Drumheller v. Shelburne ZBA

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-203


Philip and Linda Drumheller                  Supreme Court

                                             On Appeal from
     v.                                      Chittenden Superior Court

Shelburne Zoning Board of Adjustment         April Term, 1989


Matthew I. Katz, J.

James W. Coffrin of Pierson, Affolter & Wadhams, Burlington, for
  plaintiffs-appellants

Steven F. Stitzel of McNeil, Murray & Sorrell, Inc., Burlington, for
  defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   Appellants Philip and Linda Drumheller sought a
declaratory ruling that a part of their property should be considered to be
a separate lot for the purposes of the Town of Shelburne zoning and
subdivision regulations, even though its area is less than allowed by the
zoning ordinance for the district in which it lies.  The Chittenden Superior
Court ruled that all of appellants' property must be considered to be a
single lot, and therefore that a part could not be conveyed free of local
regulation and permit requirements.  We affirm.
     The Browns, appellants' predecessors in title, acquired a 94-acre
parcel of land in 1940, including all the property now in dispute.  In 1957
the Browns conveyed a small parcel of 1.3 acres (56,628 square feet) with a
camp residence on it to the Wyeths, who conveyed it back to the Browns in
1961. (FN1) In 1987 the Browns conveyed to appellants 8.15 acres (355,014 square
feet) of land, with two residences, including what had been the Wyeth lot
and camp.
     The Town of Shelburne first adopted zoning bylaws in 1963.  In 1971, a
minimum lot size of 100,000 square feet was established for the district in
which the subject property is located. (FN2) The zoning bylaws applicable to
this case were adopted in 1985, effective January 1986, and continued the
requirement that lots in this district (Residential II) be a minimum of
100,000 square feet in area.
     In March of 1987, Philip Drumheller requested a declaratory ruling from
the Shelburne Zoning Administrator on whether the Wyeth lot continued as a
lot separate from its surroundings.  He noted that it had a separate deed
and plat recorded in the town clerk's office and that it had been taxed
separately from the surrounding land.  When the zoning administrator
answered that the Wyeth lot was no longer a separate lot but had merged into
the surrounding land also owned by the Browns, Philip Drumheller appealed to
the Shelburne Zoning Board.  While the appeal was pending, appellants
bought the property.  The board ruled that the 1.3-acre lot "is not a
preexisting lot within the meaning of Section 1490.3" of the zoning
ordinance and sustained the position of the zoning administrator.  In its
findings, the board stated that since the 1.3-acre lot was not a preexisting
lot, "a conveyance of this lot into separate ownership would violate the
Shelburne Zoning Regulations presently in effect."
     The case went from the zoning board to superior court, where appellants
sought a declaratory judgement "that [the Wyeth] parcel . . . has not been
merged into [the remaining] parcel . . . and that it may be conveyed sepa-
rate and apart from [the remaining land] . . . ."  The case was submitted on
cross motions for summary judgement, and the superior court granted the
Town's motion, holding that the parcels had merged as of the effective date
of the 1971 ordinance.  This appeal followed.
     This case is in an unusual procedural posture because the issue is
about the subdivision of land, but it has been dealt with in the context of
a zoning declaratory ruling rather than a request for a permit to subdivide
the property. (FN3) Partially as a result of the procedural posture, many of the
arguments have centered on the applicability of { 1490.3 of the Shelburne
Zoning Ordinance which provides:
Existing Small Lots.

           Any lot in individual and separate and non-affiliated
         ownership from surrounding properties in existence on
         the effective date of these regulations, may be devel-
         oped for the purposes permitted in the district in which
         it is located, even though not conforming to minimum lot
         size requirements, if such lot is not less than 1/8th
         acre in area with a minimum width or depth dimension of
         forty (40) feet.
The ordinance provision is identical to the relevant portion of the
applicable statute and is required to be included in every zoning ordinance
in the state.  24 V.S.A. { 4406(1).  Appellants point out that the existing
small lot provision regulates development and argue that there is no
proposal here to develop the Wyeth lot since it is already built upon,
despite the proposal to subdivide.
     We cannot accept appellants' narrow construction of the applicable
provisions of the zoning ordinance.  Appellants' argument is based almost
entirely on the use of the phrase "may be developed" in the existing small
lot section of the ordinance.  From the wording of the ordinance, appellants
construe the section to restrict development of undersized lots but not to
restrict the creation of a small lot that has already been developed.
Appellants' argument involves an incomplete analysis of the relevant
statutory and ordinance sections that misconstrues the use of the term
"development" in the ordinance.
     First, appellants' argument is inconsistent with the minimum lot area
requirement of the ordinance.  For the district containing the land in
question, the minimum lot size is "100,000 square feet for single family
dwellings."  Shelburne Zoning Ordinance { 730.1(a).  Section 1490.3 creates
a limited exception to the minimum lot size requirement for certain
undersized lots in existence on the effective date of the "regulations."
The parties appear to agree that the regulations referred to are those
imposing the minimum size requirement and that the Wyeth lot did not meet
the requirements of the exception.
     The failure to meet the exception is of significance only if the sale
of the Wyeth lot is itself an act subject to the zoning ordinance.  Under
the statute, the purpose of a zoning ordinance is to "permit, prohibit,
restrict, regulate, and determine land development."  24 V.S.A. {
4401(b)(1).  The term "land development" is specifically defined to include
not only the erecting of structures on the land but also the "division of a
parcel into two or more parcels."  24 V.S.A. { 4303(3).  Thus, the act of
subdividing land is itself a form of development and brings the landowner
under the authority of the zoning ordinance.
     The broad ambit of zoning power under the statute undercuts
appellants' argument that the existing small lot section to the ordinance is
irrelevant to this case because appellants do not propose to "develop" the
Wyeth lot.  In fact, the selling of part of appellants' land is by
definition developing that land under the statute.  Thus, the exception to
the minimum lot size requirement is relevant to appellants' circumstances,
and appellants fail to fit within it.  Since they fail to fit within it,
they are subject to the minimum lot size requirement of the ordinance and
violate the ordinance by creating and selling an undersized lot.
     In reaching this construction of the relevant provisions, we think it
significant that the existing small lot provision is contained in the
zoning enabling act in virtually identical words.  See 24 V.S.A. { 4406(1).
We must read provisions that are part of the same statutory scheme in pari
materia.  See Blundon v. Town of Stamford, ___ Vt. ___, ___, 576 A.2d 437,
439 (1990).  Thus, we construe the provision describing the zoning power and
the provision on existing small lots as using the same concept of
development.  Reading them together, we take the existing small lot
provision, and its requirement of "individual and separate and non-
affiliated ownership" as defining when land may be considered a separate
parcel for purposes of the definition of "land development" in { 4303(3).
     Second, the construction we have reached is most consistent with the
intent and purpose of the legislature.  See Lubinsky v. Fair Haven Zoning
Bd., 148 Vt. 47, 50, 527 A.2d 227, 228 (1986).  Only by examining
legislative intent "can an interpretation be carried out that avoids
unreasonable or unjust results, or that avoids dilution or defeat of
legislative objectives."  Id.  Lots that are smaller than the minimum lot
size requirements are nonconforming uses, allowed only because the use
preexists the applicable zoning requirement.  A goal of zoning is to phase
out such uses.  See Hinsdale v. Village of Essex Jct., ___ Vt. ___, ___, 572 A.2d 925, 930 (1990).
     Appellants' interpretation would not only frustrate the phasing out of
a nonconforming use, it would allow the re-creation of such a use after it
was extinguished.  Further, it would distinguish a situation where the
building construction precedes the land subdivision from a situation where
the subdivision occurs first, even though the result -- an undersized lot
with a home on it -- is the same in either circumstance.  Thus, appellants
ask us to create a distinction with no difference in terms of the purposes
the zoning ordinance is intended to implement.  Finally, appellants'
interpretation would allow for subdivision with no zoning review despite the
fact that the trial court found that appellants could apparently divide the
land in such a way that both lots comply with the zoning ordinance.  That
circumstance is a demonstration that it is better to evaluate the relative
merits of the subdivision under variance hardship criteria.  See 3 E.
Ziegler, Rathkopf's The Law of Zoning and Planning { 32.09, at 32-21 (1990)
(the customary means of obtaining a zoning permit for a lot that is
nonconforming with respect to area is to seek a variance). (FN4)
     In adopting a bright line interpretation of the ordinance and
statutes, we have necessarily rejected arguments appellants have made to
demonstrate why the Wyeth lot should be treated separately regardless of the
general rule.  For example, we do not attach significance to the fact that
the Town has treated the Brown property as separate lots for tax purposes
including sending separate bills and showing them as separate on the tax
maps. (FN5) Even in states that consider the merger of preexisting lots a
question of fact, such circumstances have not been considered determinative.
See Smith v. Zoning Bd. of Review of Town of Westerly, 111 R.I. 359, 368,
302 A.2d 776, 781 (1973).  No doubt this separate treatment occurred when
the Browns first sold the Wyeth lot and was not discontinued when the
property was transferred back to the Browns.  In any event, it is entirely
proper for a town to treat property as a single lot for one purpose and as
more than one lot for another purpose, given the different reasons for the
classifications.  Indeed, that disparate treatment may be a necessary result
of the differing statutory mandates on the town.
     Similarly, we do not believe that the fact that the presence of two
homes on the Brown property involves a nonconforming use of that property is
determinative.  Nothing suggests that appellants are entitled to an
automatic conversion from one form of nonconforming use (two houses on a
single lot) to another (undersized lot); indeed, the ordinance generally
prohibits such a trade.  See Shelburne Zoning Ordinance { 1420.1(1).  In any
event, we are dealing with a case where appellants are able to eliminate all
nonconformity.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice







FN1.    The Wyeth lot was described as containing 1.1 acres in 1957, but was
redrawn in 1987 to contain 1.3 acres.  The parties have agreed to treat the
1987 lot as the same parcel of land as that reacquired by the Browns in
1961.  This difference in parcel size is, therefore, not relevant to our
decision.

FN2.  In 1971, section 12(c)(1) of the Town's zoning bylaws provided:
	Beginning with the adoption of this provision (March 11,
	1971), where either public water or public sewer are not
	available the minimum lot size in any district shall be
	not less than 100,000 square feet, and each lot shall
	have a minimum frontage of 200 feet.  The requirements
	of this provision shall not apply to any lot held in
	single and separate ownership as of the effective date
	of this provision.

FN3.    In view of our conclusion, infra, that the subdivision of land is
controlled by the zoning ordinance and requires a zoning permit, the
procedural posture is not determinative.  If the issue first arose in a
request for a subdivision permit, the result would be the same because the
planning commission, which acts on subdivision permit requests, could not
approve a subdivision that would leave one lot in violation of the minimum
lot size requirement of the zoning ordinance.  See Wright v. Preseault, 131
Vt. 403, 410, 306 A.2d 673, 678 (1973) (decision denying motion to reargue).

FN4.    Our decision in In re Application of Fecteau, 149 Vt. 319, 320, 543 A.2d 693, 694 (1988) suggests that a variance from a minimum lot size
requirement is never appropriate for a lot that does not meet the existing
small lot standards of 24 V.S.A. { 4406(1).  This case is different,
however, because the presence of two houses on the property makes the usage
nonconforming.  Subdividing the land under a variance might in fact reduce
the extent of nonconformity.  Of course, the applicant would have to meet
the strict requirements of 24 V.S.A. { 4468(a).  See In re Application of
McDonald's Corp., 151 Vt. 346, 560 A.2d 362 (1989).

FN5.    We have also not considered evidence submitted by the Town that in
1976 the Browns sought and received a subdivision permit that allowed them
to sell part of their land and that the application showed all the
remainder of their land including the portion once owned by the Wyeths as
one parcel.  Thus, the subdivision plan approved and permitted by the Town
shows the Brown property as one parcel despite the separate treatment of the
Wyeth land in the tax records.  This kind of evidence has been used by
courts in other states to conclude that separate parcels in common
ownership have been merged.  See, e.g., Parks v. Board of County Comm'rs of
Tillamook County, 11 Or. App. 177, 194-95, 501 P.2d 85, 94 (1972).