By Elizabeth Kruska
Mr. Gould owns or owned some property in the town of Monkton and had ideas about how he’d like to subdivide and develop the lots. I’m not sure how long he had the land, exactly what his plans were, or how much work he had put in to making those plans a reality, but he’ll need to have a change of plans.
Let’s back up. The Town of Monkton had some zoning regulations that had been kicking around since 1978. As someone who is also of a 1978 vintage, I see no problem with this. But apparently the town thought the old regulations and their subsequent amendments needed some revamping. The opinion suggests this overhaul had been in the works for several years, and finally got replaced in 2012.
The town’s planning commission held a public meeting in late 2011 on the new regulations, which they called the Unified Planning Document (UPD). After it was approved at the planning commission level, the UPD was sent to the town. At this point—between the times the planning commission approved the document, but before the town formally voted on it—the town reviewed all new building applications under the guidelines of the UPD, not under the guidelines of the older zoning regulations.
There were two public meetings about the UPD, and a special townwide vote on the UPD in February 2012. It passed, 130 in favor, and 128 against. Lest anyone believe his or her vote doesn’t count, I assure you it does. Of note, though, is that before the vote was held, the selectboard changed some parts of the UPD based on some issues that were raised by the planning commission. There weren’t any other public meetings on these changes. The changes included requirements for a certificate of occupancy, number of lots in a mobile home park, and issues with topsoil.
Mr. Gould was upset by these changes. Before the selectboard’s approval and subsequent townwide vote, he sent a letter to the selectboard voicing dissent with the process. He said he believed the statutory requirements for public notice hadn’t been followed, and as such, the UPD was not valid. In March 2013—now thirteen months after the town had voted and approved the UPD—he filed a motion in the Civil Division seeking declaratory judgment, maintaining that the UPD wasn’t valid for various reasons.
The Town filed a motion to dismiss in April 2013, in part, because it felt the Civil Division was the wrong court, and that the Environmental Division was really the right place for the suit to be filed. The Civil Division judge looked at the information before it and said, “hold on a second; Mr. Gould has never even filed for a permit to do his project, so he might not even have standing.” Mr. Gould added a claim of a violation of procedural due process, and the town responded.
Thirteen months later, in May 2014 (things seem to happen in thirteen-month chunks in this case), Mr. Gould filed for a permit to subdivide his land under the old 1978 rules. The town rejected the permit. Mr. Gould could have appealed this to the Environmental Court but did not. By November of that year, the court reviewed the filings from 2013 and dismissed Mr. Gould’s claim.
First, the Civil Division said it didn’t have jurisdiction. Second, it said there was no constitutionally-protected property interest that needed compliance with the ordinance adoption rules. Third, Mr. Gould didn’t have any vested right to develop his property under the old rules because he didn’t even ask for a permit until more than two years after the UPD became law in Monkton.
Mr. Gould appeals, and SCOV affirms.
First of all, Mr. Gould tried to argue that the Civil Division had jurisdiction over the matter. In Vermont, our trial courts are all called “Superior Court,” which is divided into several different divisions. Different divisions hear different kinds of matters; there is a statute that sets forth what gets heard in which court. Only some things are exclusively heard in one court or another. For example, the Family Division has exclusive jurisdiction over juvenile proceedings. The Environmental Division has jurisdiction over lots of permitting and land use issues, but the statute doesn’t say specifically that jurisdiction is solely with that division for those matters.
SCOV appreciates the statutory interpretation gymnastics but disagrees. It reads all the relevant statutes together and determines that just because the word “exclusive” is not included with respect to jurisdiction over Environmental Division cases, it doesn’t mean there is concurrent jurisdiction with the Civil Division.
Mr. Gould’s counter to this is that he was in a position where there needed to be a declaratory judgment, and felt he had to file for this in the Civil Division. The argument is that the Environmental Division regularly dismisses this kind of challenge. SCOV seems perplexed. For starters, Mr. Gould could have appealed his permit denial to the Environmental Division and there would have been perfectly good, legitimate jurisdiction there. Second, he never actually filed there. He made an assumption that based on other cases that got dismissed that his also would get dismissed. Sort of like a kid saying, “Mom always says I can’t go to the movies with my friends so I’m not even going to ask since I know she’ll say no.”
Mr. Gould also made a constitutional challenge, and argued that the statute in question allows a “de novo trial in the Superior Court” where there is a constitutional challenge. I’m quoting directly from the opinion here, and I’m confused that either (a) the statute wasn’t amended in 2009 during the massive court reorganization and where it says Superior Court it should say Civil Division; or (b) where it says Superior Court there is no division specified, which means the Environmental Division would be appropriate. I think it’s supposed to be that constitutional arguments like this start in the Civil Division
SCOV says the issue here is one of a statutory concern, not a constitutional concern, and must have been filed in the Environmental Division. The procedure for adopting municipal ordinances is set forth by statute.
Turning to the constitutional claim, Mr. Gould argued that the town erred on two fronts. First, that he was deprived of his property interest by the Town’s not following the public meeting rules in enacting the UPD. Second, he argues that he had a vested interest in those claims, because he had taken steps to engage in development under the 1978 rules.
SCOV considers the Fourteenth Amendment and says that a plaintiff has to allege facts showing that a government action deprived him or her of a protected property interest. But it’s got to be more than a mere expectation. It’s got to be an actual claim of entitlement to the property interest. And procedural due process claims can only be made with respect to adjudicative decisions, not legislative decisions.
In trying to figure out if an action is an adjudicative or legislative action, the court looks at three separate factors. First is if the issue is general, rather than individually focused. Second is whether the issue is a larger policy question, or if it’s a resolution of factual disputes. Last is whether the result has future effect. Consistently, SCOV applies these factors to municipal land use decisions. It appears that if the decision is of the broader type, it would be a legislative action. If it’s more specific and tailored to factual disputes in a particular instance, it’s adjudicative.
Here, the UPD was not passed with the issues raised by Mr. Gould in mind. It was a long-standing plan to revamp Monkton’s zoning regulations. The changes were done with the future in mind, and how zoning affects the entire Monkton community.
Lastly, SCOV addresses the issue about Mr. Gould’s argument about having a vested property interest under the old rules. It doesn’t appear he ever tried to actually set his plans into motion until well after the rules changed. There’s no evidence in the opinion that he did things to take substantial steps toward his development prior to seeking the permit in 2014. He might have, the opinion just doesn’t mention it. Mr. Gould tried to argue that there have been situations in other cases in other states where a landowner took steps to do some developing but ended up being stopped by a change in zoning rules. SCOV says the facts of those cases were different than the facts here and does not find it persuasive.
SCOV’s main point to this argument is that in Vermont, the way to vest a property interest is to file for a permit. That’s how you put the town and other interested parties on notice that your plans are more than just ideas. The rules that apply are the rules in place at the time you file for the permit.
So, SCOV affirms the dismissal.
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