More often than not, someone is going to disagree with how a municipality administers and enforces their land use regulations. Zoning administrators are routinely called upon to pass judgment on controversial issues. Because of the way land uses impact the character of our communities, these contentious government actions stir emotions and lead some citizens to pursue legal challenges. However, Vermont’s state statutes governing municipal and regional planning and development do not permit every tax-paying citizen to file an appeal. Rather, the availability of a challenge is limited to “interested persons.” But, what makes a person “interested” and what legal avenues are provided for this limited class of people? This post explores these questions and reviews the pertinent case of Garzo v. Stowe Bd. of Adjustment. 144 Vt. 298, (1984).
Under 24 V.S.A. § 4473, all land use decisions made under Chapter 117 are reviewable by a court. However, the legislature can limit how, when, and by whom these local decisions are challenged. The Vermont Legislature acted upon this authority by adopting 24 V.S.A. § 4464(b) (currently 4465(b)), which limits standing for filing an appeal of decisions of the administrative officer (a zoning administrator) to those who qualify as “interested persons.” The purpose of limited standing is to avoid bogging down the local planning process by making every land use decision fully open to challenge. Under the section, “interested persons” are limited to:
(1) A person owning title to property, or a municipality or solid waste management district empowered to condemn it or an interest in it, affected by a bylaw, who alleges that the bylaw imposes on the property unreasonable or inappropriate restrictions of present or potential use under the particular circumstances of the case.
(2) The municipality that has a plan or a bylaw at issue in an appeal brought under this chapter or any municipality that adjoins that municipality.
(3) A person owning or occupying property in the immediate neighborhood of a property that is the subject of any decision or act taken under this chapter, who can demonstrate a physical or environmental impact on the person’s interest under the criteria reviewed, and who alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality.
(4) Any ten persons who may be any combination of voters or real property owners within a municipality listed in subdivision (2) of this subsection who, by signed petition to the appropriate municipal panel of a municipality, the plan or a bylaw of which is at issue in any appeal brought under this title, allege that any relief requested by a person under this title, if granted, will not be in accord with the policies, purposes, or terms of the plan or bylaw of that municipality. This petition to the appropriate municipal panel must designate one person to serve as the representative of the petitioners regarding all matters related to the appeal.
(5) Any department and administrative subdivision of this state owning property or any interest in property within a municipality listed in subdivision (2) of this subsection, and the agency of commerce and community development of this state.
In Garzo v. Stowe Bd. Of Adjustments, Kenneth Garzo, an interested, but not “interested” citizen, challenged a conditional use permit for a “budget family restaurant” in the resort town of Stowe. The terms of the restaurant’s permit dictated that “all food and beverages  be served to customers seated at tables or counters either inside or outside the restaurant building.” In Mr. Garzo’s view, the conditioned permit prohibited the owner from selling food out of a “take-out window” or a “drive-thru.” Further, the restaurant owner was contemplating selling the non-complying restaurant to a “nationally-based fast-food chain” that would perpetuate the violation. Garzo complained to the Board of Adjustment and its administrative official, who had issued the permit, but did not receive satisfaction. Therefore, Garzo brought suit in Lamoille Superior Court requesting a writ of mandamus (a court order for a government official to take some particular action) to compel the town to enforce the conditions of the permit.
The local court dismissed Garzo’s complaint for lack of standing. In the court’s opinion, Garzo didn’t meet the criteria of “interested person” in Section 4464(b) and was therefore ineligible to bring the suit. Determined to keep fast food chain restaurants out of Stowe, Garzo filed an appeal to the Supreme Court of Vermont arguing that 4464(b) only applied to appeals of actual land use decisions and not to challenges of government enforcement actions requesting mandamus.
The Supreme Court was not receptive to Garzo’s argument. In conducting its analysis, the Court laid out the two-part test for procuring Vermont’s version of mandamus under V.R.C.P. 75. First, the challenged action must be an affirmative duty of government and not an act that involves the exercise of judgment or discretion. Garzo cleared this hurdle because municipalities have an affirmative obligation to enforce their land use regulations. Specifically, 24 V.S.A 4442(a) (currently 4448(a)) provides that “[t]he administrative officer shall administer the bylaws literally, and shall not have the power to permit any land development which is not in conformance with such bylaws.” Further, 24 V.S.A. 4445 (currently 4452) requires the administrative officer to take action if “any street, building, structure, or land is or is proposed to be erected, constructed, reconstructed, altered, converted, maintained or used in violation of any by-law adopted under [Chapter 117].”
Secondly, the plaintiff seeking mandamus must have a “clear legal right to the performance of the duty, for which there is no other adequate remedy.” On this issue, Garzo fell short. There are two types of “clear legal rights” recognized under Vermont law for purposes of obtaining mandamus; private and public. Private rights are those that arise when a special relationship exists between a citizen and a government that results in a particularized injury. A private right arises in a number of scenarios, but in the land use context, private rights typically crop up when a generally applicable government regulation disproportionately affects a particular landowner. Public rights are normally granted through statute and do not require any demonstration of injury. However, the exercise of public rights can be limited by the legislature. To provide an example, the Garzo Court referenced a public right for citizens to examine government documents, which the government can limit by restricting the manner and forum for reviewing such documents.
Garzo didn’t possess a private right to mandamus because he couldn’t demonstrate that the town’s failure to enforce the “seated customer” condition injured him more than any other resident of Stowe. Garzo didn’t possess a public right to mandamus because 4464(b) limited standing and Garzo did not qualify for any of the five categories of “interested persons.” The Court shot down Garzo’s attempt to circumvent 4464(b) by arguing that appeals of land use decisions differ from appeals of government enforcement actions in mandamus. Pointing to 24 VSA 4473, Justice Peck emphasized that the statute provides judicial review of all questions arising from government actions authorized under Chapter 117. Section 4464(b), therefore, is properly read to limit standing on all Chapter 117 questions including both appeals of permitting decisions and enforcement actions. As the legislature can properly limit the exercising of a public right, 4464(b) was effective in denying Garzo a public right for mandamus.
This case highlights three important points of land use law in Vermont. First, the Court states that 24 V.S.A 4448(a) and 4452 impose an affirmative duty on zoning administrators to enforce their community’s land use regulations to the letter. Second, “interested” citizens can compel enforcement when officials fail to meet their obligation. Third, the case demonstrates how interested citizens can become “interested persons.” Garzo could have maintained standing by timely filing a petition signed by nine other Stowe residents or by joining forces with a neighboring land owner. As land use decisions can stir emotions, it is important for both land use officials and concerned citizens to keep these points in mind in order to properly exercise their rights and defend their interests under Vermont land use law.
*Additional facts not included in the Supreme Court’s opinion were provided by Tom Jackman, Planning Director for the Town of Stowe and the unreported Lamoille Superior Court decision.
†Mr. Jackman informed the LUC Blog that the “family budget restaurant” (the “Burger N Brew”) was sold to McDonald’s, which eventually went out of business. The property, off of Mountain Road, currently houses an upscale Japanese restaurant.