In re Duncan

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. 90-261


In re Robert Duncan for C.O.T.S.             Supreme Court
and in re Robert Duncan (Vaughn
and Jean Moody, David and Karen              On Appeal from
Ely, John Brown and C.R.O.O.N.E.,            Chittenden Superior Court
Appellants)
                                             October Term, 1990



Stephen B. Martin, J.

Portnow, Little & Cicchetti, P.C., Burlington, for appellants

Bauer, Gravel & Watson, Burlington, for appellees


PRESENT:  Allen, C.J., Dooley and Morse, JJ., and Peck, J. (Ret.) and
          Cashman, D.J., Specially Assigned


     DOOLEY, J.   Certain neighbors of a proposed single room occupancy
(SRO) facility, along with an organization called Concerned Residents and
Owners of the Old North End (CROONE), appeal from an order of the Chittenden
Superior Court granting a zoning permit and site plan approval to the
Committee for Temporary Shelter (COTS) to convert a building at 184 Elmwood
Avenue in Burlington into the SRO facility.  We affirm.
     The building in question has housed four apartments on the ground floor
and a bingo hall on the upper floors.  COTS has a contract to buy the
building and proposes to convert the upper floors into SRO units, primarily
to house persons in Burlington who are currently homeless.  Extensive
internal changes would be made to the building, including adding an access
ramp and an elevator to the upper floors for persons with disabilities.  The
SRO units would share common kitchen and bathroom facilities and common area
rooms for recreation.  The residents would be required to sign one-year
leases.  The building would contain a twenty-four-hour-per-day on-site
manager employed by COTS.
     The current bingo hall is a preexisting, nonconforming use under the
City of Burlington Zoning Ordinance.  It operates three nights and one
afternoon per week, and as many as 175 patrons attend.  According to the
Burlington Zoning Ordinance, the bingo operation should have forty-two off-
street parking spaces.  In fact, it has no parking for patrons, and they end
up parking throughout the neighborhood when the hall is in operation.
     COTS first sought a zoning permit from the Burlington Zoning Board.
The facility falls in a R-20 Medium Residential District and under { 8(B)(9)
of the Burlington Zoning Ordinance could be approved, if at all, only as a
conditional use.  Appellants and other neighbors [hereinafter neighbors]
appeared in opposition.  The Board granted conditional use approval by oral
decision on September 11, 1989, followed by a written decision on October
13, 1989.  COTS also went to the Burlington Planning Commission for site
plan approval.  That approval was granted on October 12, 1989.
     The neighbors appealed both decisions to the Chittenden Superior Court.
In a de novo proceeding, the court upheld the issuance of the permit and
site plan approval.  In its order of April 23, 1990, the court approved the
application of COTS, "pursuant to the plans, specifications, and site plans
admitted into evidence."  The neighbors appeal from this order, raising the
following claims of error:  (1) conditional use approval cannot be given
because the City of Burlington failed to adopt the conditional use approval
standards set out in 24 V.S.A. { 4407(2); (2) the COTS facility fails to
meet the off-street parking requirements of the City of Burlington, and COTS
failed to seek a variance from these requirements; (3) a preexisting,
nonconforming use may not be changed into a conditional use; (4) the court's
findings in support of its conclusion that the facility meets conditional
use standards are clearly erroneous; and (5) the approval order is deficient
for failure to specify exactly what was approved.
                                    I.
     The relevant ordinance provision states, "[b]oarding and rooming houses
. . . shall be permitted only if approved in advance as a conditional use by
the zoning board of adjustment."  Burlington Zoning Ordinance { 8(B)(9).
Nowhere does the ordinance state the standards that an applicant must meet
in order to receive conditional use approval.  The zoning enabling statute
authorizes conditional uses in zoning ordinances "if general and specific
standards to which each permitted use must conform are prescribed in the
zoning regulations."  24 V.S.A. { 4407(2).  The neighbors argue that in the
absence of the general standards required by statute, conditional use
approval cannot be given.
     The identical argument was raised and resolved in In re White, No. 89-
215, slip op. at 8 (Vt. Nov. 21, 1990).  In White, we held that since the
statute requires that a municipality adopt the general standards enumerated
in the statute, conditional use approval can be given under the statutory
standards even if the ordinance does not repeat them.  The evidence here was
that the Burlington Zoning Board used the statutory standards.  The trial
court likewise used the statutory standards.  The failure of the City of
Burlington to repeat the standards in the ordinance is not grounds to deny
conditional use approval.
                                    II.
     The neighbors' second argument is that the COTS proposal fails to meet
the off-street parking requirements of the Burlington Zoning Ordinance.
Section 23 of the ordinance establishes the number of parking spaces that
must be provided on-site or at a location within 400 feet of the site,
depending on the use to be made of the building.  The section comes into
effect whenever a structure is "erected, altered or established."
Burlington Zoning Ordinance { 23(A).  The parties appear to agree that under
the ordinance, the number of parking spaces that would normally be required
is seventeen.  However, the requirements can be reduced up to fifty percent
where the "regulation is unnecessarily stringent."  Id., { 23(E).  In this
case, the site has seven spaces, slightly less than half of the required
amount, and additional spaces are available on nearby properties although
all are more than 400 feet from the COTS building.
     COTS answer to the apparent parking deficiency is that the current
bingo hall is a preexisting nonconforming use that generates a far greater
parking need than the COTS use will generate.  From this fact, they argue
that they are "grandfathered" and don't have to meet the parking
requirements of the ordinance.  Their argument is supported factually by a
showing that the current lack of space poses a serious problem because bingo
hall patrons park throughout the neighborhood, and that if the ordinance
had applied, the hall would have been required to provide forty-two on-site
parking spaces.  In support of their legal position, they offered the
testimony of the city's assistant director for planning and zoning.  He
testified that where a new use needs less on-site parking than an existing
use, they are considered to be "grandfathered" to the extent of the
deficiency of the prior use and the city zoning staff does not demand
greater on-site parking.  He stated that this interpretation of the
ordinance had been in effect for the full three and one-half years he had
been part of the city zoning staff.
     The zoning board apparently followed the staff interpretation of the
ordinance.  Instructions that accompany the application for zoning board
action state that changes of non-residential uses in residential
neighborhoods are reviewed to insure that the "new uses will be no more
detrimental or harmful to the neighborhood than the previous use."  The
board's approval stated:
         The proposed uses will be less adverse to the traffic in
         the area than was the use of the building for bingo
         games but because the parking is extremely limited for
         even the proposed uses, our approval is subject to the
         applicant obtaining site plan approval with special
         attention to the parking from the Planning Commission.

The planning commission did give site plan approval, a decision also
appealed by the neighbors.  The decision requires the site to have a minimum
of six parking spaces.  The trial court accepted the testimony of the zoning
staff member and concluded that the on-site parking requirements of the
ordinance do not apply to the COTS proposal because it is "grandfathered."
The court specifically found that no variance was required to comply with
parking requirements.
     The neighbors argue that the ordinance must be construed as requiring
full compliance with the on-site parking requirements whenever there is a
conversion of non-residential uses, particularly if there is internal
renovation to facilitate the new use.  We agree that the ordinance could be
drafted to state this rule.  See 24 V.S.A. { 4408(b)(1) (municipality may
control changes of nonconforming uses to another nonconforming use);
Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So. 2d 541, 543 (Ala. 1978)
(ordinance requires that off-street parking requirements be met whenever
change of use occurs).  On the other hand, the city could conclude that off-
street parking is a use that is entitled to preexisting, nonconforming use
status and is protected against the imposition of new zoning requirements.
See Dresner v. Carrara, 69 N.J. 237, 240, 353 A.2d 505, 506 (1976) ("upon
passage of the [parking] ordinance, the continued utilization of the
property in this fashion -- without off-street parking facilities -- became
legally protected as a nonconforming use").
     The ordinance does not speak explicitly to the preexisting use issue
with respect to parking.  The nonconforming use section of the ordinance
does not address parking.  See Burlington Zoning Ordinance { 25.  The
parking section applies to structural alteration but it is not clear how
that term should apply to this case or whether it should be interpreted
without regard to the parking need an alteration might cause.  See Id., {
23(A). It goes on to say:
         Whenever there is an alteration of a structure or a
         change, extension or a conversion of a use which
         increases the parking requirements by 15% or more
         according to the standards of this section, whether
         individually or in the total additional parking
         requirements for the alteration, change, extension or
         conversion shall be provided.

Id., { 23(A) Note 4.  While the provision is not a model of clarity, it
seems to impose new parking requirements only in relation to the needs
caused by the change of use or structural alteration.  See Off Shore
Restaurant Corp v. Linden, 30 N.Y.2d 160, 168, 331 N.Y.S.2d 397, 403-04, 282 N.E.2d 299, 303 (1972). (FN1)
     In the absence of the testimony of the zoning staff member and the
position of the zoning board, we might find the on-site parking requirements
fully applicable to the COTS proposal, requiring COTS to obtain more
parking, reduce its parking need or seek a variance.  However, we have
consistently held that "absent compelling indication of error," we will
sustain the interpretation of a statute by the administrative body
responsible for its execution.  Camping Assoc. v. Department of Employment &
Training, 145 Vt. 630, 633, 497 A.2d 353, 355 (1985) (quoting In re Vermont
Health Service Corp., 144 Vt. 617, 622-23, 482 A.2d 294, 297 (1984)).  We
cannot find "compelling error" in the interpretation of the zoning board
and staff in this case.  The issue is not clearly addressed in the ordinance
and the interpretation allows for a great reduction in traffic and on-street
parking without being so rigid that no reduction will occur because use
conversions will be impossible in an old and built-up neighborhood.

                                   III.
     The neighbors' third argument is that the ordinance prohibits the
conversion of a nonconforming use, here the bingo hall, into a conditional
use.  They base this argument on { 25(A)(2) of the ordinance which permits
converting a nonconforming use only if the new use is an "allowed use under
the provisions of the district in which it is situated."  The argument is
that the term "allowed use," which is not defined either in the ordinance or
the statute, means a permitted use but not a conditional use.
     We apply a zoning ordinance according to the plain meaning of the words
and engage in further interpretation only when the plain meaning cannot be
determined.  See Smith v. Winhall Planning Comm'n, 140 Vt. 178, 183, 436 A.2d 760, 762 (1981).  We may also look to the legislative purpose and, in
any event, will apply common sense.  See Route 4 Associates v. Sherburne
Planning Comm'n, ___ Vt. ___, ___, 578 A.2d 112, 114 (1990).
     The zoning ordinance describes a boarding or roominghouse, which has
obtained conditional use approval, as a use "permitted with site plan
approval."  Burlington Zoning Ordinance { 8(B).  We have said that the
difference between a conditional use and one authorized by a variance is
that the former is permitted.  See Stevens v. Essex Junction Zoning Bd. of
Adjust., 139 Vt. 297, 302, 428 A.2d 1100, 1103 (1981).  Even if the term
"allowed" is a synonym for permitted as the neighbors argue, we would ignore
the plain meaning of the words to find that this is not an allowed use
because it required conditional use approval.  Nor can we think of any
reason why the ordinance would permit a new boarding or roominghouse in the
district, as long as it meets conditional use standards, but prohibit the
conversion of an existing use into a boarding or roominghouse.  Indeed, in
an already-developed area, boarding or rooming houses are more likely to be
created by conversion than new construction.  Under the neighbors'
interpretation of the ordinance, the permission given for such uses would
probably be illusory.
                                    IV.
     The neighbors' next argument is that certain of the findings made by
the court in support of its conditional use approval are clearly erroneous.
As the neighbors recognize, findings must stand unless clearly erroneous,
Id. at 303, 428 A.2d  at 1103, and our standard of review of conclusions
based on findings is deferential.  See Route 4 Associates v. Sherburne
Planning Comm'n, ___ Vt. at ___, 578 A.2d  at 113 (trial court decision
upheld unless it is "clearly erroneous, arbitrary or capricious").
     The disputed findings relate to the impact the SRO units will have on
the neighborhood and city services, particularly police and emergency
services.  The neighbors' position is that a facility for formerly-homeless
persons, many of whom have drug and alcohol problems or mental disabilities,
is inappropriate for a residential neighborhood.  They believe that the
experience with other SROs is irrelevant because they are not located in
residential neighborhoods.  COTS' response is that other SROs have caused
almost no increased call for police and emergency services and have had no
adverse affect on their neighborhoods, which are at least partially
residential.  They point to their tenant selection and occupancy rules,
along with the full-time presence of staff on-site, as a main reason why the
neighbors' concerns are unfounded.
     As one would expect, the evidence reflected the views and concerns of
the parties.  COTS offered the testimony of its director, describing its
experience with its existing facility, and the testimony of the director of
another program that runs an SRO, again describing the experience with the
facility.  The neighbors countered with the testimony of a Burlington
police commander and the director of a halfway house for homeless alcoholics
and addicts.  The range of the evidence allowed the trial court to find
that the COTS proposal would have virtually no impact on services and the
neighborhood, or alternatively that it would have a great impact, as the
court applied the experiences and predictions of the witnesses to the
proposal.  Its findings that the project would not have an adverse impact on
city services or on the neighborhood are adequately supported by the
evidence.  There is no error.
                                    V.
     The neighbors' last claim of error is that the court's order is not
sufficiently specific, especially since the parties submitted conflicting
proposals for operating rules governing the tenants.  The court's order
described generally the proposal and approved the application "pursuant to
the plans, specifications, and site plans admitted into evidence."  The
statute provides no specific form for the decision of the court in a zoning
appeal.  See 24 V.S.A. {{ 4471, 4472.  We take the decision to mean that the
court approved the project as proposed by the applicant, and it did not
accept modifications proposed by the neighbors.  Since the specific proposal
is contained in the exhibits, as well as the testimony offered by COTS, we
believe the order is sufficiently specific to ascertain what has been
approved.
     Affirmed.
                                        FOR THE COURT:


                                        Associate Justice



FN1.    Off Shore Restaurant Corp. v. Linden is very similar to this case in
most respects.  Although the Offshore court found a very clear expression in
the ordinance that off-street parking requirements apply whenever there is a
change of use, it narrowly construed the requirements.  Like the ordinance
here, the ordinance in Offshore applied where there was a structural
alteration.  The court defined that to mean a "change or substitution in a
substantial particular of the building itself" so as to convert the existing
building "into a different structure."  30 N.Y.2d  at 168, 331 N.Y.S.2d  at
403, 282 N.E.2d  at 303 (quoting Matter of 440 E. 102nd St. Corp. v.
Murdock, 285 N.Y. 298, 308-09, 34 N.E.2d 329, 333 (1941)).  Finding no such
alteration in the case before it, the court went on to look at a provision
like that quoted in the text above and concluded that the applicant's
obligation was to meet any increased parking requirements caused by the
change of use.  If we were to apply Off Shore to this case, we would
conclude that there has been no substantial alteration and no increased need
for on-site parking.