Route 4 Assoc. v. Sherburne Planning Commission

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
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                                No. 89-188


Route 4 Associates                           Supreme Court

    v.                                       On Appeal from
                                             Rutland Superior Court
Town of Sherburne Planning
Commission and Town of Shelburne             May Term, 1990



Arthur J. O'Dea, J.

Donald R. Powers and Geoffrey Commons of Kelley, Meub, Powers & English,
   Ltd., Middlebury, for plaintiffs-appellants


Liam L. Murphy and Deborah L. Markowitz of Langrock Sperry Parker & Wool,
   Burlington, for defendant-appellee



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


     GIBSON, J.   Petitioner Route 4 Associates appeals from a decision of
the superior court denying an application for a planned unit development
(PUD) in the Town of Sherburne.  We affirm.
     Petitioner seeks PUD approval for construction of a 100-unit hotel on
property separated by a privately owned strip of land approximately 50 feet
in width and 450 feet in length.  The separated lots are 3.8 acres and 2.39
acres in size.  The Town of Sherburne Planning Commission denied petition-
er's application on the ground that neither parcel met the five-acre
minimum-lot-size requirement set forth in the town's zoning ordinance.  On
appeal, the superior court conducted a de novo review and, with the consent
of the parties, addressed the threshold question of whether petitioner's
two lots are "contiguous" and, thus, one unit pursuant to the zoning
regulations.  The court found that the titleholder of the privately owned
strip of land separating petitioner's property was neither a subscriber nor
a party to the PUD application, and concluded that, since the two lots do
not touch each other, the application does not meet the zoning ordinance's
five-acre minimum-lot-size requirement.  In its appeal to this Court,
petitioner argues that (1) the word "contiguous" may be interpreted to
include parcels not in actual physical contact, and (2) the town regulation
stating that words undefined in the regulations shall be used as defined in
a specified dictionary is an impermissible delegation of the town's
authority.
     We conclude that the trial court's decision was not clearly erroneous,
arbitrary, or capricious.  See Application of McDonald's Corp., 151 Vt. 346,
348-49, 560 A.2d 362, 364 (1989).  The Sherburne Zoning Regulations require
a PUD to have a minimum lot area of five acres.  { 240.6.  "Lot area" is
defined as the "[t]otal contiguous area within the property lines of a lot,
calculated by horizontal projection, but excluding any part thereof lying
within the boundaries of a public or non-public vehicular right-of-way,
existing or proposed."  Id. { 120.2.  Although the regulations do not define
"contiguous," "[w]ords not specifically defined [in the regulations] shall
be used as defined in a Webster's New Collegiate Dictionary no more than 5
years old."  Id. { 120.1.  Webster's Ninth New Collegiate Dictionary,
copyrighted in 1986, defines "contiguous" as follows:
          1 : being in actual contact: touching along a boundary
          or at a point  2 of angles : ADJACENT  3 : next or near
          in time or sequence  4 : COTERMINOUS
     When construing the meaning of the word "contiguous" as applied to
ownership of land, most courts, including this Court, have accorded the word
its primary, ordinary meaning of touching.  See, e.g., Bullis v. Town of
Grand Isle, 151 Vt. 503, 504, 561 A.2d 1359, 1360 (1989) (construing tax
assessment statute and recent opinion, Court held that "properties that do
not share a common border are not contiguous"); Ehle v. Tenney Trading Co.,
56 Ariz. 241, 245, 107 P.2d 210, 212 (1940) (construing homestead statute,
court held that "contiguous" requires actual contact in accordance with
common meaning of word); Seckman v. Georgia Power Co., 155 Ga. App. 204,
205, 270 S.E.2d 328, 329 (1980) (two tracts separated by private right of
way used for electric transmission lines are not "contiguous" with respect
to consequential damages of condemnation proceeding despite fact that owner
of two tracts had easement across right of way); Hillman v. City of
Pocatello, 74 Idaho 69, 71, 256 P.2d 1072, 1073 (1953) (under annexation
statute, "contiguous" construed in primary and obvious sense of coterminous
or abutting); In re Board of Directors of Hazelton School District, 105 Pa.
Commw. 565, ___, 524 A.2d 1083, 1085 (1987) (statute mandating that regions
of multicounty school district be composed of "contiguous" election dis-
tricts prohibited any break in continuous physical territory, no matter how
small); Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 901 (1988) ("contiguous" as used in annexation statute must be afforded its
ordinary meaning of touching); Lien v. Northwestern Eng'g Co., 73 S.D. 84,
95, 39 N.W.2d 483, 489 (1949) (since "contiguous" in its primary sense
means actual contact or touch, there was no fact question in this respect
for jury).
     There may be exceptions to this general rule.  See, e.g., Thomas v.
Sternhagen, 178 Neb. 578, 584, 134 N.W.2d 237, 241 (1965) (two tracts
separated by public highway are "contiguous" pursuant to homestead statute
where both tracts were used and operated as one farm); Town of Lyons v. City
of Lake Geneva, 56 Wis. 2d 331, 335, 202 N.W.2d 228, 231 (1972) (when gap of
23 feet is part of public road, parcel is close enough to city limits to be
contiguous).  In most cases, however, the looser meaning is applied only
where the contractual or legislative intent, or the nature of the subject
under consideration, indicate that such an application is appropriate.  See,
e.g., State v. Hunter, 80 F.2d 968, 969 (5th Cir. 1936); Lewis v. City of
Los Angeles, 137 Cal. App. 3d 518, 522, 187 Cal. Rptr. 273, 276 (1982)
(legislative purpose of statute making schools liable for injuries caused by
city's failure to provide crosswalks in roadways "contiguous" to school
grounds precluded the requirement that the roadways be in actual contact
with school grounds); Stamm Elec. Co. v. Hamilton-Brown Shoe Co., 350 Mo.
1178, 1182, 171 S.W.2d 580, 582 (1943).
     In the instant case, both legislative purpose and common sense lead us
to the conclusion that the word "contiguous" should be construed in its
primary, narrow sense.  PUDs are intended to permit "developments of larger
parcels of land which will provide a desirable and stable environment," and
"flexibility in design, placement of buildings, use of open spaces,
circulation facilities, and off-street parking areas."  Town of Sherburne
Zoning Regulations { 505.  Were we to construe the word "contiguous" so that
any parcels "near" each other had to be reviewed for PUD approval, we would
be undercutting both the flexibility component that is inherent in larger
parcels and crucial to PUDs, as well as the certainty and reliability of the
regulation itself.  Cf. In re Lancaster City Ordinance No. 27-1952, 374 Pa.
546, 548, 98 A.2d 34, 35 (1953) ("If contiguity can leap 30 feet, it can
leap 300 feet or 30 miles.").
     In support of its argument, petitioner cites Board of Comm'rs of
Township of O'Hara v. Hakim, 19 Pa. Commw. 661, 666, 339 A.2d 905, 908
(1975), in which the court held that a 14.6-acre parcel and a 2.9-acre
parcel could be considered as one unit in satisfaction of a statute
requiring that a PUD be developed on not less than fifteen acres.  That
case, however is distinguishable.  Aside from the fact that one of the
parcels was just short of the required fifteen acres and the original tract
had been separated when the state condemned an easement of right of way to
relocate a road, the township zoning ordinance did not require that the land
be contiguous.  Here, on the contrary, the intervening land is privately
owned in fee simple, and the town regulations explicitly require that the
proposed development be on a lot that has a contiguous area of at least five
acres.
     We reject petitioner's argument that, by adopting dictionary
definitions for undefined words, the town delegated its authority to the
editorial board of Webster's New Collegiate Dictionary.  The dictionary is
merely a compendium of plain and commonly accepted meanings, which we
presume are intended by statutory language.  See State v. Yudichak, 147 Vt.
418, 420, 519 A.2d 1150, 1151 (1986).
     Affirmed.

                              FOR THE COURT:


                              ___________________________________________
                              Associate Justice