In re Charlotte Farm & Mills

In re Charlotte Farm & Mills (2000-007); 172 Vt. 607; 779 A.2d 684

[Filed 02-Aug-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-007

                               MAY TERM, 2001


In re Appeal of Charlotte Farm & Mills	}	APPEALED FROM:
                                        }
                                        }
                                        }	Environmental Court
                                        }	
                                        }
                                        }	DOCKET NO. 45-3-99 Vtec

                                                Trial Judge: Merideth Wright 

             In the above-entitled cause, the Clerk will enter:


       Charlotte Farm & Mills appeals the environmental court's order
  concluding that the Zoning  Board of Adjustment (ZBA) of the Town of
  Charlotte, and hence the environmental court, had  jurisdiction to review a
  decision by the Town's zoning administrator as to whether Charlotte Farm's 
  activities exceeded the scope of its zoning permit.  We affirm. (FN1)

       The material facts are not in dispute.  In January 1998, Charlotte
  Farms submitted an  application for a zoning permit to the Town's zoning
  administrator.  On its face, the application  sought approval for an
  "agricultural operation" and "forestry" on a 14.66-acre parcel owned by 
  Champlain Oil Company.  Accompanying the application was a county
  forester's letter defining the  term "forestry" and stating that
  "processing, utilization, and marketing are integral components of 
  forestry."  In the last sentence of the letter, the forester states: "I
  look forward to hearing of your  progress with establishing your sawmill." 
  On February 17, 1998, the administrative officer approved  the permit
  application and posted notice of the permit.  There was no appeal of the
  zoning  administrator's decision.

       In the summer of 1998, Charlotte Farm began the operation of a
  portable sawmill business on  the subject property.  In October 1998, a
  Charlotte resident filed a notice of appeal with the ZBA,  complaining that
  the sawmill operation was a commercial activity that was not permitted
  within the  rural zoning district.  The ZBA dismissed the appeal as
  untimely filed, and no appeal was taken from  that decision.  In November
  1998, a neighboring property owner asked the Town's zoning  administrator 
  to determine whether there were zoning violations on the subject property
  with respect  to the commercial sawmill activities.  By letter dated
  November 24, 1998, the zoning administrator 

 

  informed the neighboring property owner that he had reviewed the sawmill
  operation and found it to  be "consistent with the permit which I issued
  for that use."

       In December 1998, the neighboring property owner, and others, appealed
  the zoning  administrator's determination to the ZBA.  The ZBA concluded in
  a February 18, 1999 written  decision that Charlotte Farm's use of the
  property violated the Town's zoning laws because the  sawmill operation did
  not constitute "forestry" and Charlotte Farm had not applied for or
  obtained a  permit to operate a sawmill on the property.  Charlotte Farm
  appealed the ZBA's decision to the  environmental court.  In a motion for
  partial summary judgment, Charlotte Farm argued that the  zoning
  administrator's November 24 letter was not an appealable decision, and that
  neither the ZBA  nor the environmental court had jurisdiction over the
  matter.  The environmental court denied the  motion, concluding that the
  ZBA, and thus the court, had jurisdiction to review the zoning 
  administrator's November 24 letter.  Following a merits hearing, the court
  concluded that Charlotte  Farm's permit to engage in agricultural and
  forestry uses did not authorize the operation of a portable  sawmill on the
  property to process logs and other materials brought in from off-site.

       On appeal, Charlotte Farm does not challenge the environmental court's
  merits decision, but  rather argues that the court lacked subject matter
  jurisdiction to review the sawmill operation.   According to Charlotte
  Farm, the zoning administrator's February 17, 1998 decision granting its 
  permit application became final when no party appealed it within the time
  limit, and thus neither the  ZBA nor the environmental court had
  jurisdiction to entertain a collateral attack on the unappealed  ruling. 
  See 24 V.S.A. § 4472(d) (interested persons who fail to appeal from
  decision or act of zoning  administrator shall be bound by that decision or
  act and shall not thereafter contest such decision or  act in any later
  proceeding).

       We find no merit to this argument.  By its terms, the permit
  authorized Charlotte Farms to  undertake forestry and agricultural
  operations.  But nothing in the approved permit application, of  which
  public notice was given, indicated that a sawmill operation would be
  allowed.  In response to  the complaint of a neighboring property owner,
  the zoning administrator ruled that Charlotte Farm's  sawmill operation was
  consistent with the permit.  This ruling was plainly a "decision or act" of
  the  zoning administrator appealable to the ZBA.  See 24 V.S.A. § 4464(a),
  (c)(1) (interested party may  appeal any decision or act taken by zoning
  administrative to ZBA, which shall have power to hear  claims that
  administrative officer erred in connection with enforcement of zoning law). 
  Further, the  finality and exclusivity doctrines embodied in § 4472(d) do
  not preclude an interested person from  taking action to ensure compliance
  with the terms of a zoning permit.  Thus, the fact that no one  timely
  appealed the initial permit granted to Charlotte Farm did not preclude
  neighboring property  owners from later seeking review of the zoning
  administrator's decision that Charlotte Farm's  activities were within the
  scope of its permit.  See In re Sardi, 170 Vt. 623, 626, 751 A.2d 772, 776 
  (2000) (mem.) (violation of permit conditions constitutes zoning violation;
  interested persons may  appeal to ZBA if zoning administrator fails to act
  on their complaints seeking enforcement of zoning  laws); In re Robinson,
  156 Vt. 199, 202, 591 A.2d 61, 63 (1991) (same); see also In re Fairchild,
  159  Vt. 125, 131, 616 A.2d 228, 231-32 (1992) (cases in which trial court
  lacked 

 

  subject matter jurisdiction because defendants failed to appeal zoning
  administrator's decision to  ZBA did not involve zoning administrators's
  refusal to enforce zoning laws).

       Under Charlotte Farm's analysis, interested parties would be required
  to appeal, or forever  waive the right to appeal, not only the decision of
  the zoning administrator to grant a permit, but also  any unstated,
  underlying considerations that formed the basis for issuance of the permit. 
  Given the  vague terms of the permit, and thus the lack of notice as to
  what activities were being permitted,  Charlotte Farms cannot prevail on
  its claim that the neighboring property owners were bound by the  unstated
  beliefs of the zoning administrator.  Cf. In re Kostenblatt, 161 Vt. 292,
  299, 640 A.2d 39, 44  (1994) (unstated permit conditions may not be imposed
  on permittee).

       Charlotte Farm also states in a brief footnote that there is no merit
  to the trial court's  determination that the ZBA and the court were not
  estopped from reviewing the zoning  administrator's November 24, 1998
  decision.  To the extent that the statement can be construed as a  claim of
  error, it is inadequately briefed.  See KPC Corp. v. The Book Press, Inc.,
  161 Vt. 145, 152,  636 A.2d 325, 329 (1993) (assertions unaccompanied by
  facts, law, or reasoning need not be  considered on appeal).  Charlotte
  Farm neither explains how the court erred in concluding that at  least two
  of the elements of estoppel were not met in this case, nor even discusses
  the elements of  estoppel.  See Wesco, Inc. v. City of Montpelier, 169 Vt.
  520, 524, 739 A.2d 1241, 1244-45 (1999)  (listing elements of equitable
  estoppel).


       Affirmed.   




                                      BY THE COURT:


                                      _______________________________________
                                      John A. Dooley, Associate Justice


                                      _______________________________________
                                      Denise R. Johnson, Associate Justice


                                      _______________________________________
                                      Marilyn S. Skoglund, Associate Justice


                                      _______________________________________
                                      William D. Cohen, Superior Judge
                                      Specially Assigned



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                                  Footnotes


FN1.  Chief Justice Amestoy heard oral argument but did not participate
  in this decision.