock                         Supreme Court

                                              On Appeal from
      v.                                      Windsor Superior Court

 Bijan Bahramian                              December Term, 1992



 Matthew I. Katz, J.


 Harry A. Black of Black Black & Davis, White River Junction, for plaintiff-
    appellee

 William A. Hunter, Ludlow, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.




      GIBSON, J.   Defendant Bijan Bahramian appeals from a decision of the
 superior court, which denied his application for approval to renovate a
 building in the Village of Woodstock, issued an injunction mandating removal
 of some renovations, and imposed fines for making renovations prior to
 obtaining a permit.  He raises six issues on appeal: (1) whether the court
 erred by failing to conclude that the permit requested was granted by
 operation of law; (2) whether the court applied the correct criteria in
 reviewing defendant's application; (3) whether the court's review should
 have been limited to the four items defendant raised in his appeal; (4)
 whether the court erred in finding that defendant had violated the
 preliminary injunction and therefore improperly increased the fines imposed;
 (5) whether the design review permit procedure is unconstitutionally vague
 and therefore invalid; (FN1) and (6) whether the zoning ordinance was properly
 enacted.  We hold that the court's findings do not support its conclusions
 under the criteria listed in the planning ordinance and, therefore, vacate
 the order to remove specific renovations and remand for review under the
 correct criteria.  We affirm the fines imposed because we find no error in
 the court's conclusion that defendant violated the preliminary injunction.
      During the summer and fall of 1986, defendant was renovating a building
 he owned in the Village of Woodstock.  The building was located in a design
 control district created under 24 V.S.A. { 4407(6).  Pursuant to Village
 zoning regulations, constructing or altering the exterior of a building in
 this district is prohibited without first obtaining design plan approval
 from the planning commission.  Defendant obtained a permit, dated August
 18, 1986, authorizing specified renovations to his building.  On November 7,
 1986, he filed a new application for a permit with the administrative
 officer of Woodstock, requesting approval of eight amendments to his August
 permit.
      The Woodstock design review board recommended denying approval for all
 eight of the amendments on November 21, 1986. (FN2) The planning commission's
 decision was issued on December 19, 1986, granting design plan approval for
 all the proposed alterations except four: (1) rose window on north side, (2)
 rose window on east side, (3) shed dormer on west side, and (4) dormer
 fanlight windows on the east side.  Defendant appealed this decision to the
 superior court.
      In the meantime, defendant had continued renovating the house
 throughout the fall.  The Village of Woodstock filed a complaint against
 defendant in superior court on December 3, 1986, seeking to enjoin any
 further unauthorized renovations on the building.  The court issued a
 preliminary injunction on February 2, 1987, based upon a stipulation of the
 parties, enjoining defendant from doing "any further exterior work on [the
 house], for which defendant ha[d] no permit."  In April 1988, the court
 granted a motion by the Village consolidating the action for injunction and
 the appeal from the decision of the planning commission.
      After a de novo trial, the court issued findings and a notice of
 decision, and ordered defendant to remove the four alterations that were not
 approved by the planning commission as well as two other alterations the
 commission had approved.  The court also imposed fines for altering the
 building prior to obtaining a permit and for violating the preliminary
 injunction.  Following the court's notice of decision, defendant moved for
 relief from judgment on the ground that the permit had been deemed granted
 by operation of law prior to the appeal because the town had failed to issue
 its decision within the time specified by law.  The court denied the motion.
 Final judgment was entered on September 27, 1990, and defendant appealed to
 this Court.
                                     I.
      Defendant first argues that the court erred in denying his motion for
 relief from judgment because the permit had been granted by operation of
 law.  According to defendant, he filed his application for amendments to the
 August permit on September 17, 1986, and the planning commission did not
 issue a decision until December 17, 1986.  Under the Village of Woodstock
 zoning ordinance, the design review board must issue recommendations on an
 application within twenty-one days of filing, and the planning commission
 must issue a decision within fourteen days from the date the recommendations
 are made.  Failure to issue a decision within the time specified consti-
 tutes an automatic granting of the application.  Village of Woodstock
 Zoning Ordinance { 4.103.  Defendant maintains that the superior court had
 no jurisdiction over his appeal because the permit had been granted by
 operation of law when the planning commission failed to issue a timely
 decision.
      We disagree with defendant's jurisdictional challenge because we
 conclude that the facts on which it is based are incorrect.  The application
 at issue was not filed on September 17, 1986, (FN3) as he asserts, but on
 November 7, 1986.  The design review board issued timely recommendations on
 November 21, 1986.  Pursuant to an agreement executed by the commission and
 defendant on November 26, 1986, the time limit for the commission's
 decision was extended to December 24, 1986.  The commission issued a timely
 decision on December 19, 1986.
                                     II.
      Defendant argues second that, in evaluating his application, the court
 did not apply the correct criteria as provided in the Village of Woodstock
 Zoning Ordinance. (FN4) The ordinance lists specific design criteria that the
 commission must consider before granting design plan approval, including a
 comparison of proposed height, setback, proportion, pattern, materials,
 architectural features, and roof shape, in relation to adjacent buildings or
 those in the immediate area.  Id. { 4.104.  The commission is also required
 to consider lines of continuity along the street and the direction of the
 front facade.  Id.
      Under the ordinance, "[i]t is not intended that the details of old
 buildings be duplicated precisely, but they should be regarded as suggestive
 of the extent, nature and scale of details that would be appropriate on new
 buildings or alterations."  Id.   The commission should not insist that new
 buildings or alterations copy existing architectural styles and decorative
 details.  Id.   Nor should it be overly restrictive regarding plans for
 buildings of little historic value, or not highly visible from a public
 street, unless alteration "would seriously impair the historic or
 architectural value of surrounding buildings or the surrounding area."  Id.
      Defendant argues that, under the ordinance, his proposed alterations
 should have been reviewed in terms of their impact on the neighborhood.  The
 court, however, denied approval primarily on the ground that, in the
 aggregate, the proposed alterations turned a plain, utilitarian structure,
 built for middle or working class occupancy, into a high style building for
 the upper class.  Defendant maintains that the court erred in considering
 the historic origins of the building, the character and authenticity of the
 proposed alterations, and the functional utility of the proposals because
 the ordinance does not set out any such criteria.  We agree.
      The court denied approval for six proposed alterations, the same four
 alterations denied by the commission plus the stacked bay windows on the
 east side and the pent roof on the ell.  The court made over two pages of
 findings regarding the two proposed rose windows.  It found that there were
 no other rose windows in the design control district, but that there were
 some round windows.  It also found that, although the commission had
 approved a rose window for the south side of the building, the windows
 proposed for the north and west sides would be much more visible to the
 public.  Both these findings are relevant under the ordinance, which
 requires consideration of architectural features, such as windows,
 prevailing in the immediate area and consideration of the visibility of the
 proposed alteration.
      The court, however, made a number of other findings regarding the rose
 windows, which were not required under the ordinance.  In particular, the
 court found that round and rose windows typically appear on public buildings
 or homes of wealthy people.  Consequently, it found that the proposed rose
 windows would constitute a complete break with the working class origins of
 defendant's building.  There is nothing, however, in the ordinance to
 indicate that alterations must be authentic to the historical origin of the
 building to obtain design approval.  The court concluded that the windows
 were "out of place."  In view of the court's findings, we are unable to
 determine whether the windows are "out of place" because they are not
 consistent with the historical origins of the building or because they are
 not consistent with the architectural features in the immediate area.
      Regarding the proposed stacked bay windows on the east side, the court
 found that there are a number of such windows in the design control
 district, but that, unlike those proposed, they generally extend down to
 the ground.  Nevertheless, the court noted several in the district that did
 not extend to the ground and concluded that they were not out of character
 to the area.  The court denied approval, however, apparently because they
 were "not particularly necessary" and did not "add appreciable room to the
 interior."  There is no legal basis for consideration of such factors.
      The court also denied approval for the shed dormer on the west side.
 It found that there were several shed dormers in the district, but that they
 were relatively recent additions that predated the Village ordinance, and
 that shed dormers are not authentic to the period in which the house was
 built.  It noted, however, that shed dormers are an important source of
 interior space.  It also found that the addition of the dormer significantly
 increased the window-to-clapboard ratio on the west side of the building,
 substantially changing the original structure.  Again, we are unable to
 discern whether the court's denial of approval was based on the criteria set
 out by law or its consideration of other factors.
      The court denied approval for the fanlight windows on the gable dormers
 because they were "very high-style," and, therefore, "inappropriate in the
 context of a simple frame house."  The court found that the cumulative
 effect of "yet one more cute addition" eroded all authenticity.
 Authenticity is not a criterion listed in the ordinance.  The court made no
 findings regarding fanlight windows in the immediate area.  In considering
 the pent roof, the court made only cursory findings, stating, "It serves no
 actual function and could be cut off.  Cutting it off would make the raised
 roof something less of an appendage."  Again, the court made no findings
 regarding the criteria listed in the ordinance.
      We conclude that the findings do not support the court's denial of
 approval for the six proposed alterations.  Although some findings pertain
 to the legal criteria as set out in the design plan amendments to the
 Woodstock ordinance, significantly more findings pertain to factors that
 should not have been considered by the court in determining whether to grant
 design plan approval.
                                    III.
      Although we vacate the court's decision on design plan approval for
 failure to make findings under the legal criteria, we also address
 defendant's third issue because it is likely to be raised again on remand.
 Defendant contends that the court erred in concluding that the entire
 application was before it on appeal.  He maintains that the court's review
 should have been limited to the four items for which the commission denied
 approval, which he appealed.  Because the Village did not file a cross-
 appeal, he argues that the items approved by the commission could not be
 reconsidered by the superior court.
      The court concluded that the entire application was before it for
 review because, under 24 V.S.A. { 4472, an appeal to superior court is de
 novo.  The court also reasoned that, because design review was a
 discretionary area, "it would be foolish to say that consideration of any
 element must be accomplished without consideration of others."  The court
 then denied two proposed alterations that had previously been granted by the
 commission, in addition to denying approval for the four alterations
 rejected by the commission.
      In support of the court's authority to consider the entire application
 on review, the Village quotes In re Torres, 154 Vt. 233, 236, 575 A.2d 193,
 195 (1990), stating that "whatever the zoning board of adjustment or the
 planning commission might have done with an application properly before it,
 the superior court may also do if an appeal is duly perfected."  This
 language, however, does not support the Village's position.  As stated in
 Torres, the court has no power where appeal is not perfected.
      We agree with defendant that the court's review was limited to the
 four items raised in the notice of appeal.  Defendant appealed the commis-
 sion's decision only to the extent that it denied four proposed alterations.
 The Village did not file a cross-appeal.  Accordingly, the alterations that
 were approved by the commission were not properly before the court.  See
 Cliche v. Fair, 145 Vt. 258, 263-64, 487 A.2d 145, 149 (1984) (although
 amount of damages awarded was less than fair, Court will not sua sponte
 modify amount where plaintiff did not cross-appeal).
                                     IV.
      Defendant argues that the court erred in concluding that he had
 violated the preliminary injunction, and therefore improperly increased the
 fine on this basis.  The court found that defendant began making renovations
 on his building prior to obtaining the permit on December 19, 1986, and
 imposed a fine of $50 per day for seventy-two days ($3,600) for these
 violations under 24 V.S.A. { 4444(a).  Defendant does not challenge this
 fine.  The court also imposed a fine for renovations conducted without a
 permit in the period following December 19, 1986.  Because defendant made
 relatively few renovations after this date, the court determined that a
 fine of $1 per day was appropriate.  It increased the fine to $5 per day,
 however, because defendant also violated the injunction during this period.
      Defendant disputes the court's conclusion that he violated the
         preliminary injunction, which provides, in part, that
         the defendant, Bijan Bahramian, is hereby strictly
         restrained and enjoined from doing or causing to be done
         any further exterior work on a house located on Church
         Street Extension, in the Village of Woodstock, Vermont,
         for which defendant has no permit from the Woodstock
         Planning Commission.  (Emphasis added.)
 He maintains that no work that required a permit was done on the house after
 December 19, 1986, and claims that none of the three acts found by the court
 to have occurred after the injunction issued constitutes a violation of the
 injunction.
      We reject defendant's argument because it is contrary to the plain
 language of the order, which prohibited any exterior work on the house for
 which defendant had not received a permit.  There is no exception for
 exterior work that does not require a permit.  Moreover, we do not accept
 defendant's contention that no permit was necessary to move the door because
 the move was only temporary.  There is no finding and defendant makes no
 reference to evidence that supports this assertion.  We also agree with the
 trial court that removal of the chimney was a violation of the injunction,
 although the ordinance does not require a permit to make alterations to
 chimneys.  We find no error in the court's conclusion that defendant
 violated the preliminary injunction, nor in its consideration of this factor
 in determining an appropriate fine.
                                     V.
      Defendant contends finally that the Village of Woodstock Zoning
 Ordinance was not properly adopted.  The design review amendments became
 effective January 24, 1983; therefore, defendant's challenge is untimely.
 24 V.S.A. { 4494 (challenge for purported procedural defects must be made
 within two years of date rule went into effect).
      The order to remove certain alterations on defendant's building is
 vacated.  The case is remanded to the superior court for design plan review,
 under the correct criteria, of the four alterations for which the planning
 commission denied approval.  The fines imposed are affirmed.



                                    FOR THE COURT:



                                    _________________________________
                                    Associate Justice




FN1.    We do not reach the constitutional issue because we decide that the
 court's design plan review was improper on other grounds.

FN2.    The board also noted four other changes to the design drawing
 submitted with defendant's November application, but recommended approving
 each of these minor alterations.  Hearings before the planning commission
 took place on November 26 and December 10 and 17.  On the last day of
 hearings, defendant amended his application by requesting approval for the
 four changes noted by the design review board and for skirting for the
 stacked bay windows already requested for the east side of the house.

FN3.    Defendant did file an application to amend the August permit on
 September 17, 1986, but this application only requested approval to build
 two stacked bay windows on the east side of the house.  After review by the
 design review board, defendant was required to revise drawings for
 presentation to the planning commission.  Defendant failed to submit any
 revised drawings, and the record shows no indication that he pursued this
 application.  Rather, he filed a new application on November 7, 1986,
 requesting approval for the stacked bay windows on the east side and seven
 other alterations.  This is the application that is at issue in this
 appeal.

FN4.    He also claims that the court's findings are not supported by the
 evidence.  We do not address this claim because it is not supported by
 argument or reference to any finding that is unsupported.  Rather, defendant
 argues that the court applied the wrong criteria, and thus, made findings
 that do not support its conclusions under the correct criteria.