Franklin County v. City of St. Albans

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. 89-224
 
 
Franklin County                              Supreme Court
 
                                             On Appeal From
     v.                                      Franklin Superior Court
 
City of St. Albans                           January Term, 1990
 
 
Matthew I. Katz, J.
 
Richard A. Gadbois, Enosburg Falls, for plaintiff-appellee
 
Farrar & Cuonos, P.C., St. Albans, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     ALLEN, C.J.   The City of St. Albans appeals from a superior court
order declaring that resumption of overnight housing of prisoners at the
Franklin County jail would not constitute a prohibited change, expansion,
enlargement or extension of a nonconforming use.  We affirm.
     The Franklin County jail was used to house overnight prisoners until
September 4, 1981.  Some remained there for as long as three months.
Sheriff Roland Keenan announced that as of that date he was not accepting
overnight prisoners or housing those over whom he had custody.  His reasons
were the age and condition of the facility and concern that he faced
personal liability if he continued to allow use for overnight prisoners.
The trial court found that after September 4, 1981 the jail has been used
solely for daytime lockup, typically two to three times a week and for up to
five or six persons at a time.
     The present St. Albans zoning regulations were adopted in 1977 and
place the facility in its high-density residential zone, which does not
permit jails.  Section 602 of the regulations relates to nonconforming uses;
it states:
	Any non-conforming use of structures or land, except
	those specified below, may be continued indefinitely,
	but:
 
	              *     *     *
 
	[602.2] Shall not be changed to another non-conforming
	use without approval by the Zoning Board, and then only
	to a use which, in the opinion of the Zoning Board, is
	of the same or of a more restricted nature.
 
	[602.3] Shall not be re-established if such use has been
        discontinued for a period of one year, or has been
        changed to, or replaced by, a conforming use.  Intent to
        resume a non-conforming use shall not confer the right
        to do so.
 
     However, { 604 of the ordinance permits the expansion of any legal
nonconforming use, on Board approval, "providing it does not adversely
affect the surrounding areas and providing it meets the same criteria as for
special conditional use."
     The present Franklin County sheriff, Dale Messier, appeared before the
St. Albans Zoning Board of Adjustment in January and February, 1988 seeking
the Board's approval of resumption of the jail's use as an overnight
facility for prisoners. (FN1)  The Zoning Board denied the permission, and the
County filed the present action for declaratory relief, together with an
appeal of the Board's denial, pursuant to 24 V.S.A. { 4472.  The trial court
concluded that "the resumption of overnight housing of prisoners, and an
increase in the number of occupied cells, at the Franklin County jail, will
not constitute a prohibited change, expansion, enlargement, or extension of
the preexisting nonconforming use."  The present appeal followed.
     The City's appeal interweaves, and sometimes combines, two distinct
themes.  First, it argues that the County in effect abandoned or
discontinued the use of the jail as a facility for the housing of prisoners
(other than what it characterizes as casual, non-overnight confinements).
That abandonment left the jail as a nonconforming structure, but with its
permitted uses limited to those that occurred after September, 1981 --
County administrative functions and the casual housing of a few daytime
prisoners.  The City then goes on to measure the scope of the County's
proposed expansion against this post-1981 norm and to compare that level of
proposed use to the uses in other cases where significant new activities
were barred as impermissible for nonconforming structures.
     In sum, the City first argues that the pre-1981 jail uses have been
abandoned, leaving the jail as a nonconforming use with very limited
functions, and then contends that, measured from its lowered threshold, the
proposed use of the jail for housing prisoners in the pre-1981 manner would
be an impermissible expansion of a nonconforming use.
     We must first address the question of whether the County ever
abandoned or discontinued the full range of nonconforming uses preserved for
the jail prior to September 4, 1981, or whether, in the words of the trial
court, there was, after that date, "very substantial attenuation, but not
cessation," and hence no abandonment.  Defendant contends that the essential
nature of the jail facility was changed when it ceased to be a "correctional
public facility."  The County does not differ with the City that since
September 4, 1981 no prisoners have been housed in the Franklin County jail
by the Vermont Commissioner of Corrections.  But the City's stress on the
formal commitment of prisoners to the facility, as opposed to casual, but
continuous use after 1981, is not sufficient to demonstrate abandonment.
The trial court's findings that the jail has been used in the post-1981
period for daytime lockup, typically two to three times a week and for up to
five or six persons at a time, is supported by the testimony of a deputy
sheriff who was on hand in the intervening years.  The record does not
reflect the abandonment of jail functions claimed by the City and
exemplified in the cases it relies on.  In Wyatt v. Bd. of Adjustment, 622 P.2d 85 (Colo. App. 1980), a beauty shop ceased operations for twelve
months, and the right to resume the nonconforming use was lost.  There was
no evidence, however, that the shop maintained any level of operations in
the twelve months after shutdown.  Id. at 86.  Nor was it in doubt that the
gas station and used car lot in Miorelli v. Zoning Hearing Board, 373 A.2d 1158, 1160-61 (Pa. Commw. Ct. 1977) had been abandoned when it was used as a
machine shop for seven years.
     In the present case, the use of the jail changed significantly in 1981,
but the jail did not disappear.  A reduction in the level of activities does
not imply abandonment.  Union Quarries, Inc. v. Bd. of County Comm'r, 206
Kan. 268, 274-76, 478 P.2d 181, 187 (1970) (no abandonment by operators of
quarry, who left large stockpile of rock and equipment, paid royalties, sold
small quantities of rock, and quoted prices for crushed rock); McLay v.
Maryland Assemblies, Inc., 269 Md. 465, 470, 306 A.2d 524, 527 (1973)
(ammunition manufacturer which kept equipment in place and kept office open,
despite lack of orders, did not abandon nonconforming use); City of
Binghampton v. Gartell, 275 App. Div. 457, 462, 90 N.Y.S.2d 556, 560-561
(1949) (occasional purchase of junk in the conduct of business shows lack of
substantial evidence to establish abandonment); Donham v. E.L.B., Inc., 8
Ohio Misc. 2d 31, 33, 457 N.E.2d 953, 956 (1983) (junkyard owner continued
at least some prior uses, including storage and some buying and selling of
junk, and did not abandon nonconforming use);   Appeal of Haller Baking Co.,
295 Pa. 257, 263, 145 A. 77, 79-80 (1928) (use of stable diminished
materially, but the stable was still used for its original purpose and was
not abandoned).
     The trial court concluded that no cessation had occurred, and that
conclusion is not "clearly unreasonable, irrational, arbitrary or
discriminatory."  DeWitt v. Town of Brattleboro Zoning Bd. of Adjustment,
128 Vt. 313, 319, 262 A.2d 472, 476 (1970); see also Turcuit v. City of
Galveston, 658 S.W.2d 832, 835 (Tex. Ct. App. 1983).  If the nonconforming
use was not abandoned, as the trial court concluded, then resumption of
activity at the jail to pre-1981 levels, so long as it was within the range
of the previous activity and not greater than the maximum activity within
that pre-1981 range, was not an expansion as a matter of law.  Union
Quarries, Inc., 206 Kan. at 276-77, 478 P.2d at 187-88; James H. Maloy, Inc.
v. Guilderland Town Board, 92 A.D.2d 1056, 1057, 461 N.Y.S.2d 529, 531
(1983).
     The trial court went on to conclude that even if the nonconforming use
level of activity were to be frozen at the post-1981 level, the resumption
of the facility's use for overnight prisoners was merely an increase in
volume and intensity, not a proscribed change. (FN2)  See Black v. Town of
Montclair, 34 N.J. 105, 117-18, 167 A.2d 388, 395 (1961); Ruhn v. C.P.
Craska, Inc., 59 App. Div. 2d 1016, 1017, 399 N.Y.S.2d 749, 750 (1977); 1
R. Anderson, American Law of Zoning, 565, 597 (3d Ed. 1986).  That
conclusion was similarly without error.
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Chief Justice



FN1.     Plaintiff appears to have had a twofold basis for its superior court
action, seeking both declaratory relief on the question of whether the
proposed use of the jail for overnight prisoners was a prohibited expansion
of a nonconforming use and an appeal from the Board decision.  The Board, in
turn, appears from the trial court decision and from the record before us to
have decided two questions:  first, that the proposed use of the jail for
overnight prisoners was an expansion of a nonconforming use barred under the
City zoning ordinance, and second, that the County did not merit a special
exception under { 604 of the ordinance.  The judgment order of the trial
court granted the declaratory relief sought by plaintiff and did not reach
the { 604 issue.  No cross-appeal was filed, and consequently, no { 604
issue is raised on appeal.

FN2.     Since there were no findings that the resumption of overnight use of
the facility would exceed pre-1981 levels, and the record reflects no
evidence to that effect, the trial court's additional findings were
consistent with, but not necessary to, the result the court reached.