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In re Appeal of Armitage (2004-454)
2006 VT 113
[Filed 09-Nov-2006]
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.
2006 VT 113
No. 2004-454
In re Appeal of Armitage, et al. Supreme Court
On Appeal from
Environmental Court
October Term, 2005
Merideth Wright, J.
Stephanie J. Kaplan, East Calais, for Appellants.
Vincent A. Paradis and Daniel P. O'Rourke of Bergeron, Paradis &
Fitzpatrick, LLP, Essex Junction, for Appellees.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. BURGESS, J. Interested neighbors ("neighbors") appeal an
Environmental Court order granting Pittsford Enterprises, LLP and Joan S.
Kelly ("applicants") a conditional use permit and site plan approval to
construct a new post office in the Town of Pittsford. The proposed site is
located at the intersection of Route 7 and Plains Road. In 2002, neighbors
appealed the Zoning Board of Adjustment's (ZBA) grant of a conditional use
permit to the Environmental Court. The court reversed the ZBA and denied
the application, without prejudice, because of erosion, traffic volume and
traffic safety problems. Neither side appealed. In January 2003,
applicants submitted a revised application which the ZBA approved. Again,
neighbors appealed to the Environmental Court. After trial on the merits,
the Environmental Court approved applicants' proposal, finding that the
erosion and traffic issues were resolved by the new application and new
evidence. The court's approval was given on condition that applicants take
additional specific steps to provide for traffic safety. This appeal
followed. Neighbors argue that: (1) relitigation of traffic volume and
safety issues at the intersection of Route 7 and Plains Road should have
been barred by collateral estoppel; (2) the Environmental Court's findings
of fact were not supported by the evidence, nor were the conclusions of law
supported by the findings; and (3) the conditions imposed by the court were
invalid. We reverse.
2. In neighbors' first appeal to the Environmental Court, the
court denied applicants' post office proposal "without prejudice," finding
that the application did not meet the requirements of 2.12.1(b) and (e)
of the town's zoning bylaws governing approval of conditional use permits.
The court stated that applicants' proposal did not comply with subsection
(b) because it did not adequately address potential erosion problems at the
site, and did not comply with subsection (e) because it presented three
potentially adverse effects to area traffic: vehicles exiting the project
driveway could not safely make a left turn onto Plains Road; the additional
traffic brought by the project turning left from Plains Road onto Route 7
during peak conditions would deteriorate traffic movement to an
unacceptable level; and the absence of vegetation or signs to screen the
proposed emergency access gate to the property from Route 7 posed a traffic
hazard. Neighbors argue that some of the problems with the Route 7
intersection identified in the 2002 decision were not addressed in
applicants' subsequent application and that relitigation of the same
problems should have been barred by collateral estoppel. Applicants reply
that collateral estoppel does not apply for several reasons, including that
the Environmental Court's 2002 decision was not a final order because it
was made "without prejudice" to their right to resubmit their application.
We agree with neighbors. The revised application should not have been
considered absent substantial modifications to the plans to address or
alleviate the traffic-flow problems identified in the Environmental Court's
earlier order.
3. We review the Environmental Court's interpretation of zoning
ordinances and findings of fact for clear error. In re Gaboriault, 167 Vt.
583, 585, 704 A.2d 1163, 1166 (1997) (mem.). Conclusions of law are
reviewed de novo. In re Beckstrom, 2004 VT 32, 9, 176 Vt. 622, 852 A.2d
561 (mem.).
4. Collateral estoppel, or issue preclusion, "[does] not purport
to prohibit litigation of matters that never have been argued or decided."
18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure:
Jurisdiction 2d 4416, at 386 (2002). Rather, issue preclusion generally
bars relitigation of an issue that was already litigated and decided.
Trickett v. Ochs, 2003 VT 91, 10, 176 Vt. 89, 838 A.2d 66. Issue
preclusion applies when: (1) it is asserted against one who was a party in
the prior action; (2) the same issue was raised in the prior action; (3)
the issue was resolved by a final judgment on the merits in the prior
action; (4) there was a full and fair opportunity to litigate the issue;
and (5) its application is fair. Id. The doctrine generally applies to
zoning so that "a zoning board or planning commission may not entertain a
second application concerning the same property after a previous
application has been denied, unless a substantial change of conditions
ha[s] occured." In re Carrier, 155 Vt. 152, 158, 582 A.2d 110, 113 (1990)
(quotations omitted). Applicants bear the burden of showing changed
circumstances. Id. at 158, 582 A.2d at 114. The changed-circumstances
requirement is satisfied when a revised proposal addresses all concerns
that prevented approval of the prior application. Id. at 159, 582 A.2d at
114. Despite the general rule limiting successive applications, applicants
contend that the successive-application doctrine (FN1) does not preclude
consideration of their second application because the Environmental Court's
decision was not a final judgment, the issues were not the same, applying
collateral estoppel would be unfair, and there were substantial changes in
the second application.
5. As a preliminary matter, we address applicants' argument that
neighbors are barred from asserting preclusion because neighbors' statement
of questions on appeal to the Environmental Court "raised the very issues
they seek to have barred by collateral estoppel." This argument
misconstrues the question neighbors presented to the court: "Whether the
applicant has made changes 'to the Plains Road/Route7 intersection (and the
screening of the emergency access gate) sufficient to address the problems
discussed [in the 2002 decision].' " The question goes on to list specific
problems identified in the 2002 decision. Applicants maintain that the
problems raised by neighbors in this question gave applicants the right and
obligation to respond by presenting evidence on those problems. We
conclude, to the contrary, that neighbors' question did not waive
preclusion but rather asserted it by asking whether the successive
application was substantially changed to address the previously identified
problems. As discussed below, the permissible response was for applicants
to show that the renewed application did address all of the problems.
Applicants were not entitled by this question to relitigate whether the
problems, already decided, were present in the first place.
6. We next address applicants' argument that the
successive-application doctrine does not apply because the Environmental
Court's 2002 decision was not a final judgment. In support of this
argument, applicants point to the court's denial of the conditional use
permit "without prejudice to the Applicant's submittal to the ZBA of the
same or a revised building design" with changes to address the court's
stated concerns. The test for final judgment is whether the judgment
"makes a final disposition of the subject matter before the Court." State
v. CNA Ins. Cos., 172 Vt. 318, 322, 779 A.2d 662, 666 (2001) (internal
quotations omitted). The court's denial "without prejudice" is merely a
recitation of the successive application doctrine articulated in
Carrier-that applicants could reapply with a substantially altered
application that addressed the reasons for the previous application's
denial. Consideration of the substantially altered successive application
presents a new subject matter to the ZBA, and to the Environmental Court on
appeal. Thus, the court's denial of an application is a final disposition
of that particular application's compliance with applicable laws and
regulations. (FN2)
7. Put another way, the 2002 decision was a final judgment
because it was conclusive, not merely tentative, and was procedurally
definite. Scott v. City of Newport, 2004 VT 64, 12, 177 Vt. 491, 857
A.2d 317 (mem.) (citing Restatement (Second) of Judgments 13, cmt. g
(1982)). The decision was conclusive and definite despite the possibility
of future applications for the same project. See id. (finding grant of a
site-plan permit to be a final judgment for purposes of issue preclusion,
though permit was never used and eventually expired). The parties were
given a full opportunity to litigate the issues, and all matters that
"should or could properly [have been] settled at the time and in the
proceeding then before the court" were so settled. CNA Ins., 172 Vt. at
322, 779 A.2d at 666. Consequently, the Environmental Court's "denial
without prejudice" was a final judgment of that application for preclusion
purposes and conferred no greater right to reapplication than is allowed by
our successive-application doctrine.
8. Applicants argue that barring review of their second
application would be unfair because a second application receives de novo
review-and thus should not be viewed as relitigation of the same
application. As Carrier explains, however, a revised application for the
same development is not a per se new issue for purposes of applying the
successive application doctrine. Rather, the applicant must show that
there has been a substantial change in the application or the
circumstances. 155 Vt. at 158-59, 582 A.2d at 113. Nor does this amount
to unfair surprise to applicants; Carrier has been settled law for fifteen
years. The Environmental Court's denial of the first application "without
prejudice" to applicants' ability to resubmit their application with
revisions that address all identified concerns could not reasonably be
interpreted as conveying greater rights than permitted by our established
successive-application doctrine.
9. Finally, we consider whether modifications made to
applicants' proposal were sufficient to overcome the successive-application
doctrine and allow the court to rehear the case. We encourage, but do not
require, the trial court to make an explicit finding of changed
circumstances before considering a second application, so long as the
court's findings implicitly indicate that the revised proposal is
sufficiently changed to meet all concerns that prevented prior approval.
Id. at 158-59, 582 A.2d at 113. The court's 2002 decision identified
potential erosion problems at the site and three traffic concerns as bases
for denying the application. According to the court's 2004 decision, the
revised proposal sufficiently addressed the potential erosion problems and
two of the three traffic concerns-the addition of a vegetation screen
across the Route 7 emergency access and a redesign of the entrance and exit
drives to locate the project's exit onto Plains Road farther from the Route
7 intersection to eliminate a potentially dangerous left turn onto Plains
Road.
10. The revised proposal did not, however, make any modifications
to address the court's expressed concern that increased traffic from Plains
Road turning left onto Route 7 would adversely affect traffic flow on Route
7. The court's 2002 decision stated:
Without some redesign [of the intersection] to accommodate an
increase in the volume of traffic turning left . . . during peak
conditions, that turning movement in the intersection will
deteriorate to an unacceptable level. . . . [T]herefore, the
proposal can be expected to adversely affect the traffic on roads
and highways in the vicinity.
The revised application did not include any changes to the proposal to
address this concern. Rather, applicants brought forth additional evidence
in the form of testimony from Agency of Transportation officials to
demonstrate that traffic flow at the intersection would not be adversely
affected. Nothing in the record suggests that the same testimony was not
available or the same evidence could not have been known to applicants when
the traffic-volume issue was raised at the first hearing. This
relitigation of an issue with additional evidence that was previously
available is precisely what issue preclusion is intended to prevent. See
Berlin Convalescent Ctr. v. Stoneman, 159 Vt. 53, 60, 615 A.2d 141, 145-46
(1992) (describing issue preclusion as a balance between giving a litigant
an adequate day in court and preventing repetitious litigation of what is
essentially the same dispute). We do not find any implicit indication in
the Environmental Court's decision that the revised proposal met the
concern expressed in 2002 regarding increased traffic volume. In the
absence of such indication, consideration of the revised application is
foreclosed by the successive application doctrine. In reaching this
conclusion we do not needlessly place procedure over substance, but rather
seek to uphold the important policy of encouraging applicants to be
thorough in their initial applications in the interest of finality and
judicial economy.
11. Having concluded that the revised application should not have
been considered absent changes that addressed all areas in which the
previously denied application did not comply with regulations, as opposed
to merely offering different evidence on a matter settled by the earlier
decision, we do not review neighbors' challenges to specific findings of
fact and conclusions of law. Nor do we take up the matter of the court's
imposition of future obligations upon applicants as a condition of
approval.
Reversed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Neighbors assert "issue preclusion" as the basis for denying the
application. We use the term "successive-application doctrine" henceforth
because of the specific issue-preclusion rules developed for zoning
applications.
FN2. Applicants' citation of Zingher v. Department of Aging & Disabilities,
163 Vt. 566, 664 A.2d 256 (1995), as an example of a similar situation in
which a board's decision was not final, and issue preclusion was therefore
inapplicable, is unpersuasive. There, an administrative board denied an
individual's request for certain equipment and training as part of a
rehabilitation plan "at the present time" until the individual could show
the necessity of the particular assistance required. Id. at 571, 664 A.2d
at 258. The continued review of a disabled individual's evolving needs is
distinct from a zoning application for a design or use that either does or
does not meet established standards. |