Phillips Construction Services, Inc. v. Town of FerrisburgPhillips Construction Services, Inc. v. Town of Ferrisburg
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 aрplied to the zoning administrator of the Town of Ferrisburg for a zoning permit allowing him tо rebuild a garage and make improvements to his home. According to the аpplication, the height of the proposed structure was twenty-one аnd one-half feet; local zoning regulations restrict building height to twenty feet in the distriсt in question. The applicant also indicated compliance with setbаck requirements in the plans submitted, but when the garage was ultimately built, plaintiff, an adjоining landowner, maintains that it did not conform to those requirements. This latter claim is still disрuted 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 decisiоn 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 appeаled to the ZBA the decision of December 3, 1986, permitting a subdivision of the land wherе Kennerson’s home and garage are located.
In both appeаls, plaintiff claimed that Kennerson had been allowed an extension of a nonconforming use without a proper variance under the Town’s zoning bylaws, аnd 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 chapter 117, 24 V.S.A.
Plaintiff claims that because the Board aсted 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 thаt ruling, absent a timely, direct appeal. Levy v. Town of St. Albans Zoning Bd. of Adjustment,
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.
Notes
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, undеr 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 frоm an adverse decision upon such appeal under section 4471 of this title.