In re McEwing Services, LLC

In re McEwing Services, LLC  (2003-078); 177 Vt. 38; 857 A.2d 299

2004 VT 53

[Filed 18-Jun-2004]


  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.


                                 2004 VT 53

                                No. 2003-078


       In re Appeal of McEwing Services, LLC     Supreme Court

                                                 On Appeal from
                                                 Environmental Court


                                                 January Term, 2004


       Merideth Wright, J.

       Daniel P. O'Rourke of Bergeron, Paradis & Fitzpatrick, LLP, Essex
       Junction, for Appellant.

       Paul S. Gillies, Montpelier, for Appellee.

       PRESENT:  Amestoy, C.J., Johnson, Skoglund and Reiber, JJ., and
                 Gibson, J. (Ret.), Specially Assigned


          
       ¶ 1     JOHNSON, J.  The Town of Moretown Development Review Board
  denied appellant, McEwing Services LLC, a conditional use permit for the
  construction of a telecommunications tower after four months of
  deliberations.  McEwing appealed to the Vermont Environmental Court
  claiming that the permit was deemed approved, pursuant to 24 V.S.A. §
  4407(2) and town zoning regulations, on January 28, 2002 - sixty days after
  the board held the final duly noticed public hearing on the application. 
  The town countered that the sixty-day deemed approval period did not begin
  to run until the board "closed the evidence," and because the board did not
  announce closure of the evidence until April 3, its April 10 decision was
  timely and effective to deny McEwing's application.   The environmental
  court granted summary judgment in favor of the town.  We reverse.

       ¶ 2     Pursuant to the Legislature's grant of authority, the Town
  of Moretown has adopted municipal zoning regulations.  See 24 V.S.A. § 4407
  ("Any municipality may adopt zoning regulations . . . ."); see also Town of
  Moretown, Vermont Zoning Regulations § 1.1 (March 7, 2000) (recognizing
  legislative grant of authority to adopt regulations).  Moretown's zoning
  regulations divide the town into five zoning districts.  Town of Moretown,
  Vermont Zoning Regulations § 2.1; see also 24 V.S.A. § 4407(1) (allowing
  for the creation of zoning districts).  Under § 4407(2) and § 5.2 of the
  town's zoning regulations, certain uses, known as "conditional uses," may
  be permitted only by approval of the town's development review board.  Both
  the statute and the regulation require that the board hold a public hearing
  to gather evidence and allow for public comment on the application.  24
  V.S.A. §§ 4407(2), 4467; Moretown Zoning Regulation § 5.2(B).  After the
  final public hearing on the proposed conditional use occurs, the board then
  has sixty days to render its decision; failure to act within the sixty-day
  period results in deemed approval of the application. 24 V.S.A. § 4407(2);
  Moretown Zoning Regulations § 5.2(B).        
   
       ¶ 3     On September 27, 2001, McEwing applied to the board for
  conditional use approval to construct a wireless telecommunications tower
  and a parking area on leased land located within the town's commercial
  district.  The board held the first duly noticed public hearing on the
  McEwing application on October 30, 2001.  Representatives from McEwing,
  various telecommunications companies interested in the project, members of
  the public, and one of the leased land's owners attended the meeting. 
  After questioning McEwing representatives about certain aspects of the
  project, the board moved to go into a closed "deliberative session."  At
  that time, the board informed McEwing that it was not "closing the
  evidence," and that McEwing might be asked to reappear before the board and
  submit additional evidence.  During the deliberative session, the board
  voted to continue the matter to November 28, 2001 and to write to McEwing
  seeking more information.

       ¶ 4     On November 2, the board wrote a letter to McEwing
  requesting more information about various aspects of the application and
  the underlying lease provisions for the project.  McEwing provided the
  requested information by letter prior to the November 28 hearing.  McEwing
  representatives attended the November 28 public hearing on its application. 
  The board accepted the additional information submitted by McEwing during
  the public portion of the hearing.  Before going into deliberative session
  again, the board advised McEwing that additional evidence might be
  requested.  Despite this statement, the board did not subsequently request
  anything further from McEwing.  At the conclusion of the deliberative
  session, the board again moved to continue for further deliberations.    

       ¶ 5     McEwing's was not the only telecommunications tower
  application considered by the board at the November 28 meeting.  The board
  questioned and received evidence from representatives for two other
  applicants and took public comment on those applications as well. 

       ¶ 6     The board conducted a number of deliberative sessions on
  McEwing's application. The first of these occurred on December 19.  During
  the deliberative session, the board considered a motion to consolidate the
  three pending tower applications, but concluded that "it must resolve each
  application separately on [its] respective merits."  The board again
  determined to continue the deliberative session to January 9, 2002 when two
  hearings were scheduled on other applications, including one for a fourth
  tower application.  The minutes indicate that the "[b]oard does not expect
  to make substantial progress on deliberations that evening and will likely
  continue the three pending matters for further deliberation or evidentiary
  hearing in late January or early February."  
   
       ¶ 7     A series of additional deliberative sessions followed
  without any resolution of McEwing's application, solicitation of additional
  evidence from McEwing, or comment from the public on its application. 
  These occurred on January 30, February 13, February 27, March 13 and March
  21.

       ¶ 8     On February 12, 2002, McEwing sent a letter to the board
  indicating that it had secured a commitment from another telecommunications
  company to use the facility in the event that the board approved the
  application.  The letter also included a photographic simulation of the
  tower that McEwing hoped to build.  Though the board had not requested the
  information, it accepted the letter into evidence at the hearing the
  following day.  The minutes indicate that the subject of the February 13
  hearing was a subdivision application unrelated to any of the four
  telecommunication tower applications.  No McEwing representatives attended
  the meeting.  Nonetheless, the board circulated the McEwing letter before
  entering into deliberative session.  

       ¶ 9     On April 3, 2002, the board voted to "close the evidence" on
  all of the telecommunications tower applications including McEwing's.  In a
  decision dated April 10, 2002, the board voted to deny McEwing's
  application.  The board concluded that (1) telecommunications facilities
  are neither permitted nor conditional uses in the commercial district where
  McEwing's proposed facility would be located, and (2) the lot size for the
  project did not satisfy the minimum requirements for uses within the
  commercial district.
   
       ¶ 10     McEwing appealed the decision to the environmental court,
  arguing that its application was approved by operation of law by virtue of
  the board's failure to render a decision within sixty days after November
  28, 2001 the date of the final noticed public hearing on McEwing's
  application.  Both parties moved for summary judgment, and the court ruled
  in favor of the town, holding that the board avoided the application of the
  statute by continuing its deliberative sessions and making clear to McEwing
  that it had not "closed the evidence" on its application.  The court ruled
  that the board's April 10 decision was within the sixty-day period when
  measured from April 3, the date the board pronounced the evidence closed. 
  The court further held that the board's decision was timely even if
  measured from February 13 - the date when the board accepted, during a
  public hearing on other matters, the letter and photograph that McEwing had
  voluntarily submitted to it the previous day.  In the court's view, this
  submission, coupled with McEwing's failure to demand a prompt decision from
  the board, amounted to a waiver of the deemed approval remedy.  We
  disagree.

       ¶ 11     We review the decision on a motion for summary judgment
  using the same standard as the environmental court.  See In re Jackson,
  2003 VT 45, ¶ 11, 830 A.2d 685.  Summary judgment is appropriate only if
  there are no genuine issues of material fact and the moving party is
  entitled to judgment as a matter of law.  Springfield Hydroelec. Co. v.
  Copp, 172 Vt. 311, 313, 779 A.2d 67, 70 (2001); V.R.C.P. 56(c). 
   
       ¶ 12     This case requires application of the Vermont Planning and
  Development Act and the deemed approval remedy it provides.  As it pertains
  to conditional use applications such as McEwing's, the act states that "the
  development review board shall act to approve or disapprove any such
  requested use within sixty days after the date of the final public hearing
  held under this section, and failure to so act within such period shall be
  deemed approval."  24 V.S.A. § 4407(2); see also Town of Moretown, Vermont
  Zoning Regulations § 5.2 (B) (March 7, 2000) (same).  The town contends
  that its all volunteer board "wrestled with . . . a complicated,
  challenging process" and rendered a timely decision under the
  circumstances.  In the town's view, the board avoided deemed approval by
  regularly informing McEwing and the public that it might request additional
  information from McEwing, and thus kept the "evidentiary hearing" open
  until the board voted the evidence closed on April 3.  McEwing argues that
  the board's continued statements regarding the possibility that it might
  request additional evidence, without more, do not satisfy the legal
  definition of a "final public hearing" for purposes of determining if and
  when deemed approval occurred.  In McEwing's view, the board's evasion of
  the statutorily prescribed procedure resulted in the type of protracted
  deliberations that the deemed approval statute is meant to deter.

       ¶ 13      In In re Fish, we held that, for the purposes of the
  statutory provision involved here, a "public hearing" occurs if (1) it is
  open to the public, (2) the applicant receives notice of the hearing, and
  (3) the board offers an opportunity for interested persons to be heard on
  the issues before it.  150 Vt. 462, 465, 554 A.2d 256, 258 (1988).  By
  contrast, "deliberations" are defined by the Open Meeting Law as the
  "weighing, examining and discussing the reasons for and against an act or
  decision, but expressly excludes the taking of evidence and the arguments
  of the parties."  1 V.S.A. § 310 (emphasis supplied).  The board conducts
  its business in accordance with the procedures adopted pursuant to the Open
  Meeting Law, and the minutes in the record from the various meetings
  present a picture of the board's deliberative sessions that is consistent
  with the foregoing definition.  See Town of Moretown's Zoning Regulations §
  6.1(B)(3).  Deliberative sessions that by definition and in practice do not
  satisfy all three Fish factors do not prevent deemed approval.  
   
       ¶ 14     The minutes of board meetings contained in the record
  support McEwing's argument that the November 28, 2001 public hearing was
  the last hearing to satisfy all of the Fish factors, as does the town's
  concession that the board did not notice another public meeting on
  McEwing's application.  At the close of the November 28 meeting, the board
  indicated that it would "work through all the material, [and] if [it has]
  enough information [the board] will make a decision as promptly and as
  fairly as possible."  The board also notified McEwing that it might ask the
  applicant to return to present more evidence if needed, but it did not take
  the formal step of continuing the public hearing.  See 24 V.S.A. § 4467
  (public hearing may be continued, provided, however, that date and place of
  adjournment is announced at the hearing).  The minutes from December 19
  show that the board did continue its deliberative session on all three of
  the pending tower applications, including McEwing's.  The minutes reveal,
  however, that the meeting was not open to the public and no new evidence
  was taken.  The January 9 meeting did include public hearings on another
  telecommunications towerhapplication, but not on McEwing's.  At the close
  of the January 9 meeting, the board moved to continue the deliberative
  session "on the four Telecommunication Tower applications on 1/30/02."  
   
       ¶ 15     By January 28, 2002, the sixty-first day after November 28,
  no new public hearing had been held on McEwing's application, no new
  evidence had been requested or submitted, and the board had not rendered a
  decision on the application.  Nonetheless, the board continued to maintain
  that the evidence was open, and continued its deliberations.  The January
  30 meeting was another deliberative session closed to the public and the
  applicant.  The minutes indicate that each of the four tower applications
  was reviewed, and that "[s]ubstantial progress was made and the Board
  expects to begin Findings at its next deliberative session, scheduled for
  February 13."  On February 13, seventy-eight days after the last public
  hearing on McEwing's application, the board accepted a letter and photo
  simulation from McEwing into evidence at a public hearing that was
  dedicated to other applications.  The board did not request the additional
  information provided by McEwing.  On February 27, the board held a public
  hearing on other applications, and neither the public nor the applicant
  were invited to be heard on McEwing's application.  The board did continue
  its deliberative session on McEwing's application.  The board held
  additional deliberative sessions closedo both the public and the applicant
  on March 13, March 21, and April 3 when it voted to close evidence on all
  the cell tower applications, including McEwing's.

       ¶ 16     Our review of the evidence leads to the conclusion that
  McEwing's application was deemed approved on January 28, 2002 pursuant to
  24 V.S.A. § 4407(2) and Moretown's Zoning Regulations § 5.2(B).  Consistent
  with the express terms of the statute, we hold that only public hearings,
  and not "deliberative sessions" accompanied by nonbinding representations
  about the status of the evidence, can prevent deemed approval in the
  absence of a timely decision from the board.  Were we to hold otherwise, we
  would essentially permit boards an open-ended amount of time to perform a
  task - rendering a decision based on the assembled evidence and public
  comment - that the legislature has explicitly confined to a sixty-day
  period.  See 24 V.S.A. § 4407(2). 
   
       ¶ 17      We acknowledge that town boards are staffed by volunteers
  who invest time and energy that is limited in view of their other
  obligations, but our application of the statute to the facts before us does
  not hinder the town's ability to fully consider any application.   The
  statute strikes a balance between a board's need for maximum access to
  information about an application and an applicant's need for a timely
  decision.(FN1)  The public hearing provides the board with a formal
  mechanism to obtain the needed information in a manner that is fair to all
  stakeholders; no conditional use may be permitted without a public hearing. 
  Id.  The statutory scheme recognizes that some applications may require the
  presentation of more evidence and the acceptance of more public comment
  than a development review board may have time for at any one public
  hearing.  In such a case, the board may continue the hearing and reconvene
  it at a later date, as long as it announces at adjournment the time and
  place where the hearing will be reconvened.  Id.  Furthermore, a board may
  hold numerous public hearings, as long as the board decision is made sixty
  days after the "final public hearing." See id. (emphasis added). 

       ¶ 18     We expressly reject the environmental court's holding that
  McEwing was not entitled to the deemed approval remedy because it had to
  "actively request the timely decision, or object to the successive
  adjournments at the time they are made," in order to invoke the deemed
  approval remedy.  Section 4407(2) states that deemed approval occurs upon
  the failure of the board - not the applicant - to act within the sixty-day
  period.  Thus, deemed approval occurs by operation of law, and requires no
  action on the part of the applicant.  Moreover, the public and the
  applicant were excluded from deliberative sessions, and thus would have no
  opportunity to object to the successive adjournments at the time they were
  made. 

       ¶ 19     We are not persuaded by the town's postition that McEng's
  voluntary submission of evidence on February 13 - more than two weeks after
  the deemed approval - eviscerates the statute.  While it may be true that
  McEwing did not assert its deemed approval remedy until after it received
  an unfavorable decision, this is no defense against the bright line for
  deemed approval that the statute demarcates at sixty days from the final
  public hearing on the application.  To allow unsolicited, voluntary
  submission of evidence after the deemed approval period has run to negate
  the effect of the statute would work a special hardship for applicants
  unfamiliar with the law, who may have voluntarily submitted additional
  information to a board in hopes of prompting action on a  long delayed
  decision.  Moreover, failure to adhere to the express terms of the statute
  would inevitably lead to confusion and disagreement over whether such
  submissions were sufficient to bar application of the deemed approval
  statute.  McEwing's voluntary February 13 submission does not alter the
  fact that the board exceeded the sixty-day period of its own accord. 
   
       ¶ 20       Moreover, the board did not need any of the evidence
  McEwing submitted after November 28 to reach its ultimate conclusion on the
  merits.  The second independent ground upon which the board's April 10
  decision rested was that the lot size for the project did not satisfy the
  minimum requirements for uses within the commercial district.  A comparison
  of the lot oize listed in the application and the "Lot Area Minimum"
  standard contained in the regulations would have quickly revealed the
  application's shortcomings.  While we are aware that the board had several
  applications before it and was doing its best to carefully review each one,
  the ultimate rejection was based on facts that were evident from the
  earliest stages of its deliberations. 
   
       ¶ 21     As the town notes in its brief, this Court's recent
  decisions have taken a conservative approach to deemed approval.  Deemed
  approval is "intended to remedy indecision and protracted deliberations on
  the part of zoning boards and to eliminate deliberate or negligent inaction
  by public officials." In re Fish, 150 Vt. at 464, 554 A.2d  at 258 (internal
  citation and quotation marks omitted).  Because the deemed approval remedy
  generally has the potential, as it does here, to transform a "negative
  decision [of the board] into a positive one," we have refused to apply the
  statute in a "wooden fashion," and have reserved it for cases where it
  clearly implements the statutory purpose.  In re Newton Enters., 167 Vt.
  459, 465, 708 A.2d 914, 918 (1998).  In arguing against the application of
  deemed approval in the instant case, the town relies on several of our
  cases where we rejected claims of deemed approval based upon technical
  defects in the decision or decision-making process.  See id. at 465-66, 708 A.2d  at 918 (reversing deemed approval based on timely but defective board
  vote when outcome of vote could not change even if defect was cured); Leo's
  Motors, Inc. v. Town of Manchester, 158 Vt. 561, 564-65, 613 A.2d 196,
  198-99 (1992) (reversing deemed approval based on failure of town to
  provide timely written notice of decision even though it was rendered
  within statutory period); Hinsdale v. Village of Essex Junction, 153 Vt.
  618, 625, 572 A.2d 925, 929 (1990) (denying deemed approval when board
  orally notified applicant of decision at last public hearing, timely
  committed decision to writing, but failed to mail decision within statutory
  period);   Fish, 150 Vt. at 465, 554 A.2d  at 258-59 (reversing deemed
  approval based on defect in notice of hearings held before expiration of
  period and that applicant attended and participated in notwithstanding
  defective notice).  The cases cited involve timely rendered, but
  technically deficient or insufficiently noticed decisions.  By contrast,
  the instant case involves an untimely decision that resulted from
  protracted deliberations, and, therefore, the statutory remedy is
  appropriate in this case.

       ¶ 22     The parties agree that there are no genuine issues of
  material fact.  McEwing was entitled to judgment as a matter of law; thus,
  summary judgment should have been entered for it instead of the town.

       Reversed and remanded with instruction to issue the applicant's
  permit.

       FOR THE COURT:



       _______________________________________
       Associate Justice


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                                  Footnotes

  FN1.  There are no material differences between the statutory language and
  the town zoning regulations that also govern the board's conditional use
  review.  Compare 24 V.S.A. § 4407(2) with Town of Moretown's Zoning
  Regulations § 5.2 (B).  For convenience sake, we have referred mainly to
  the statute; however, our analysis applies equally to the regulation.