In re Scheiber

In re Scheiber  (97-150); 168 Vt. 534; 724 A.2d 475

[Filed 24-Dec-1998]


       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. 97-150


In re Richard Scheiber                 Supreme Court

                                       On Appeal from
                                       Washington Superior Court

                                       May Term, 1998


David A. Jenkins, J.

Matthew C. Colburn, Law Office of Richard A. Unger, Montpelier, for
Appellant.

Glenn C. Howland of McKee, Giuliani & Cleveland, P.C., Montpelier,
for Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Petitioner Richard Scheiber appeals from a Washington
  Superior Court order concluding that respondents Fred and Leonia Pike,
  neighbors of Scheiber, need not obtain a zoning permit to use a shooting
  range on their property.  Scheiber claims that the town zoning regulations
  prohibited such use, or, in the alternative, required a permit for
  continued use.  We affirm.

       Scheiber and the Pikes live in Cabot, about one-half mile from each
  other, in an area zoned as a low density residential and agricultural
  district.  In 1989, the Pikes created a shooting range on their property by
  removing approximately ten trees, moving topsoil to fashion an earthen
  backstop or berm, and erecting a small platform.  The completed range was
  approximately thirty feet wide by one hundred yards long, and could
  accomodate up to four people at a time.  The superior court found that the
  Pikes used the range sporadically, primarily for family use, but that the
  use had increased, especially on weekends.  On three occasions, they used
  the range in connection with a rifle safety course for the benefit of the
  local chapter of the American Pistol and Rifle Association (APRA), and the
  APRA chapter held four annual picnics

 

  at the range.

       In August 1991, Scheiber complained to the Cabot Zoning Administrator
  that the Pikes' use of their land violated the Town and  Village of Cabot
  Zoning Regulations.  His concern was based primarily on the fact that the
  weapons were fired in the general direction of his house and that the
  resulting noise created a disturbance.  The zoning administrator found no
  violation of the regulations.  Scheiber appealed to the Zoning Board of
  Adjustment, which affirmed the zoning administrator's decision.

       Scheiber then appealed to the Washington Superior Court, which
  reviewed the case de novo pursuant to 24 V.S.A. § 4472(a).  The court
  characterized the firing range as a "private accessory residential  use"
  which did not implicate the zoning regulations, and, therefore,  did not
  require a permit.  This appeal followed.

       We review the trial court's ruling for clear error.  See Route  4
  Assocs. v. Town of Sherburne Planning Comm'n, 154 Vt. 461, 462, 578 A.2d 112, 113 (1990).  Scheiber argues, in the alternative: (1) that the
  shooting range constituted "land development" requiring a permit under
  State law; (2) that the range required a conditional use permit (CUP) as
  either a "private club" or "accessory use" within the meaning of the zoning
  regulations; (3) that even if it did not require a CUP, the range
  constituted a "private recreational use" requiring a zoning permit; and (4)
  that if the range did not fall within any of the foregoing categories, it
  was by definition a prohibited use under § 1.3 of the zoning regulations,
  which states that "[a]ny use not permitted by these Regulations shall be
  deemed  prohibited."  Town and Village of Cabot Zoning Regulations § 1.3. 
  We  address each of these arguments in turn.

       Scheiber first contends that the range constituted land development
  requiring a permit under State law.  The contention is unpersuasive.
  Pursuant to 24 V.S.A. § 4443(a)(1), "[n]o land development may be commenced
  [within any municipality having adopted zoning regulations] within the area
  affected by such zoning regulations without a permit therefor issued by the
  administrative officer."  The term "land development" is defined as the 
  "construction, 

 

  reconstruction, conversion, structural alteration, relocation or
  enlargement of any building or other structure . . . and any change in the
  use of any . . . structure, or land, or extension of use of land."  24
  V.S.A. § 4303(3).  The statute defines "structure" as an  "assembly of
  materials" for use, including but not limited to a wall or fence.  24
  V.S.A. § 4303(11).  Based on the evidence that the Pikes had cut ten trees
  and constructed a backstop and a shooting stand, the trial court could
  reasonably conclude that the Pikes had not created a structure or changed
  the use of their land within the meaning of the statute.  Accordingly, the
  court's conclusion must be  upheld.  See Vermont Agency of Natural
  Resources v. Handy Family Enters., 163 Vt. 476, 485, 660 A.2d 309, 314
  (1995) (we set aside trial court conclusions only if not reasonably
  supported by findings).

       Scheiber next contends that the shooting range constituted either an
  "accessory use" or a "private club" requiring a CUP under the zoning
  regulations.(FN1)  We disagree.  The zoning regulations define an "accessory
  use or building" as "[a] use or building  customarily incidental and
  subordinate to the principal use or building and located on the same lot." 
  Town and Village of Cabot  Zoning Regulations, art. I, § 1.8.  Each of the
  uses identified as requiring a CUP involves a very substantial alteration
  in land use, such as a sand and gravel operation, junkyard, and retail
  store. Inclusion of "accessory use" in this list suggests that the Town
  contemplated a "subordinate" use or building having a substantial impact on
  the property, such as a separate garage or other sizable and permanent
  auxiliary structure.  See Langle v. Kurkul, 146 Vt. 513, 515, 510 A.2d 1301, 1302 (1986) (when enumerated list in statute is followed by general
  term, general term must be construed to include only those terms which are
  similar in nature to enumerated terms).  Indeed, accessory uses have
  traditionally involved such various activities as home occupations, tennis
  courts, and airplane hangers.  See 2 E. Ziegler, Rathkopf's The Law of
  Zoning and Planning  § 23.08 (4th ed. 1991) (providing rulings on a variety
  of accessory uses); 2 E. C. Yokley, Zoning Law and Practice, § 8-4 at 8-24
  (4th ed. 1978) (providing rulings on what constitutes permissible accessory
  uses).(FN2)  The range at issue, consisting of an earthen berm and small
  platform, is easily distinguishable.

       Scheiber also argues that the Pikes' use of their property 
  constituted a "private club," thereby requiring a CUP.  The zoning
  regulations define private club as a "[b]uilding or use catering 
  exclusively to club members and their guests for recreational purposes, and
  not operated primarily for profit."  See Town and  Village of Cabot Zoning
  Regulations, art. I, § 1.8 (emphasis added). Scheiber relies on the court's
  findings that members of the APRA had  used the range, and that the range
  was used at APRA functions.  The court found that the APRA chapter had four
  annual picnics attended by approximately forty-five guests, and that the
  range has been the site of an APRA safety course on three occasions. 
  Further, the trial court found that due to the Pikes' involvement with the
  APRA, use of  the range had increased.  The court also determined, however,
  that ordinarily no shooting occurs at the meetings, and that the APRA's 
  use of the range had not increased to the point that the property had
  become a club facility.  Thus, the court concluded that the shooting range
  did not cater exclusively to club members, and, therefore, was not a
  private club.  The evidence supports these findings and conclusions.  See
  Vermont Agency of Natural Resources, 163 Vt. at 485, 660 A.2d  at 314.

       Scheiber next contends the range constituted "private outdoor 

 

  recreation" under the zoning regulations, thereby requiring a zoning 
  permit.(FN3)  The regulations define private outdoor recreation as a "yacht
  club, golf course, trap, skeet and archery range, swimming  pool[,] skating
  rink, riding stable, park, lake, and beach, tennis court, recreation
  stadium and skiing facility."  See Town and Village  of Cabot Zoning
  Regulations, § 1.8.  These uses suggest more fully developed facilities,
  with more extensive and ongoing use, than the shooting range at issue here. 
  The court found that the range is used primarily by the Pike family and
  their friends, and that they had not been so "generous in their permission"
  to others to warrant a permit. Thus, the court reasonably concluded that
  the shooting range was not a form of private outdoor recreation as
  described by the zoning regulations.

       Finally, Scheiber contends that if the range did not constitute one of
  the aforementioned uses requiring either a zoning permit or CUP, then it
  was not specifically permitted by the zoning regulations and therefore was
  expressly prohibited.  See Town and Village of Cabot Zoning Regulations, §
  1.3. The claim is unpersuasive.  Certain recreational uses of private
  property plainly fall outside the rudiments of zoning.  The primary purpose
  of zoning is to manage municipal and regional growth and development in an
  organized fashion, not to regulate the incidental recreational activities
  of private property owners.  See 24 V.S.A. § 4302(a) (purpose of Vermont
  Development Act to encourage appropriate municipal and regional
  development).  As one court observed:

    it could not be seriously contended that it is a
    violation of the zoning ordinance for one to erect a
    shuffle-b oard or a badminton court in his own yard for the
    use and enjoyment of himself, his family and friends, or
    that it is illegal for children to engage in their various
    games and amusements in the yards of their homes.

  City of New Orleans v. Estrade, 8 So. 2d 536, 537 (La. 1942).  Use of
  residential property includes more than the use of a house and grounds for
  food and shelter.  Rather, "[i]t also 

 

  includes its use for private religious, educational, cultural and
  recreational advantages for the family. Pursuit of a hobby is customarily a
  part of [r]ecreational activities."  Borough of Chatham  v. Donaldson, 174 A.2d 213, 216 (N.J. Super. Ct. App. Div. 1961) (citation omitted).

       Because Cabot is a rural community, the opportunity to pursue private
  recreational activities on one's land, such as sport or target  shooting,
  is greater than in more residential areas of the state. Nevertheless, Cabot
  is empowered to regulate recreational shooting activities through its
  zoning authority, and indeed has chosen to regulate trap and skeet shooting
  and archery ranges, while remaining silent about target shooting of the
  kind at issue here.   See Town and Village of Cabot Zoning Regulations, §§
  1.8(10), 4.3.  It is also empowered to establish performance standards,
  including noise abatements, for specific uses, but has not chosen to impose
  such standards on recreational target shooting.  See 24 V.S.A. § 4407(7).

       In characterizing the shooting range as a "private accessory 
  residential use," the trial court implicitly concluded that it fell 
  outside of the zoning regulations.  The court's use of the phrase "private
  accessory residential use" instead of the phrase "accessory  use" found in
  the zoning regulations, expressed the court's  understanding of the
  principle that certain recreational activities, such as target shooting of
  the kind in question, are de minimis uses of private property which are
  neither regulated nor contemplated by the zoning regulations.  See
  Mazziotti v. Allstate Ins. Co., 695 A.2d 1010, 1014 (Conn. 1997) (judgments
  are construed in same manner as other written instruments and determinative
  factor is intention of trial court "as gathered from all parts of the
  judgment").  The court's conclusion was sound in law, and adequately
  supported by the  record. Accordingly, its judgment must be upheld.

       Affirmed.


                       FOR THE COURT:


                       _______________________________________
                       Chief Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The following uses are allowed in the Pikes' district upon
  issuance of a conditional use permit: (1) sand and gravel operation, (2)
  junkyard, (3) motel, hotel, lodge, (4) dormitory use, (5) private club, (6)
  membership clubhouse, (7) retail store, (8) office building, (9)
  restaurant, (10) public utility substation, (11) automotive service station
  and garage, (12) drive-in stand, (13) trailer camp, (14) accessory use,
  (15) any other commercial or industrial use not specifically excluded, (16)
  temporary residence for the purpose of cutting or handling timber.  See
  Town and Village of Cabot Zoning Regulations, art. IV, § 4.3.


FN2.  Scheiber also notes that the court characterized the range as a
  "private accessory residential use."  As explained below, however, it does
  not appear that the court intended to characterize the range as an
  "accessory use" in the technical sense, but rather as a de minimus
  recreational use which did not require either a zoning permit or a CUP.

FN3.  Under the town's zoning regulations, "private outdoor recreation
  is included among the allowed uses in a low density
  residential/agricultural district.  Town and Village of Cabot Zoning
  Regulations, § 4.3.