Phillips Constr. Servs., Inc. v. Town of Ferrisburg, 580 A.2d 50 (Vt. 1990). · Go Syfert
Phillips Constr. Servs., Inc. v. Town of Ferrisburg, 580 A.2d 50 (Vt. 1990). Cases Citing This Book View Copy Cite
“ven where the board's ruling is ultra vires, 24 v.s.a. 4472(d) unequivocally forecloses a challenge to that ruling, absent a timely, direct appeal.”
15 citation events (13 in the last 25 years) across 2 distinct courts.
Strongest positive: Lonie Parker DBA Porky's Bkyd BBQ Co - Decision on Motion (vtsuperct, 2021-12-21)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Lonie Parker DBA Porky's Bkyd BBQ Co - Decision on Motion
Vt. Super. Ct. · 2021 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
even where the board's ruling is ultra vires, 24 v.s.a. 4472(d) unequivocally forecloses a challenge to that ruling, absent a timely, direct appeal
discussed Cited as authority (verbatim quote) Marsh Zoning Permit
Vt. Super. Ct. · 2009 · quote attribution · 1 verbatim quote · confidence high
ven where the board's ruling is ultra vires, 24 v.s.a. 4472(d) unequivocally forecloses a challenge to that ruling, absent a timely, direct appeal.
cited Cited as authority (rule) Town of Pawlet v. Daniel Banyai
Vt. · 2022 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 , 580 A.2d 50, 51 (1990) (determining permit, even if void as ultra vires, was final). ¶ 19.
cited Cited as authority (rule) Lonie Parker DBA Porky's Bkyd BBQ SP & NOV - Decision on Motion
Vt. Super. Ct. · 2020 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 (1990) (holding that § 4472 applies to ultra vires zoning board permit decisions); Levy v. Town of St.
cited Cited as authority (rule) City of St. Albans v. Arsenault - Decision on Motion
Vt. Super. Ct. · 2019 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 (1990) (holding that § 4472 applies to ultra vires zoning board permit decisions); Levy v. Town of St.
cited Cited as authority (rule) Hopkins Certificate of Compliance - Decision on Motion
Vt. Super. Ct. · 2019 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 (1990).
discussed Cited as authority (rule) In Re Appeal of Jackson
Vt. · 2003 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 , 580 A.2d 50, 51 (1990) (§ 4472 applies even if a zoning permit is alleged to have been void as ultra vires); Levy v. Town of St.
discussed Cited as authority (rule) In Re Appeal of Ashline
Vt. · 2003 · confidence medium
Servs., Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 , 580 A.2d 50, 51 (1990) (plaintiff bound by zoning board’s decision under § 4472 for failure to directly appeal the board’s actions despite claim that board acted outside scope of its authority); Levy, 152 Vt. at 142 , 564 A.2d at 1363-64 (rejecting argument that § 4472 does not apply when “the board’s decision was void ab initio”); Graves v. Town of Waitsfield, 130 Vt. 292, 295 , 292 A.2d 247, 249 (1972) (§ 4472 precluded town from contesting validity of permit despite lack of administrator’s authority to issue permit).
discussed Cited as authority (rule) City of South Burlington v. Department of Corrections
Vt. · 2000 · confidence medium
We adhered to the rule that § 4472 bars attack on a zoning decision even when the decision is alleged to have been void ab initio in Phillips Construction Services, Inc. v. Town of Ferrisburg, 154 Vt. 483, 485 , 580 A.2d 50, 51 (1990).
Retrieving the full opinion text from the archive…
Phillips Construction Services, Inc.
v.
Town of Ferrisburg
No. 89-098.
Supreme Court of Vermont.
Jun 29, 1990.
580 A.2d 50
Peter Sidel and Diana Pikulski of Sidel & Associates, Waits-field, for Plaintiff-Appellant., Geoffrey Commons of Kelley, Meub, Powers & English, Ltd., Middlebury, for Defendant-Appellee.
Allen, Dooley, Gibson, Morse, Peck.
Cited by 9 opinions  |  Published
Peck, J.

Plaintiff Phillips Construction Services, Inc. appeals from the superior court’s order granting defendant Town of Ferrisburg’s motion to dismiss. We affirm.

On March 2, 1987, William Kennerson applied to the zoning administrator of the Town of Ferrisburg for a zoning permit allowing him to rebuild a garage and make improvements to his home. According to the application, the height of the proposed structure was twenty-one and one-half feet; local zoning regulations restrict building height to twenty feet in the district in question. The applicant also indicated compliance with setback requirements in the plans submitted, but when the garage was ultimately built, plaintiff, an adjoining landowner, maintains that it did not conform to those requirements. This latter claim is still disputed by the parties, since it is based on the existence of an alleged right-of-way which is the subject of a separate action in superior court.

The application was approved on March 9, and the permit noted that pursuant to 24 V.S.A. § 4464(a), interested persons had fifteen days to appeal the administrator’s decision. The trial court found that notice of the decision was duly posted in accordance with the statute, 24 V.S.A. § 4443(b)(2). Plaintiff appealed the decision to the Zoning Board of Adjustment (ZBA) on July 1,1987. On July 7, plaintiff also appealed to the ZBA the decision of December 3, 1986, permitting a subdivision of the land where Kennerson’s home and garage are located.

In both appeals, plaintiff claimed that Kennerson had been allowed an extension of a nonconforming use without a proper variance under the Town’s zoning bylaws, and that the Town’s actions violated the bylaws and various provisions of Title 24, chapter 117. The ZBA dismissed both appeals as untimely, and plaintiff filed suit in superior court, seeking relief in the nature of a writ of mandamus to compel the Town to perform its ministerial duties. The court determined that it had no authority to order the requested relief, and granted defendant’s motion to dismiss. This appeal followed.

The trial court determined that the exclusive remedy available to plaintiff was a timely appeal to the zoning board under[*485] chapter 117, 24 V.S.A.* We agree. This Court has previously noted a clear “legislative policy to deny extraordinary relief, and other collateral remedies” to plaintiffs who had not availed themselves of the relief provided by statute. Fisher v. Town of Marlboro, 132 Vt. 533, 534-35, 323 A.2d 577, 578 (1974). The trial court was correct in deciding that it had no authority to issue a writ of mandamus. Because plaintiff did not challenge the zoning board’s actions by timely appeal under the statute, it was bound by those proceedings. McGlynn v. Town of Woodbury, 148 Vt. 340, 343, 533 A.2d 1187, 1190 (1987).

Plaintiff claims that because the Board acted outside the scope of its authority, mandamus is the appropriate relief, particularly since plaintiff alleges lack of notice of the Board’s determinations. We have recently held, however, that “even where the board’s ruling is ultra vires,” 24 V.S.A. § 4472(d) “unequivocally forecloses” a challenge to that ruling, absent a timely, direct appeal. Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 143, 564 A.2d 1361, 1363-64 (1989). Furthermore, the trial court’s opinion and order notes that after examining the permit in relation to the zoning bylaws, the court was “satisfied that the permit [was] in conformity therewith.”

The Town urges that sanctions be imposed in this case, characterizing plaintiff’s contentions as frivolous and unfounded in law. A similar motion was denied in the trial court, and we decline to reconsider it here.

Affirmed.

24 V.S.A. § 4472(a) provides that

the exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter or with respect to any one or more of the provisions of any plan or bylaw shall be the appeal to the board of adjustment under section 4464 of this title, and the appeal to a superior court from an adverse decision upon such appeal under section 4471 of this title.