In re Lunde

In re Lunde  (95-589); 166 Vt. 167; 688 A.2d 1312

[Filed 10-Jan-1997]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-589


In re Appeal of Alfred W. Lunde                   Supreme Court

                                                  On Appeal from
                                                  Environmental Court

                                                  April Term, 1996


Merideth Wright, J.

       John F. Nicholls of Abare, Nicholls & Parker, P.C., Barre, for
  appellant Fecteau Construction, Inc.

       Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for appellee
  Alfred W. Lunde

       Oliver L. Twombly, Barre, for City of Barre

       Gregory M. Maguire, Tina Ruth and Dawn Allane Dreyer, Legal Intern,
  Montpelier, for amicus curiae Agency of Development & Community Affairs


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



       GIBSON, J.  Developer Fecteau Construction, Inc. appeals from two
  orders of the environmental court, which denied permits to place two mobile
  homes, one on each of two adjoining lots in a planned residential zone in
  the City of Barre.  Developer argues that Barre City zoning regulation §
  5.14.03(a)(4), prohibiting mobile homes in planned residential zones unless
  in mobile home parks, violates 24 V.S.A. § 4406(4)(A), which it claims
  requires mobile homes to be treated upon the same terms and conditions as
  conventional housing.  Neighbor Alfred W. Lunde maintains that the court
  correctly denied the permit because (1) 24 V.S.A. § 4406(4)(A) does not
  override the zoning regulation, (2) developer's proposed setback is
  inadequate, and (3) the subdivision plat expired when developer failed to
  record it within ninety

 

  days.  We hold that the zoning regulation restricting mobile homes to
  mobile home parks violates 24 V.S.A. § 4406(4)(A), and therefore reverse.

       Developer owns land in a planned residential zoning district on Lunde
  Lane in Barre. Neighbor Lunde is an abutting landowner.  Developer received
  approval from the Barre City Planning Commission on February 2, 1989 to
  divide its land into two lots.  The subdivision plat was recorded on
  January 24, 1990.  Developer sold Phillip Fernandez, Jr. an option to
  purchase Lot 1, guaranteeing a permit to place a mobile home on the lot. 
  The zoning administrator granted the permit on May 16, 1995, approving a
  mobile home with a twenty-seven-foot setback.  Neighbor Lunde, among
  others, appealed to the zoning board of adjustment (ZBA), which upheld the
  decision of the zoning administrator to grant the permit.  Neighbor Lunde
  then appealed to the environmental court.

       The environmental court reversed the ZBA on summary judgment and
  denied the permit. It concluded that the permit for Lot 1 had been granted
  in violation of Barre City zoning regulation § 5.14.03(a)(4), which
  provides that, in planned residential zones, "mobile home lots are
  permitted only in a mobile home park."  The court held that 24 V.S.A. §
  4406(4)(A) does not prohibit a municipality from requiring mobile homes in
  a particular zone to be placed in mobile home parks.  The court also held
  that zoning regulation § 5.12.04(b) allowed a setback of less than thirty
  feet, up to "a line connecting the buildings adjacent on either side of the
  lot." City of Barre Zoning Regulations § 5.12.04(b).  Because the court
  denied the permit on the basis of the mobile-home regulation, it did not
  decide whether the subdivision approval had expired by operation of 24
  V.S.A. § 4416 (planning commission approval of plat shall expire in ninety
  days unless recorded in office of clerk).

       Meanwhile, on August 8, 1995, the zoning administrator granted a
  permit to place a mobile home on Lot 2 with a setback of twenty-eight feet. 
  Neighbor Lunde appealed, raising the same issues with regard to this
  permit.  Based on the decision regarding Lot 1, the environmental court
  denied this permit as well.  Developer appeals.  The City of Barre and the

 

  Agency of Development and Community Affairs have filed briefs in support of
  developer, solely on the issue of the interpretation of 24 V.S.A. §
  4406(4)(A).

                                     I.

       Section 4406(4)(A) provides:

        (4)  Equal treatment of housing
             (A)  Except as provided in section 4407(6) of this title, no
             zoning regulation shall have the effect of excluding mobile homes,
             modular housing, or other forms of prefabricated housing from the
             municipality, except upon the same terms and conditions as
             conventional housing is excluded.

  (Emphasis added.)  Neighbor Lunde argues that the plain meaning of the
  language makes clear that towns are prohibited from excluding mobile homes
  "from the municipality," not "from any zone in the municipality."  Thus, he
  maintains that a municipality may restrict mobile homes in any zone or
  limit them to mobile home parks, provided the municipality allows for
  mobile homes somewhere within its borders.  We reject this construction for
  several reasons.

       First, the plain meaning of the last clause of § 4406(4)(A) supports
  developer's construction; mobile homes may not be excluded "except on the
  same terms and conditions as conventional housing."  Thus, municipalities
  may not single out mobile homes and require them to be placed in mobile
  home parks because there is no such condition on conventional housing.
  Municipalities are not required to allow mobile homes in every zone;
  however, § 4406(4)(A) requires mobile homes to be treated the same as
  conventional housing.  The only exception to this rule is "as provided in
  section 4407(6) of this title," which refers to design control districts,
  not at issue in this case.

       Second, if there was any doubt as to the meaning of the language in §
  4406(4)(A), the legislative history indicates in no uncertain terms the
  intent to prohibit any discrimination in zoning against mobile homes.  In
  particular, the history reveals the intent to prohibit any municipality
  from requiring that mobile homes be placed in mobile home parks.  In 1976,
  when the Legislature enacted § 4406(4)(A), it simultaneously repealed 24
  V.S.A. § 4407(11).  See

 

  1975, No. 236 (Adj. Sess.), §§ 1,4.  The repealed subsection provided that
  "[a]ny municipality may require that a mobile home may be used for
  residential purposes only if located in a trailer park authorized by such
  municipality."  1969, No. 116, § 7.  By this action the Legislature
  expected to prohibit municipalities from limiting mobile homes to mobile
  home parks, addressing precisely the regulation at issue here.

       In addition to the repeal of § 4407(11), the history of § 4406(4)(A)
  demonstrates that the Legislature intended municipalities to treat mobile
  homes in the same manner as conventional housing.  The construction that
  neighbor Lunde urges upon us was expressly rejected by the entire House of
  Representatives twice.  On February 10, 1976, Representative Chaloux moved
  before the House to strike subsection (A) and insert instead:

     (A)  A municipality need not allow mobile homes in every district
     where residential uses are allowed provided the municipality does
     allow mobile homes in one or more districts within the
     municipality.  These districts may not be limited to mobile home
     parks.

  H. 436, Vt. House Jour. 155 (Feb. 10, 1976).  The Chaloux amendment was
  rejected by a vote of ninety-eight to forty-seven.  A similar proposal had
  been rejected on February 6, 1976.  See id. at 148 (Feb. 6, 1976). 
  Consequently, we reject neighbor Lunde's contention that § 4406(4)(A) was
  intended to prevent municipalities from excluding mobile homes "from the
  municipality," but to allow restricting mobile homes to mobile home parks
  or to a particular zone.(FN1)  We conclude that Barre City zoning regulation
  § 5.14.03(a)(4) violates 24 V.S.A. § 4406(4)(A) by treating mobile homes
  differently from conventional housing.

 


                                II.

       Neighbor Lunde also argues that the court erred by concluding that
  zoning regulation § 5.12.04 allows a setback of less than thirty feet. 
  Section 5.12.04 provides in part:

     (b) Except as provided in subsection (c) of this section, no part
     of any lot used for residential use shall be constructed nearer to a
     street line than a line connecting the buildings adjacent on either
     side of the lot.

     (c) No building on a lot used for residential use shall be
     constructed nearer than thirty feet of the street line . . . .

  The court held that the general rule is that the minimum front setback is
  thirty feet.  It concluded that subsection (b) is an exception to this
  rule, which allows a reduced setback if a line connecting the two buildings
  on either side of the building site is closer than thirty feet to the
  street line.  Thus, if the neighbor on each side has a setback of ten feet,
  the new building could have a setback of ten feet.  "Our standard of review
  of the trial court construction [of a zoning ordinance] is whether it is
  clearly erroneous, arbitrary or capricious."  Houston v. Town of
  Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994).

       Neighbor Lunde contends that the court erred in its construction.  He
  maintains that the general rule is that the setback is defined by a line
  connecting the buildings on the lots on either side of the building site. 
  According to Lunde, subsection (c) is an exception that allows a reduced
  setback of thirty feet even if the adjacent buildings are farther than
  thirty feet from the street line.

       The language appears to support Lunde's construction.  The regulation
  clearly makes (c) the exception to (b).  There is no exception to (c),
  making the minimum front setback thirty feet from the street line.  This
  construction, however, renders (b) completely unnecessary and of no effect
  at all.  If the neighbor on each side is set back fifty feet, then the new
  building may be set back thirty feet under the exception.  If the neighbor
  on each side is set back ten feet, then the new building must still be set
  back thirty feet because there is no exception to (c).  Thus, subsection
  (b) would become entirely superfluous if we accept neighbor Lunde's
  construction.

 

  Generally, we do not construe a statute "`in a way that renders a
  significant part of it pure surplusage.'"  Trombley v. Bellow Falls Union
  High Sch., 160 Vt. 101, 104, 624 A.2d 857, 860 (1993) (quoting State v.
  Beattie, 157 Vt. 162, 165, 596 A.2d 919, 921 (1991)).

       We presume then that the line-between-adjacent-buildings rule was
  intended to be an exception to the thirty-foot-setback rule.  Although this
  is not the plain meaning of the regulation, this construction gives effect
  to both subsections.  The dissent would enforce both subsections as
  absolute rules: no building may be constructed closer to the street line
  than the line connecting adjacent buildings, nor may a building be
  constructed closer to the street line than thirty feet.  This construction
  conflicts with the plain language of the regulation, which clearly intended
  one section to be an exception to the other, and gives no deference to the
  trial court, which must be "clearly erroneous" to be reversed.  Moreover,
  "[i]t is obviously unfair to require a landowner to observe a setback
  restriction which requires him to build substantially further from the
  street than the front line of existing buildings on adjacent property."  K.
  Young, 2 Anderson's American Law of Zoning § 9.56, at 295 (4th ed. 1996).

       We, therefore, agree with the trial court that the front setback is
  thirty feet unless the line connecting the neighbors on either side is less
  than thirty feet.  Because the facts are inadequate to determine the
  required setback on either Lot 1 or 2, we agree with the court that summary
  judgment on this issue must be denied.

                                    III.

       Finally, neighbor Lunde argues that the permit must be denied because,
  under 24 V.S.A. § 4416, the subdivision plat expired ninety days after
  approval of the planning commission when developer failed to record it in
  the clerk's office.  Section § 4416 states: "The approval of the planning
  commission . . . shall expire ninety days from such approval . . .  unless,
  within such ninety-day period, such plat shall have been duly filed or
  recorded in the office of the clerk of the municipality."  Because the
  trial court did not rule on this issue, we decline to do so for the first
  time in this Court.  See Sabia v. Neville, 7 Vt. L.W. 293, 296 (1996).

 

       Reversed and remanded.

                                   FOR THE COURT:

                                   __________________________________
                                   Associate Justice




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                                  Footnotes



FN1.   Transcripts of the hearings before the Senate Natural Resources
  Committee are not persuasive because the Committee's proposal was rejected
  by the full Senate.  See H.436, Vt. Sen. Jour. 299-304 (Mar. 17, 1996). 
  The Committee's proposal would have allowed municipalities to "treat a
  class of residential housing differently from another," if the municipality
  showed an adverse effect on public welfare or municipal finances.  See id.
  at 299. The language of the bill as enacted was an amendment made on the
  floor of the Senate, proposing language almost identical to that previously
  passed by the House.



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                          Concurring and Dissenting

 

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-589


In re Appeal of Alfred W. Lunde                   Supreme Court

                                                  On Appeal from
                                                  Environmental Court

                                                  April Term, 1996


Merideth Wright, J.

       John F. Nicholls of Abare, Nicholls & Parker, P.C., Barre, for
  appellant Fecteau Construction, Inc.

       Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for appellee
  Alfred W. Lunde

       Oliver L. Twombly, Barre, for City of Barre

       Gregory M. Maguire, Tina Ruth and Dawn Allane Dreyer, Legal Intern,
  Montpelier, for amicus curiae Agency of Development & Community Affairs


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



       ALLEN, C.J., concurring and dissenting.   I dissent to Part II of the
  majority opinion in which the Court holds that, under § 5.12.04 of the City
  of Barre Zoning Regulations, the front setback for residential lots is
  thirty feet unless the line connecting adjacent buildings on either side of
  the property in question is less than thirty feet.  See ante, at 6.

       "Where the meaning [of a zoning regulation] is plain, courts have the
  duty to enforce the enactment according to its obvious terms . . . ." 
  Kalakowski v. John A. Russell Corp., 137 Vt. 219, 223, 401 A.2d 906, 909
  (1979).  The majority's holding that subsection (b) (the line-
  between-adjacent-buildings rule) was intended to be an exception to
  subsection (c) (the thirty-foot-setback rule) is contrary to the plain
  language of the regulation.  Under the ordinance, subsection (b) is the
  general rule and subsection (c) is a limitation on that rule.  Thus, the
  minimum setback for residential lots is at the line connecting adjacent
  buildings.  This rule does

 

  not apply, however, when that line or a portion thereof is closer to the
  street than thirty feet. When this occurs, the language of subsection (c),
  that no building be constructed nearer than thirty feet of the street line,
  comes into play and limits the general rule set forth in subsection (b). 
  Not only does this interpretation give effect to both subsections, but it
  also adheres to precedent by following the plain language of the
  regulation.

       Because both permit applications requested setbacks of less than
  thirty feet, I would affirm the environmental court's denial of the
  permits.  I am authorized to state that Justice Morse joins in this
  dissent.





                              _______________________________________
                              Chief Justice