In re Reynolds

In re Reynolds (98-580); 170 Vt. 352; 749 A.2d 1133

[Filed 11-Feb-2000]


       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. 98-580


In re Appeal of Philip A. Reynolds	         Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 December Term, 1999


Merideth Wright, J.


Philip A. Reynolds, Pro Se, South Hero, Plaintiff-Appellee.

Steven F. Stitzel of Stitzel, Page & Fletcher, P.C., Burlington, for
  Defendant-Appellant.

Elizabeth Turner and Gilbert Whittemore, Law Clerk, Montpelier, for
  Amicus Curiae Vermont League of Cities and Towns.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   The Vermont Environmental Court, on motions for summary
  judgment,  reversed an action of the seven-member Planning Commission of
  the Town of South Hero  approving an application for a subdivision
  amendment on a vote of three in favor, two against,  one abstention, and
  one member absent.  Philip Reynolds, a neighbor to the development, 
  appealed the issue to the environmental court and is appellee here. 
  Appellant, Town of South



  Hero, claims the court erred in holding that the common law rule regarding
  the effect of an  abstention does not apply in Vermont. (FN1)  We disagree
  and affirm.

       The Planning Commission of the Town of South Hero is composed of seven
  members, six  of whom were present for the hearing and deliberation on the
  project at issue in this case.  The  question was posed whether the project
  should be approved.  Of the six members present, three  voted in favor of
  the application, two voted against it, and one member abstained.  The
  governing  statute in Vermont provides that: "When joint authority is given
  to three or more, the concurrence  of a majority of such number shall be
  sufficient and shall be required in its exercise."  1 V.S.A.  § 172.  The
  number of concurring votes required is a majority of all the members of the
  board - in this case four.  See In re Lionni, 160 Vt. 625, 626, 648 A.2d 832, 833 (1993) (mem.).  

       The Town argues that in these circumstances a majority of the board
  approved the project,  even though it received only three affirmative
  votes, because, according to the common law,  abstentions are counted as
  acquiescence with the majority of those members voting.  See, e.g., 
  Prosser v. Village of Fox Lake, 438 N.E.2d 134, 136 (Ill. 1982) (rule that
  abstention constitutes  acquiescence with majority of those who did vote
  developed from common law).  It argues that  the common law applies because
  Vermont has adopted "[s]o much of the common law of England  as is
  applicable to the local situation and circumstances,"1 V.S.A. § 271, and
  that when properly  interpreted, § 172 is not inconsistent with the common
  law rule on the effect of an abstention.


 

       At the outset, the Town acknowledges that language in a number of
  decisions of this Court  is against it, but argues that the language is
  dicta or that it addressed very different circumstances.  The main case it
  distinguishes on this basis is State v. Vermont Emergency Board, 136 Vt.
  506,  394 A.2d 1360 (1978) in which we decided that the emergency board had
  not "met", in violation  of the open meeting law, where two members of the
  five-person board were present in person and  two were present only by
  telephone.  See Vermont Emergency Bd., 136 Vt. at 508, 394 A.2d  at  1361. 
  In reaching the decision, this Court examined § 172 and defined
  "concurrence" to mean  "physical presence, not merely a state of mind, plus
  an expressed assent."  Id. at 508, 394 A.2d   at 1361-62.  Obviously, if the
  requirement of "expressed assent" controls, the Town cannot  prevail
  because an abstention is not "expressed assent."  The Town urges us to
  ignore that  language because the issue in Vermont Emergency Board turned
  on what would be considered  presence at a meeting, and not what was
  required to show concurrence in a result.  See also In  re Villeneuve, 167
  Vt. 450, 459, 709 A.2d 1067, 1072 (1998) (section 172 requires "that a 
  majority of the members of an administrative board must vote for a result
  for the vote to be  effective"); Town of Fair Haven v. Stannard, 111 Vt.
  49, 53, 10 A.2d 214, 215-16 (1940) (statute  requires only "cognizance of,
  and consent to, the proposed course of action....  In this the  concurrence
  of the majority is sufficient").

       Also against the Town is In re Application of 66 North Main Street,
  145 Vt. 1, 481 A.2d 1053 (1984), overruled on other grounds by In re
  Newton Enterprises, 167 Vt. 459, 708 A.2d 914  (1998), in which three
  members of a five-person zoning board were present for review of a 
  variance application and two voted against it, with one abstaining.  We
  held that, because only  two members signed the order denying the variance,
  the order was patently defective under the 

 

  statute.  See Application of 66 North Main Street, 145 Vt. at 3, 481 A.2d 
  at 1055. (FN2)  This  case necessarily adopts a construction § 172 directly
  contrary to that urged by the Town.

       The best that can be said for the Town's position in light of the
  above decisions is that we  have never explicitly examined their argument
  that an abstention should be counted as a vote with  the majority of those
  who vote.  Accordingly, we will reach the Town's argument, but with the 
  understanding that its position must be strong enough for us to reject the
  application of stare  decisis and overrule past precedent. As noted above,
  the nucleus of the Town's argument is that the common law counted an 
  abstention as concurring with the position of the majority of members who
  voted.  It invokes the  statutory construction maxim that rules of the
  common law should not be changed by implication  nor overturned except by
  clear and unambiguous language.  See Estate of Kelly v. Moguls, Inc.,  160
  Vt. 531, 533, 632 A.2d 360, 361-62 (1993).  Consistent with this maxim, it
  urges us to hold  that an abstention is a "concurrence" in the majority
  decision as that term is used in § 172.

       We accept the logic of the Town's argument, but not its starting point
  or its construction  of § 172.  The earliest version of what is now § 172
  was worded differently: "'[A]ll words  purporting to give a joint authority
  to three or more public officers or other persons, shall be  construed as
  giving such authority to a majority of such officers or other persons,
  unless it shall  be otherwise expressly declared in the law giving the
  authority.'"  First Nat'l Bank v. Town of 

 

  Mount Tabor, 52 Vt. 87, 105 (1879) (quoting G.S. Ch. 4, § 2 (1862)).  This
  Court found the  statute to be declarative of the common law.  See id.;
  Hodges v. Thacher, 23 Vt. 455, 465 (1851).  Although the cases do not fully
  explore the common law rules, First National cited with approval  cases
  from Connecticut and Massachusetts that hold that a majority of a public
  body constitutes  a quorum and a majority of those present, if a quorum, is
  sufficient to act for the body.  See First  Nat'l, 52 Vt. at 101-102; cf.
  E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 457,  175 A. 35, 41 (1934) (quoting Kent's Commentaries for proposition that, where
  select and definite  body is involved, majority of quorum of that body may
  decide question put before it).  The Town  argues that the rule expressed
  in those cases is the common law rule, codified in the antecedent  version
  of what is now § 172.

       We emphasize two points about the Town's view of the common law rule. 
  First, the rule  discussed in First National and Hodges says nothing about
  the effect of an abstention.  Under the  common law rule, the applicant
  would prevail in this case because a quorum was present and a  majority of
  those voting voted for the permit amendment.  See 1 Antieau, Local
  Government Law  § 4.11, at 4-27 (1998).  We do not, however, need to count
  the abstention as a vote for the permit  amendment to reach that result. 
  Neither the Town nor the Vermont League of Cities and Towns  as amicus
  curiae have pointed to any Vermont case endorsing the practice of counting
  an  abstention as a vote with the majority.  We believe there is no such
  case. 

       Second, the voting statute was amended in 1880, see G.L. § 3 (1880),
  and this amendment  explicitly modified the common law rule.  The amendment
  effectively abandoned the majority-of-a-quorum rule, in favor of the
  requirement that a majority of the members of the board or  committee act
  affirmatively.  Thus, before the amendment, if three persons from a
  five-person 

 

  board were present and split on an application with two in favor and one
  against, the application  would be approved.  Under the amendment, however,
  the application would fail.  We recognized  the difference in the first
  case that arose after the amendment, see Wells v. Austin, 59 Vt. 157,  163,
  10 A. 405, 409 (1886), and have since stated that the statute requires the
  concurrence of a  majority of the entire board.  See In re Lionni, 160 Vt.
  at 626, 648 A.2d at ___.  Thus, the  common law rule has been modified by
  clear and unambiguous language, and not by implication,  satisfying the
  statutory construction maxim.

       Even if we were to hold that we should still look to the common law,
  we cannot find as  clear a common law rule as the Town espouses.  See O.
  Reynolds, Voting Requirements in  Municipal Governing Bodies: Minority Rule
  or Legislative Stalemate?, 27 Urb. Law. 87, 91  (1995) (at least two
  versions of the common law rule on a majority of a quorum are possible). 
  Indeed, early cases from other jurisdictions describing the common law rule
  explain the effect  of abstentions as an effect of the majority-of-a-quorum
  rule, not as an independent doctrine.  For  example, in Rushville Gas Co.
  v. City of Rushville, 23 N.E. 72 (Ind. 1889) three of six members  of the
  city council voted in favor of buying an electric light plant, and the
  other three, although  present, abstained.  The Court held that the vote to
  purchase the plant was effective under the  majority-of-a-quorum rule: "The
  rule is that if there is a quorum present, and a majority of a  quorum vote
  in favor of a measure, it will prevail, although an equal number should
  refrain from  voting."  Rushville, 23 N.E.  at 73.  The Court went on to
  explain:

     If members present desire to defeat a measure they must vote 
     against it, for inaction will not accomplish their purpose.  Their 
     silence is acquiescence, rather than opposition.  Their refusal to 
     vote is, in effect, a declaration that they consent that the majority 
     of the quorum may act for the body of which they are members.

 

  Id. (emphasis added); see also Murdoch v. Strange, 57 A. 628, 630 (Md.
  1904) (where, in city  council election of municipal officer, four voted
  for one candidate and three for another, with one  member abstaining,
  candidate with majority of votes cast prevailed; abstaining member "has
  left  unopposed the votes of the other electors, and thereby, it may be
  said, assents to the election of  the candidate who receives a majority of
  votes").  We need only look at the majority and  dissenting opinions in
  Prosser, the lead case cited by the Town, to recognize the different 
  interpretations of the common law rule.  Prosser, 438 N.E.2d  at 134, 137.

       We view this case as one of statutory interpretation, in which we must
  construe the  meaning of the term "concurrence" in § 172.  See Smith v.
  Sussex County Council, 632 A.2d 1387, 1388 (Del. Ch. 1993).  In construing
  statutory language, we presume that the Legislature  intended the plain,
  ordinary meaning of the words it chose.  See Brennan v. Town of Colchester, 
  __ Vt. __, __, 730 A.2d 601, 603 (1999).  We agree with the Supreme Court
  of Ohio that the  term "concur" means more than silent acquiescence; it
  requires consent expressed in an overt way.  See Davis v. City of
  Willoughby, 182 N.E.2d 552, 556 (Ohio 1962); see also Smith, 632 A.2d   at
  1389 (concurrence in an action requires formal vote for it).  Thus, we
  adhere to the view  expressed in Vermont Emergency Board and Villeneuve
  that concurrence requires expressed  assent through a vote for the
  proposition.

       The environmental court remanded the matter to allow the applicant
  "the opportunity to  resubmit the application to a meeting of the planning
  commission for a vote to be counted  consistent with this decision." 
  Appellee argues that the proper remedy is to reverse the planning 
  commission decision outright without a remand.  In the absence of a
  cross-appeal, however, we  must accept the remedy provided by the
  environmental court.  See Moonves v. Hill, 134 Vt. 352, 

 

  355, 360 A.2d 59, 61-62 (1976).


       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Although appellee Philip Reynolds raises several other issues in his
  brief, those issues are  not in dispute in this case, and therefore are not
  properly before this Court.  Furthermore, several  documents which are not
  part of the record of this proceeding are included in appellee's brief. 
  Appellant's motion to exclude those documents is granted.
  
FN2.  Application of 66 North Main Street was decided under 24 V.S.A. §
  4462(a), which  governs zoning board decisions and has similar language to
  1 V.S.A. § 172.  There is no  equivalent statute for planning commission
  decisions, but a planning commission is governed by  § 172, and Application
  of 66 North Main Street makes clear that the effect of this statute is 
  identical to that of 24 V.S.A. § 4462(a).