Supreme Court Affirms Zoning Regulations Decision

In Donald Gould v. Town of Monkton, 2016 VT 84 (July 29, 2016), the Vermont Supreme Court affirmed the superior court’s holdings regarding the Town of Monkton’s new zoning regulations.

Issue: In February 2011, Monkton’s planning commission approved a new set of zoning regulations, the Unified Planning Document (UPD). In August 2014, the Monkton selectboard published a notice for the first public hearing on the UPD, and the town started to review all new zoning applications under the UPD rather than under the previous 1978 regulations. The selectboard then approved the UPD and submitted it to the town clerk so it could be voted on in a special election. Before the town vote, the planning commission and the selectboard updated the UPD without notice of a public hearing. The UPD was adopted after the special election, and thirteen months later, Gould filed a declaratory judgment action with the civil division of the superior court in an effort to invalidate the UPD, arguing that it was enacted in violation of 24 V.S.A. ch. 117. Monkton responded by alleging that Gould did not have standing to challenge the UPD and that the civil division did not have subject matter jurisdiction under 24 V.S.A. ch. 117. To acquire standing, Gould applied to subdivide his property under the 1978 regulations. His application was denied, and he did not appeal the denial to the environmental division. The trial court subsequently dismissed Gould’s claim. On appeal, Gould argued: that the trial court erred in finding that it did not have jurisdiction; that it erred in finding that he had no due process interest in the zoning regulation adoption process; and that it erred in finding that he had no due process interest in the application of the 1978 zoning regulations.

Holding: The Supreme Court affirmed the dismissal on all three grounds. With regard to Gould’s first argument, the Court found that the Legislature explicitly divested the civil division of exclusive jurisdiction stemming from 24 V.S.A. ch. 117 and explicitly granted exclusive jurisdiction to the environmental division in the 2009 reorganization of the superior court. The Court also noted that Gould was not left without a remedy in this case – he could have appealed the denial of his application and challenged the statute in the environmental division. Further, since he did not bring his declaratory judgment action in the environmental division, he has no basis for knowing what the environmental division would have done. The Court also found that Gould did not have a viable procedural due process claim, since this was a legislative decision and not a governmental adjudicative decision. Finally, the Court found that Gould did not have a vested, constitutionally protected property interest in the 1978 regulations – Vermont case law clearly holds that filing a permit application vests a right in the regulations that exist at the time of filing. In this case, the Court noted that a permit application cannot “retroactively vest a right in prior regulations.”