Blundon v. Town of Stamford

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. 89-108
 
 
Robert Blundon                               Supreme Court
 
                                             On Appeal From
     v.                                      Bennington Superior Court
 
Town of Stamford and                         February Term, 1990
Zoning Board of Adjustment
 
 
Silvio T. Valente, J.
 
John M. Ruggiero of Abell, Kenlan, Schwiebert & Hall, Rutland, for
  plaintiff-appellee
 
J. Garvan Murtha and Gwendolyn W. Harris, Law Clerk (On the Brief),
  Brattleboro, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   Defendants, Town of Stamford (town) and Town of Stamford
Zoning Board of Adjustment (board), appeal the decision of the superior
court reversing the board's decision that denied plaintiff, Robert Blundon,
a conditional use permit.  We reverse and reinstate the board's decision.
     The facts were stipulated by the parties as follows.  Plaintiff owns a
206 acre lot in Stamford, Vermont.  Under the town's zoning ordinance, the
property is located in the forest district.  The only access to plaintiff's
lot is through an easement of at least twenty feet in width over a right-of-
way known as Coal Kiln Road.  This road is not constructed to town
standards.  It passes through part of the Green Mountain National Forest and
three other lots and continues to a county road that does meet the town
standards.
     Plaintiff began constructing a camp on his property without obtaining a
zoning permit from the town, and on August 17, 1987, he received a notice of
violation of the town zoning ordinance.  The violation was described as the
construction of a structure in the forest zone without a sewage disposal
permit or a building permit.  On August 20, 1987, the town planning
commission granted plaintiff's request for a construction permit.  Under the
zoning ordinance, however, the building of a camp in the forest zone also
requires a conditional use permit from the zoning board.  The Board denied
such a permit on October 27, 1987 because it found that the access road
leading to plaintiff's property was not in compliance with { 6.2.1 of the
zoning ordinance.  That section deals with conditional use permits in the
forest district and provides in pertinent part that "[r]oads providing
access to lots in the forest district shall be constructed to town
standards."
     Plaintiff appealed the board's decision to the Bennington Superior
Court.  The lower court reversed the zoning board decision and ordered the
board to issue plaintiff a conditional use permit once he successfully
obtained a sewer permit.  The court recognized the ordinance provision on
which the board relied, but held that another provision governed.  That
provision, { 7.2.1 of the ordinance, is part of the "General Regulations" of
the zoning ordinance and states:
	  No land development may be permitted on lots which do
	not either have frontage on a public road or public
	waters or, with the approval of the Planning Commission,
	access to such road or waters by a permanent easement or
	right-of-way at least twenty feet in width.
	 
The court held that since plaintiff's proposal met the requirements of {
7.2.1, the town's legitimate concerns for access were satisfied and the
permit should issue.  Defendants appeal the lower court's grant of plain-
tiff's conditional use permit.
     There are three issues for our consideration:  (1) whether the trial
court correctly interpreted the town's zoning ordinance; (2) whether the
town's requirement that a forest district access road meet town standards is
valid; and (3) whether the denial of a conditional use permit would render
plaintiff's property unusable.  The town must prevail on each of these
questions if we are to reverse the decision of the lower court.
     In construing a zoning ordinance, we use the same rules that we use in
construing a statute.  See Kalakowski v. John A. Russell Corp., 137 Vt. 219,
223, 401 A.2d 906, 909 (1979).  The construction problem is created in this
case because two provisions of the ordinance concern the same subject  DD
that is, access to land being developed.  "When two statutes deal with the
same subject matter and one is general and the other special, they must be
read together and harmonized if possible to give effect to a consistent
legislative policy."  City of Rutland v. Keiffer, 124 Vt. 357, 363, 205 A.2d 400, 404 (1964).  We must read the relevant sections in context and the
entire scheme in pari materia.  See Wolfe v. Yudichak, No. 86-176, slip op.
at 5 (Vt. Apr. 14, 1989).
     The two provisions involved in this case were clearly put into the
ordinance for different purposes.  The general provision contained in {
7.2.1 is intended to set minimum access requirements for all developments in
all zones.  This provision is required by 24 V.S.A. { 4406(2).  Under the
statute, a municipality may not adopt a zoning ordinance unless it contains
the provision set forth in { 7.2.1.  See 24 V.S.A. { 4406 ("No municipality
may adopt zoning regulations which do not provide for the following ....")
     The more specific provision, contained in { 6.2.1, applies only where
the landowner applies for a conditional use permit in the forest zone in
order to erect a dwelling house, including a cabin, camp, chalet or similar
seasonal and vacation structure.  The forest zone is one of three types of
districts set forth in the zoning ordinance.
     We can find no way to construe the ordinance provisions together to
reach the result that plaintiff seeks.  Even if the ordinance provisions
were viewed to be in conflict, we would have to give effect to the specific
over the general.  See Rutz v. Essex Jct. Prudential Committee, 142 Vt. 400,
405, 457 A.2d 1368, 1370 (1983).  There is, however, no direct conflict
between the provisions.  Section 7.2.1 sets a minimum access requirement
below which no development may proceed.  It does not say that development
which meets that minimum necessarily conforms to all access requirements of
the ordinance.  Not only is such a construction at variance with the words
chosen in the drafting, but it also makes superfluous and ineffective the
specific provision for conditional uses in the forest district. (FN1)  We will
not adopt such a construction.  See State v. Kreth, 150 Vt. 406, 409, 553 A.2d 554, 556 (1988).
     It is undisputed that plaintiff does not meet the requirement of {
6.2.1 of the zoning ordinance, since Coal Kiln Road does not conform to town
road standards.  The fact that plaintiff complied with { 7.2.1 of the
ordinance does not eliminate the conflict with { 6.2.1.  Thus, the trial
court erred in holding that the ordinance required a grant of a conditional
use permit to plaintiff.
     The second issue is whether { 6.2.1 is valid in light of the specific
access requirement of 24 V.S.A. { 4406(2).  The authority of the board to
establish conditional use provisions is specifically granted by 24 V.S.A. {
4407(2).  That subsection states:
	(2)  Conditional uses.  In any district, certain uses
	may be permitted only by approval of the board of
	adjustment, if general and specific standards to which
	each permitted use must conform are prescribed in the
	zoning regulations . . . .
 
	                       * * * *
 
	Such specific standards may include requirements with
	respect to:
	                       * * * *
	 
	(H) Such other factors as the zoning regulations may
	include.
 
The town argues that the ordinance establishes a specific standard for
conditional uses in the forest district and that standard is authorized by
24 V.S.A. { 4407(2).
     The trial court did not treat this argument directly because it held
that the proper construction of the ordinance required the issuance of a
permit.  Both parties have briefed it here as a possible alternative ground
to uphold the trial court's decision.  In the interest of concluding this
litigation, we exercise our discretion to reach it although the trial court
did not.
     Our resolution of this issue rests on the same grounds as the
resolution of the first issue.  Just as we cannot find that { 7.2.1 limits
the town's power to regulate access to development through a conditional
use requirement, we do not find that the identically worded statute, 24
V.S.A. { 4406(2), sets such a limit.  Since, by its terms, the statute
provides a regulatory floor, and not a limit, such a construction would be
at variance with the plain meaning of the language.  See In re Application
of 66 North Main Street, 145 Vt. 1, 2, 481 A.2d 1053, 1055 (1984) (plain and
ordinary meaning of statutory language is presumed).  The authority of the
town to adopt specific conditional use standards under the statute is broad.
We see no reason to conclude that the broad authority is somehow constrained
when the standards relate to roads and access.
     Finally, we consider whether the construction of the ordinance adopted
by the board is invalid because it renders plaintiff's land unusable.
Again, the issue was not directly addressed by the trial court, although the
court stated that "to require owners of rural or forest land to provide
access roads to that property which meet town specifications would in many
instances render such land unusable by the owner for almost any purpose."
Both parties have briefed the issue.  We conclude that, in any event,
plaintiff has failed to make a proper record to put the issue before us.
     The claim made here was also raised recently in Hinsdale v. Village of
Essex Junction, No. 87-335 (Vt. Feb. 16, 1990).  We noted in Hinsdale that
the validity of zoning regulations is "'conditioned on there remaining in
the owner some practical use of his land.'"  Id., slip op. at 10 (quoting
Galanes v. Town of Brattleboro, 136 Vt. 235, 240, 388 A.2d 406, 409 (1978)).
We declined to review a claim that the landowner was denied practical use of
his land because the landowner challenged the zoning ordinance, but failed
to appeal a decision denying him a variance.  We noted that if the landowner
"seriously thought he had been denied all practical use of his property by
the two zoning board decisions in this case, his remedy was to appeal one or
both of those decisions."  Id., slip op. at 11.
     In this case, the landowner did appeal the board decision, but he
raised only a facial attack on the requirements of the ordinance.  The
record does not indicate that he was unable to have Coal Kiln Road upgraded
to meet town standards.  Nor has plaintiff shown that he is unable to use
his land for the specific uses that are permitted in the forest district
without a conditional use permit.  In such cases, there is no requirement
that the access road meet town standards.  We also note that plaintiff has
not sought a zoning  variance and, thus, the board has been unable to review
his specific hardship claim.
     Without an adequate record, we do not believe a constitutional review
is possible or desirable.  It may be, as the trial court found, that strict
enforcement of the ordinance will render land unusable "in many instances."
It was plaintiff's burden to show that such enforcement rendered the land
unusable in this instance.
     The decision of the superior court is reversed, and the decision of the
Zoning Board of Adjustment dated October 27, 1987 is reinstated.
 
 
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice
 
 
 



FN1.    While the stipulation of facts does not state so, the parties
indicated at argument that the reason that Coal Kiln Road does not meet town
standards is that it is too narrow.  Plaintiff has not challenged this
determination.  For purposes of analysis, we assume that both of the
ordinance provisions deal only with road width, or that the only requirement
in issue is road width.