In re Appeal of Korbet

2005 VT 7, 868 A.2d 720, 178 Vt. 459, 2005 Vt. LEXIS 22

• Court: Supreme Court of Vermont
• Decided: January 27, 2005
• Docket: No. 02-501
• Status: Published

Opinions

¶ 1. Brian Szad and Lois Patrie (applicants) appeal from an environmental court decision denying their application for a conditional use permit to operate a country store in the Village of Perkinsville, Town of Weath-ersfield. Applicants contend the court erred in denying the application by: (1) applying incorrect criteria for conditional use review and considering the store’s impact on an adjacent property owner; and (2) characterizing the store as a nonconforming use. We affirm.

¶ 2. The material facts are undisputed. The subject property is located on Route 106 in the center of the Village of Perkinsville. For many years, the building housed a general store, post office, and owner’s apartment. In 1996, however, the store closed, and two years later the post office moved to a location several miles outside of the village. When open, the store served as the center of activity in the village, and many residents have expressed a desire to have it reopen.

¶ 3. In 2000, applicants —who own and operate a general store in North Springfield, Vermont — purchased the subject property with plans to reopen the Perkinsville store. In June 2001, they submitted applications for site plan review and a conditional use permit (CUP). The town planning commission held hearings on the site plan application in July and August. Appellees’ Susan and Peter Korbet, who reside on the property just south of and adjacent to the store, attended one of the meetings and expressed some concerns about the proposal. In August, the planning commission approved the site plan, but imposed several conditions, including the elimination of certain proposed parking spaces in the area of a leach field, and the use of natural vegetation for a proposed privacy fence between the properties. The Korbets did not appeal the planning commission decision.

¶ 4. The town zoning board of adjustment held hearings on the CUP application in August and September. On September 19, the board granted the permit, requiring applicants to develop and operate the store in conformity with the approved site plan and stated hours of operation. The Korbets then appealed the board’s decision to the environmental court, which conducted a site visit and held an evidentiary hearing in May 2002.

¶ 5. In October 2002, the court issued a written decision, denying the CUP application because the proposal violated the Weathersfield town bylaws. The court first noted that under the town’s zoning bylaws, the store is located in an area denominated the “Village” district, where “Permitted” uses in the district include single- and two-family homes, bed and breakfast inns, and home occupations. Uses that are “permitted upon granting of a Conditional Use Approval” include “Small enterprise^,” defined as including a “small retail store.” It is undisputed that the proposed country store falls within this category of uses requiring a CUP.

¶ 6. In granting a CUP the town’s zoning bylaws require the board to consider “whether the proposed use will adversely affect... the character of the area; and/or traffic; as well as whether all applicable general and special provisions of these Bylaws would be met.” Weath-ersfield Zoning Bylaws § 4.2.2; see 24 V.S.A. § 4407(2)(B)-(D), repealed by 2008, No. 115 (Adj. Sess.), § 119(c) (authorizing local boards to allow conditional uses if the use does not adversely affect the character of the area, traffic and bylaws in effect). Most importantly, the environmental court held that applicants’ proposal did not meet the zoning requirement that “[cjommercial... parking lots adjacent to residential uses shall be setback a minimum of fifty (50) feet.” Weathersfield Zoning Bylaws § 6.13.2. The proposed parking scheme — nine spaces in the rear of the store and one on either side — violated the fifty-foot setback and lacked adequate screening from the view of persons within residential districts.¹

¶ 7. Applicants argue that the environmental court incorrectly classified the store as a nonconforming use. The bylaws define nonconforming use as “[t]he use of structures or the use of land, which use does not comply with all applicable regulations of the district in which it is located, but which did comply... prior to the adoption of these Bylaws." Id. § 6.4. The environmental court reasoned that this “small enterprise” was nonconforming because it required a CUP and one had never been obtained for the site.² The court also noted, however, that the store’s status as a nonconforming use did not advantage the applicants in any way because the proposed parking plan was not preexisting. In any event, status as a nonconforming preexisting use would not eliminate the need for compliance with the current ordinance because such use has been discontinued for more than one year.

¶8. Thus, applicants’ only alternative is to prevail on the theory of noncomplying structure. The relevant provision of the Weathersfield Zoning Bylaws states:

A structure which does not comply with all applicable regulations of the district in which it is located, but which did comply with all applicable regulations prior to the adoption of these Bylaws, or any subsequent amendments thereto, may be maintained and repaired. Such structure may also be enlarged in any manner which does not increase the degree of noncompliance, for example, such an enlargement must be in a direction where at least the minimum required setback would remain.

Id. § 6.5; see also id. § 8 (defining noncomplying structure). The environmental court held that applicants’ store is a preexisting noncomplying structure under § 6.5 because it is on an undersized lot “and the building does not comply with the setback requirements.” Because the “proposed project would not enlarge the building, [] the proposed use of the building would comply with Section 6.5.” The court held, however, that noncomplying structure protection for the building does not encompass the parking lot and therefore would not obviate the need for the parking lot to comply with the current bylaws. Applicants argue that the parking lot, as well as the building, is grandfathered by this status.

¶ 9. This conclusion is sustainable only if the parking lot is considered part of the noncomplying structure. In fact, parking does not fit the definition of structure contained in the bylaws. The bylaws define “structure” as “[a]n assembly of materials for occupancy or use, including, but not limited to: a building, mobile home or trailer, sign, wall, dock or athletic court.” Id. § 8. “We use familiar rules of construction in interpreting zoning ordinances. We first construe words according to their plain and ordinary meaning; giving effect to the whole and every part of the ordinance.” In re Stowe Club Highlands, 164 Vt. 272, 279-80, 668 A.2d 1271, 1276-77 (1995) (citing In re Vt. Nat'l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991)). The plain meaning of the definition excludes parking from its scope.

¶ 10. The dissent argues that the environmental court was required to accept the zoning administrator’s testimony, which it asserts is contrary to the court’s conclusion. We agree that the interpretation of the bylaws by the zoning board and the zoning staff “can be determinative in a close case.” In re Maple Tree Place, 156 Vt. 494, 500, 594 A.2d 404, 407 (1991). The weight to be accorded such testimony depends on the explanation of a “reason or rationale for its decision” and a demonstration that the interpretation has been consistent. In re Chatelain, 164 Vt. 597, 598, 664 A.2d 269, 270 (1995) (mem.). The zoning administrator’s testimony on this point was conclusory,³ and there was no explanation of the zoning board’s rationale. Further, there is no indication that this interpretation has been consistently applied by the board. The plain meaning of the bylaw’s language is contrary to the administrator’s interpretation. Under these circumstances, the court acted within its discretion in not following the interpretation of the zoning administrator.

¶ 11. We recognize that the bylaw could be broader and it could allow for grandfathering of noncompliant parking in the face of new requirements. See 24 V.S.A. § 4408(a)(2) (defining noncomplying structure as “a structure or part thereof not in conformance with the zoning regulations covering ... off-street parking or loading requirements”). The statutory definition allows a municipality to include off-street parking within the structure for grandfathering purposes even though the parking is not itself a structure. See id. §4303(27) (defining “structure”). The bylaw, however, failed to capture this aspect of the statutory definition. The state statute is an authorization that does not “command any particular action.” In re Stowe Club Highlands, 164 Vt. at 278, 668 A.2d at 1276. Thus, the definition in the bylaw controls. Id. at 278, 668 A.2d at 1277. The trial court determined that parking was not part of the structure, unlike minimum lot or setback requirements. We must uphold its construction of the bylaw unless it is “clearly erroneous, arbitrary or capricious.” In re Casella Waste Mgmt., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60. Here, the court’s construction is entirely reasonable, indeed unavoidable, given the limits of the definition.

1? 12. Even if the court was incorrect and the parking could properly be considered as part of the noncomplying structure, the proposal still does not meet the requirements set out in the bylaws. Under § 6.5, noncomplying structures may be enlarged but only in a “manner which does not increase the degree of noncomplianee.” Previously, the rear of the building was used for parking only by the owners, resulting in a small number of vehicles that entered the setback area. The proposal makes the rear of the building the primary location of customer parking, with nine spaces set aside for this use, greatly increasing the traffic volume in the setback area. The environmental court’s conclusion that the parking arrangement increases the degree of noncomplianee is not erroneous, arbitrary or capricious and must be upheld.

¶ 13. In view of our disposition, we need not address applicants’ argument that the environmental court, misapplied the conditional use criterion relating to the store’s impact on the character of the area and erred in holding that the proposed development did not meet this standard. See 24 V.S.A. §4407(2)(B) (allowing zoning board to issue CUP if the proposed conditional use does “not adversely affect... [t]he character of the area affected”). We conclude that the environmental court never held that the application did not meet this conditional use criterion. Rather, the court held that the permit could not be granted because the application violated the parking setback requirement, whether or not the other general conditional use standards — including that relating to effect on the character of the neighborhood — were met. See Weathersfield Zoning Bylaws §§4.2.2 (requiring proposed conditional use to meet all applicable general and special provisions of the zoning ordinance), 6.13.2 (small enterprise parking lots “adjacent to residential uses shall be setback a minimum of fifty (50) feet”).

¶ 14. We note that in presenting their evidence, applicants presented an alternative parking plan and asked the environmental court to remand the case to the zoning board to consider it. Applicants did not follow through with this proposal in their requests for findings and conclusions in the environmental court or their appeal to this. Court.⁴ Nevertheless, they are free to pursue the alternative they developed by a new submission to the zoning board either .for a CUP, if they can comply with current parking requirements, or a variance.

The environmental court decision denying the conditional use application is affirmed.

1 Under the zoning bylaws, the store was required to provide one parking space for every four hundred square feet of commercial space. Weathersfield Zoning Bylaws § 6.13.3(c). The store consists of 2800 square feet and therefore needs seven commercial spaces. In addition, the bylaws require two parking spaces per dwelling unit, resulting in a requirement of four additional spaces for the rental unit and the owner’s apartment within the building, for a total of eleven required spaces. The original permit application apparently accommodated thirteen spaces, including two in the front of the store, but the site plan approved by the town included eleven spaces, nine in the rear and two on the sides.

2 The dissent has addressed this issue, although it is unnecessary to do so. Because we do not believe that the dissent has accurately described the state of the law, we respond in this footnote. The environmental court’s decision that a use that did not have a CUP or comply with all aspects of a town’s zoning bylaws was nonconforming is supported by our opinion in In re Lashins, 174 Vt. 467, 470-71, 807 A.2d 420, 424 (2002), which in turn relied upon the holding in Town of Brighton v. Griffin, 148 Vt. 264, 269, 532 A.2d 1292, 1294 (1987). To the extent that the brief and vague footnote in In re Stowe Club Highlands, 164 Vt. 272, 279 n.5, 668 A.2d 1271, 1276 n.5 (1995), can be construed to the contrary, Lashins clarified the law on this point and we follow that law here. The environmental court did not err in rejecting the testimony of the zoning administrator. The administrator’s testimony purported to address a question of law beyond her competence.

3 The zoning administrator first testified that the former store was a noncomplying structure because it was not a noncomplying use. Later the zoning administrator testified that any zoning parking setback requirements do not apply because off-street parking is contained within’the noncomplying'structure definition in 24 V.S.A. § 4407. The zoning administrator was' not attempting to interpret the term “noncomplying structure” as used in the bylaws; instead she was relying on the statutory definition. The court was not required to defer to this testimony as it was a legal opinion, which the administrator was not qualified to give, and, as discussed’ in ¶ 11, is incorrect.

4 Despite the total lack of preservation of this proposal, the dissent argues that we should reverse the environmental court decision and direct that court to remand the matter to the zoning board to consider the alternative parking proposal. Applicants clearly waived any reliance on the alternative parking plan by failing to formally request the remand or make the plan a basis for relief in the proposed findings and conclusions. See In re Lorentz, 2003 VT 40, ¶ 5, 175 Vt. 522, 824 A,2d 598 (mem.) (refusing to consider arguments not contained in statement of questions on appeal). They again waived any reliance on it by failing .to present it to this Court. Even if applicants preserved this proposal, we fail to see how they are advantaged by a remand rather than a new submission to the zoning board. As the dissent acknowledges, the proposal must be first presented in the town review process with public notice to interested parties so they can present their views. See Simendinger v. City of Barre, 171 Vt. 648, 652, 770 A.2d 888, 894 (2001) (mem.) (noting that environmental court cannot consider issues not addressed at municipal board level); In re Maple Tree Place, 156 Vt. 494, 500, 594 A.2d 404, 407 (1991).