Appeal of Gregoire

Appeal of Gregoire (98-508); 170 Vt. 556; 742 A.2d 1232

[Filed 21-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-508

                            SEPTEMBER TERM, 1999


Appeal of Gary and Suzanne Gregoire	 }	APPEALED FROM:
	                                 }
	                                 }
     	                                 }	Environmental Court
	                                 }	
	                                 }
	                                 }	DOCKET NO. 47-3-98 Vtec


             In the above-entitled cause, the Clerk will enter:


       The Town of Colchester appeals a decision of the Environmental Court
  granting summary  judgment to camp owners Gary and Suzanne Gregoire and
  denying summary judgment to the  Town.  The court held that the camps owned
  by the Gregoires were not subject to Colchester  Zoning Regulations that
  prohibit the resumption of nonconforming uses after abandonment.  We 
  disagree and remand for a determination of whether the camps'
  nonconforming-use status has been  abandoned within the meaning of the
  applicable zoning requirements.


       This is the second time this Court has had occasion to review the
  application of Colchester  Zoning Regulations to the lot and its camps.  We
  previously observed that the lot in question did  not conform to zoning
  requirements because it contained multiple structures, but upheld the 
  decision of the Chittenden Superior Court that the former landowners
  (Beverly and Debra Lowe)  did not need a zoning or subdivision permit to
  convert the six single-family rental camps on the lot  to condominium
  ownership.  See In re Lowe, 164 Vt. 167, 666 A.2d 1178 (1995).


       The camps at issue - known as "Camp Mike" and "The Birches"
  respectively - are located  on a single lot approximately 40,000 square
  feet in size.  The structures are two of six camp  buildings constructed on
  the same lot several decades ago.  The camps were converted to 
  condominiums in 1996, and in 1997 the Gregoires purchased Camp Mike and The
  Birches from the  Lowes.  Following their purchase, the zoning
  administrator informed the Gregoires by letter that the  two camps had lost
  their pre-existing, nonconforming status through abandonment.  The
  Colchester  Zoning Board of Adjustment (ZBA) upheld the zoning
  administrator's determination, and the  Gregoires appealed to the
  Environmental Court.  The Environmental Court reversed the ZBA  decision,
  concluding that it would be "manifestly unfair" to construe the new
  provisions of the 1997  Colchester Zoning Regulation to make them
  applicable to abandonments that occurred prior  to the effective date of
  the 1997 regulations.  

 

       The Town appeals, contending that the 1997 zoning regulations allow
  only the continuation  of nonconforming uses that lawfully existed under
  previous applicable ordinances.  Camp Mike and  The Birches cannot,
  according to the Town, be considered lawfully existing nonconforming uses
  as  of 1997, because, asserts the Town, the nonconforming use status was
  lost through abandonment of  the camps prior to the adoption of the 1997
  zoning ordinance. (FN1)


       We begin by noting that the parties submitted to the Environmental
  Court a stipulated  statement of material facts. (FN2)  The parties agreed
  that (1) the camps at issue were constructed  and occupied prior to the
  enactment of any Colchester Zoning Regulations and (2) the camps are 
  located in the R-2 district of the Colchester Zoning Ordinance, within
  which seasonal dwelling  units are permitted uses.  The parties differ
  sharply, however, on what constitutes "use" for  purposes of deciding the
  applicability of the Colchester Zoning Regulations to the stipulated facts.


       The Town contends that the "use" at issue - and the use that it claims
  has been abandoned  with respect to Camp Mike and The Birches - is the use
  of the lot as a situs for multiple detached  single family dwellings. 
  Since 1976, the Colchester Zoning Regulations have contained a  provision
  that restricts the use of a single lot to a single building (and its
  accessories), except as a  subdivision:

     Every building and its accessories hereafter erected or structurally 
     altered, or every use, shall be located on a lot, and in no case shall 
     there be more than one such building or use on one lot, except as a 
     subdivision.

 

  Colchester Zoning Regulations § 11.14 (1976) (currently § 1808).  The
  contemporary Colchester  Zoning Regulations, effective September 9, 1997,
  allow "any nonconforming use which lawfully  existed at the time of the
  passage of this or any prior ordinance . . . may be continued."  Colchester 
  Zoning Regulations § 1801 (1997).  While conceding that the six-camp lot
  was a preexisting  nonconforming use as a lot containing multiple detached
  single-family dwellings and as such could  continue indefinitely in
  "grandfather status," the Town maintains that a part of the grandfathered 
  use has been lost through the abandonment of Camp Mike and The Birches.
  (FN3)  Thus, asserts  the Town, the attempt by the Gregoires to resurrect
  an abandoned use must fail because the  Colchester Zoning Regulations allow
  only the continuation of nonconforming uses that lawfully  existed at the
  time of the passage of the 1997 regulations.

       The Gregoires reject the rationale by which the Town attempts to bring
  them within the  ambit of the "non-complying use" regulation.  The camp
  owners argue that the "use" in question is  only the use to which the camps
  are put.  The Gregoires note that the camps have always been used  as
  seasonal dwelling units; that the Town admits that seasonal dwelling has
  always been an  appropriate use for the camps under past and current
  Colchester Zoning Regulations; and it  therefore follows as a matter of
  logic and law that the attempt to apply the "non-conforming use" 
  regulations (of which abandonment are a part) must fail because the camps'
  "use" as seasonal  dwelling units has never been a nonconforming use.  The
  Environmental Court agreed with the  Gregoires that the "use" in question
  was a permitted, seasonal residential use, not, as the Town  contends, use
  of a lot for multiple single family dwellings.

       We are bound by an Environmental Court construction of a zoning
  ordinance unless it is  clearly erroneous, arbitrary or capricious.  See
  Houston v. Town of Waitsfield, 162 Vt. 476, 479,  648 A.2d 864, 865 (1994). 
  The prime purpose behind zoning is to bring about the orderly physical 
  development of a community by confining particular uses to defined areas. 
  See Vermont Brick &  Block, Inc. v. Village of Essex Junction, 135 Vt. 481,
  483, 380 A.2d 67, 69 (1977).  A goal of  zoning is to gradually eliminate
  nonconforming uses because they are inconsistent with the purpose  of
  developing use-consistent areas in communities. See In re McCormick
  Management Co., 149 Vt.  585, 589, 547 A.2d 1319, 1322 (1988).    

       We believe the Environmental court's construction of the Colchester
  Zoning Ordinance was  error.  In determining whether the "use" in question
  was a nonconforming use at the time of the  effective date of the 1997
  Colchester Zoning Regulations, the Environmental Court limited its 
  considerations to the use of the buildings as seasonal dwellings.  The Town
  correctly asserts that  the court's narrow interpretation of "use" failed
  to consider whether the Town's regulation of the use  of land brought the
  Gregoires' camps within the ambit of restrictions relating to "noncomplying 
  use."  Pursuant to 24 V.S.A. § 4408(1), "nonconforming use" means "a use of
  land or a structure 

 

  which does not comply with all zoning regulations, where such use conformed
  to all applicable  laws, ordinances and regulations prior to the enactment
  of such regulations."  (emphasis added).

       We interpret a zoning ordinance under familiar rules of statutory and
  ordinance construction.  Words in statutes and ordinances should be given
  their plain meaning.  See In re Stowe Club  Highlands, 164 Vt. 272, 279,
  668 A.2d 1271, 1276 (1995) (when interpreting zoning ordinances,  court
  construes words according to their plain and ordinary meaning, giving
  effect to whole and  every part of ordinance).  We adopt a construction
  that implements the legislative purpose.  See id.  at 281, 668 A.2d  at
  1277.

       Here, there was a failure to construe the term "nonconforming use" to
  give effect to the  whole ordinance.  The Environmental Court characterized
  the Town's effort to regulate the  Gregoires' property as an issue
  implicating noncomplying structures.  But as the Town emphasized,  the
  issue involved more than the allowable restoration of noncomplying
  structures. (FN4)  The  question is whether - assuming proof of abandonment
  - the Colchester Zoning Regulations were  intended to prevent the addition
  of two more single-family dwellings on a lot already being used for  four
  attached single-family dwellings.  The term "nonconforming uses" is defined
  in the 1997  Colchester Zoning Regulations as "those uses which do not
  conform with the use regulations set  forth in this ordinance."  Colchester
  Zoning Regulations § 1801 (1997).  The plain and ordinary  meaning of the
  definition applied to the matter before us compels the conclusion that the
  camps in  question are nonconforming uses.

       The public interest in the regulation and gradual elimination of
  nonconforming uses is strong,  see Hinsdale v. Village of Essex Junction,
  153 Vt. 618, 626, 572 A.2d 925, 930 (1990), and zoning  provisions allowing
  nonconforming uses should be strictly construed. See Hartley v. City of 
  Colorado Springs, 764 P.2d 1216, 1224 (Colo. 1988).  By their very nature,
  nonconforming uses,  defined as " 'a use of land or a structure which does
  not comply with all zoning regulations' where  such use was proper prior to
  the enactment of the regulations," Vermont Brick & Block, 135 Vt. at  482,
  380 A.2d  at 69 (quoting 24 V.S.A. § 4408(a)(1)), are inconsistent with that
  purpose.  Such  uses are recognized and permitted to continue, simply by
  virtue of their existence prior to the  enactment of the ordinance.  See
  DeWitt v. Brattleboro Zoning Bd. of Adjustment,  128 Vt. 313,  319, 262 A.2d 472, 476 (1970).  However, their extension is carefully limited, since
  the ultimate  goal of zoning is to gradually eliminate them.  See Brassard
  Bros. v. Barre Town Zoning Bd. of  Adjustment, 128 Vt.

  

  415, 419, 264 A.2d 814, 816 (1970).   Indeed, the 1997 Colchester Zoning
  Regulations echo this,  stating that "[i]t is considered desirable and in
  the best interest of the Town to encourage  nonconforming uses to change to
  conforming uses."  Colchester Zoning Regulations  § 1801  (1997).

       The Gregoires assert that notwithstanding a determination that the
  noncomplying use  provision of the Colchester Zoning Regulations applies to
  Camp Mike and The Birches, there can  be no application of the abandonment
  provision because the Town concedes that the lot still retains 
  grandfathered noncomplying use status by virtue of the continuing use of
  the lot by the other four  camps.  In the circumstances of this case, we
  conclude that it is possible for a single lot containing  independent
  multiple nonconforming uses of land to be subject to an abandonment claim. 
  In short,  it is conceivable that Camp Mike and The Birches could have lost
  their nonconforming-use status  through abandonment even while the other
  four camps retained their status because they were  continually used in a
  nonconforming manner.

       Although the facts of this case are uncommon, we observe that a single
  location can be the  source of multiple nonconforming uses.  See In re
  Appeal of Newton Enterprises, 167 Vt. 459, 460,  708 A.2d 914, 915 (1998)
  (service station used as gas station, convenience store, and grill); In re 
  Porter Med. Assoc. Use Change Permit, 139 Vt. 132, 133, 423 A.2d 491, 491
  (1980) (office  building used for physicians' office required use change
  permit where owner sought to use part of  building for pharmacy); Cape
  Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 431 N.E.2d 213, 215-17 (Mass. 1982) (hotel used as both hotel and entertainment
  complex).  The  appropriate balance between the view that uncertainties in
  zoning ordinances must be construed in  favor of the property owner, see In
  re Vitale, 151 Vt. 580, 584, 563 A.2d 613, 616 (1989), and the  rationale
  that the public interest is advanced by the gradual elimination of
  nonconforming uses, see  Hinsdale, 153 Vt. at 626, 572 A.2d  at 930, is best
  served by an approach that neither forbids a  municipality from asserting
  that fewer than all noncomplying uses have been abandoned, nor  compels a
  property owner to surrender all nonconforming use status where fewer than
  all uses have  been abandoned.  The law nevertheless generally views
  nonconforming uses as detrimental to a  zoning scheme and overriding public
  policy.  See Toys "R" Us v. Silva, 676 N.E.2d 862, 865  (N.Y. 1996).  We
  conclude that under the facts of this case, the Town has the authority to
  apply its  zoning regulations, including the provision relating to
  nonconforming uses and abandonment, to  Camp Mike and The Birches.

       Finally, the Gregoires contend that even if an abandonment inquiry is
  appropriate, it cannot  be shown that the Gregoires ever abandoned the
  nonconforming use status of Camp Mike and The  Birches.  While that may be
  so, as subsequent purchasers of the camps, the Gregoires can be bound  by
  the abandonment of a nonconforming use status by the previous owners.  See
  Town of Brighton,  148 Vt.  at 266, 532 A.2d  at 1293 (purchaser of gas
  station was held to abandonment of  nonconforming use status of previous
  owners).  Whether the Town can factually demonstrate that  the previous
  owners of Camp Mike and The Birches abandoned the nonconforming use status
  of  the camps has yet to be decided by the environmental court, and we
  remand for that purpose.

 
       	
       Reversed and remanded.
	



	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  The Town contends that abandonment occurred "in or about 1991."  The
  Colchester Zoning  Regulations on Abandonment then in effect read:

     A non-conforming use of a building or premises which has been abandoned 
     shall not, thereafter, be returned to such non-conforming use.  A non-
     conforming use shall be considered abandoned when:
	
	(a).  The intent of the owner to discontinue the use is apparent.
	(b).  The characteristic equipment and furnishings of the non-
     conforming use have been removed from the premises and have not been 
     replaced by similar equipment within six (6) months.
	(c).  It has been replaced by a conforming use.
	(d).  It has been changed to another use under proper permit.

  Colchester Zoning Regulations § 1801(7) (1982).  

FN2.  Although both parties filed motions for summary judgment, the Town
  acknowledges in its  reply brief filed with this Court that material facts
  relating to its claim of abandonment were neither  stipulated to by the
  parties nor found by the Environmental Court.
  
FN3.  The Town concedes that the four other camps - not a subject of this
  litigation - retain their  preexisting nonconforming use status because
  there has been no abandonment of use as to those  camps under either the
  1982 or 1997 Colchester Zoning Regulations.
  
FN4.  Both parties agree that Camp Mike and The Birches are noncomplying
  structures because they  do not comply with "dimensional requirements" of
  the regulations, including setbacks from the  road and lake.  There is no
  question here that the camps' noncomplying structure status has not  been
  abandoned under either the 1982 or 1997 Colchester Zoning Regulations, but
  that fact has no  effect on the nonconforming use question at issue here. 
  See Town of Brighton v. Griffin, 148 Vt.  264, 270, 532 A.2d 1292, 1295
  (1987) ("Although a preexisting noncomplying structure may  remain in
  place, once a nonconforming use of that structure is abandoned or
  discontinued, state law  contemplates that a municipality may prohibit
  resumption of such use.").