Tuesday, March 8, 2011

Black Hawk Can’t Come Down

Coutu v. Town of Cavendish, 2011 VT 27


This decision comes as a blessing to all of us with clients who own a helicopter, want to build a landing pad for it at their Vermont house, and come to us for permitting assistance.  (I think that’s pretty much all of us, right?)  Helicopter landing pads, as it turns out, are subject to a special permitting procedure governed by the Vermont Transportation Board.  In order to build a helipad, the developer must obtain approval from the Board under 5 V.S.A. § 207.  And in order to gain Board approval, the developer must submit an application that is “supported by documentation that the proposed facility has received municipal approval.”  5 V.S.A. § 207(d).  Municipal approval may be achieved in one of two ways: first, by being in conformance with municipal requirements with respect to land use (zoning), or, second, by obtaining the approval of the local governing body.  Our unlucky Plaintiff in this case had the misfortune of living in a town that did not have a zoning ordinance concerning helicopters and a selectboard that was unwilling to grant its approval to a helipad.  What is a poor helicopter pilot or M*A*S*H enthusiast to do?


Plaintiff’s first stop in this case was with the Town Selectboard.  He requested that the Selectboard simply write a letter to the Transportation Board explaining that it had no zoning ordinance, and then let the state take it from there.  Not surprisingly, the Selectboard opted to try something different, and instead of letting the state take control, it referred the helipad matter to the Town’s Planning Board.  The Planning Board determined that the helipad was not in conformance with the Town Plan, and issued a memorandum to the Selectboard to that effect.  After discussing the Planning Board’s conclusions, and puzzling over the meaning of the statute that gave the Selectboard a role in the helipad permitting process, the Selectboard eventually decided to send a letter to the Transportation Board stating that by a three-to-two vote, the Selectboard was opposed to the helipad. 

This Selectboard action was not so helpful to our intrepid pilot, but despite the lack of municipal approval, Plaintiff decided to apply for Transportation Board approval of his helipad anyway.  The Agency of Transportation (VTrans) serves as the gatekeeper for the Board by conducting the preliminary review of helipad applications.  VTrans told Plaintiff that it would not forward his application on to the Board without the required municipal approval.  Additionally, VTrans told Plaintiff that if the Selectboard didn’t want the helipad, then the Selectboard had the power to veto it.  I think it is fair to say that this was not the response our pilot was hoping for.

Refusing to be deterred even by this state-level action, our pilot forged ahead and petitioned for a declaratory ruling from the Transportation Board, requesting that the Board explain just how exactly the statute governing helipad approvals is supposed to operate in a town with no zoning ordinance and with a Selectboard determined to withhold municipal approval. Although Board rules indicate that the Board must entertain all declaratory ruling petitions, Plaintiff instead received a letter from the Board’s Executive Secretary directing him to read the statute again himself, and telling him that the Board would not act on his application until it included municipal approval.  Our pilot must have felt that he was flying into a very stiff headwind indeed by this point.  

Having spent enough time in the friendly skies of municipal bodies and state agencies, our pilot opted to try a different branch of government and stopped next at the superior court.  Never one to back down, Plaintiff brought out the big guns and asked the court for an injunction against the town requiring it to approve of his helipad, review of the Board’s inaction on his declaratory ruling petition, and an injunction against the Board requiring it to consider his helipad application on its merits.  The town, VTrans, and the Board filed motions to dismiss the court action.  The trial court agreed with the town that Plaintiff was out of time to appeal the Selectboard’s action under Vermont Rule of Civil Procedure 75 because he waited more than thirty days to appeal from their letter (or, if you want to characterize their letter as inaction, Plaintiff had also waited more than six months from the time he had asked for action).  The state defendants threw a few different theories at the wall—and some or all of them stuck with the trial court.  It dismissed the action against the state defendants as well. 

Some pilots might have been grounded by the superior court’s summary dismissal of the action, but our pilot is a never-say-die kind of a guy, and on he went to the SCOV.  After a recital of the background facts and procedural history, the SCOV concluded that indeed, the Town was off the hook here because the pilot waited too long to appeal the Selectboard’s action/inaction.  Rule 75 gives you thirty days to appeal any action of a municipal body, or, if your complaint is based on a failure to act, then you have six months from the time that the action “should reasonably have occurred.”  Plaintiff’s theory on this point was apparently that the time period had not yet begun to run—because whatever the Selectboard did, it wasn’t action or inaction.  The SCOV disagreed—it had to be one or the other—and in either case, our pilot waited too long.

But all is not lost for our embattled pilot!  The SCOV reversed the trial court’s dismissal of the action against the state defendants.  Our pilot appealed the Board’s failure to hear his declaratory ruling motion in plenty of time, and, the SCOV said, he deserved to be heard.  Additionally, the SCOV sided with our pilot on the issue of whether the superior court could entertain the requested injunction against the Board directing the Board to consider the helipad application on its merits. The lower court had ruled that under the statute governing Board approvals of helipads, 5 V.S.A. § 207, the pilot was required to take a direct appeal of the Board’s action under Rule 74, and thus the superior court did not have subject matter jurisdiction over the complaint for an injunction.  The SCOV, however, pointed out that the pilot had to take a Rule 74 direct appeal only if he was appealing an actual order of the Board, and in this case, the Board never made any orders—it neither granted nor denied his application; it simply never considered it.  Thus, there was no bar to the claim for an injunction, and the SCOV remanded this issue for the lower court to try again.

If at first, second, and third you don’t succeed, try, try again.  Don’t forget to follow the remand proceedings closely, that next helicopter pilot in need of permitting advice is just around the corner!

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