In re Windjammer Hospitality

In re Windjammer Hospitality (2000-446); 172 Vt. 560; 772 A.2d 536

[Filed 11-Apr-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 00-446

                              MARCH TERM, 2001


In re Appeal of Windjammer Hospitality	}	APPEALED FROM:
                                        }
                                        }
     	                                }	Environmental Court
                                        }	
                                        }
                                        }	DOCKET NO. 137-8-99 Vtec

                                                Trial Judge: Meredith Wright

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


       Appellant Windjammer Hospitality Group (Windjammer) appeals from a
  decision of the  Environmental Court which held that split lots must
  conform to the minimum lot frontage  requirements required for each
  district in which they are located.  On appeal, Windjammer contends  that a
  split lot, one that lies in more than one zoning district, conforms to the
  applicable zoning  bylaws as long as it maintains minimum lot frontage on
  one street.  We affirm.

       This case arises out of the City of South Burlington's denial of
  Windjammer's application to  subdivide a 54-acre parcel which it currently
  leases, with a purchase option, from owner Evelyn  Lamplough.  Windjammer
  owns and operates Windjammer Best Western Inn and Conference  Center, and
  Windjammer Restaurant, on the leased property.  Approximately one acre of
  the leased  property may be subject to a neighboring property owner's right
  of first refusal, which has prevented  Windjammer from exercising its
  purchase option.

       To address this concern, Windjammer and Ms. Lamplough submitted an
  application to the  South Burlington Planning Commission seeking to
  subdivide the leased property.  Proposed lot 1,  consisting of a 1.47 acre
  lot, includes that portion of the leased property which is subject to the
  right  of first refusal.  Proposed lot 2, a 52.876 acre lot, encompasses
  all of the buildings and improvements  associated with Windjammer's
  business, as well as vacant land.  As proposed, the subdivision would 
  enable Windjammer to purchase all of proposed lot 2 without triggering the
  right of first refusal.   Windjammer would continue to lease lot 1. 

       The leased property is located in two zoning districts: the southern
  half of the parcel, including  two segments with frontage on Williston Road
  and all of the land occupied by the motel, conference  center and
  restaurant buildings, is located in the commercial zoning district (C-1);
  the northern,  unimproved portion of the parcel, with frontage on Patchen
  Road, is located in the residential zoning 

 

  district (R-4).  Both Williston and Patchen Roads are classified as
  "arterial or collector" streets under  the City's zoning regulations for
  the purpose of measuring minimum lot frontage.  The minimum lot  frontage
  on "arterial or collector" streets is 200 feet in the C-1 district, and 100
  or 170 feet in the R-4  district, depending on use.  

       Under the proposed subdivision, lot 1 would fall entirely in the C-1
  district, and would include  a 234.57-foot segment of Williston Road
  frontage; lot 2 would fall in both districts, and include the  entire
  261.31-foot Patchen Road frontage, but only a 50-foot segment of Williston
  Road frontage.   The minimum frontage required for lot 2 in the C-1 zoning
  district on Williston Road, however, is  200 feet.  Additionally,
  "[h]otels, motels and restaurants are neither permitted nor conditional
  uses in  the R-4 zoning district." 

       The City of South Burlington Planning Commission denied the
  subdivision application on the  ground that proposed lot 2 did not have
  sufficient frontage on Williston Road.  Windjammer  appealed the decision
  to the environmental court, claiming that proposed lot 2 met the minimum 
  frontage lot requirement because it had sufficient frontage on Patchen
  Road, and did not need to  meet the minimum frontage requirements on
  Williston Road as well.  The environmental court  granted the City's motion
  for summary judgment.

       In its decision, the environmental court first noted that, "if the
  proposed Lot 2 . . . were solely  in the C-1 district, or were split
  between districts allowing the use, as long as the frontage on one  street
  is adequate, the lack of sufficient frontage on the other street would be
  no bar to approval of  the subdivision."(Emphasis added).  However, the
  court observed that as a "split lot,"§ 29.007 of the  zoning bylaws was
  controlling.  Section 29.007 states:

    Where a district boundary line divides a lot which was in a single 
    ownership at the time of passage of these regulations, the Board
    of  Adjustment may permit, as a conditional use, the extension of
    the  regulations for either portion of the lot not to exceed fifty
    (50) feet beyond  the district line into the remaining portion of
    the lot.

  City of South Burlington, Vt. Zoning Regulations art. XXIX, §29.007.  The
  court held that "the  necessary corollary of that provision is that, other
  than in such extension area, uses on a split lot must  comply with the
  district requirements for the district they are in."

       The environmental court also based its decision on § 25.115 of the
  bylaws, which requires that  "[n]o lot shall be so reduced in size that the
  lot size, frontage, coverage, setbacks, or other  requirements of these
  regulations shall be smaller than herein prescribed for each district." 
  (Emphasis added).  The court found that the proposed subdivision would
  result in a violation of  §  25.115 as "[i]t would reduce the lot size so
  that the frontage required for the commercial use in the  C-1 district
  would be smaller than that prescribed for the C-1 district." 


 

       On appeal, Windjammer contends that the environmental court erred as a
  matter of law in  requiring the proposed subdivision to fulfill minimum lot
  frontage requirements on both Williston  and Patchen Roads.  Specifically,
  Windjammer claims that the environmental court "employed an  overly narrow
  reading" of § 29.007, and asserts that but for the split-lot nature of
  proposed lot 2, it  would satisfy the City's zoning bylaw frontage
  requirements.

       We use "the same standard as the trial court," and will affirm a
  summary judgment "if there are  no genuine issues of material fact and the
  moving party is entitled to judgment as a matter of law."   Granger v. Town
  of Woodford, 167 Vt. 610, 611, 708 A.2d 1345, 1346 (1998) (mem.); see also 
  V.R.C.P. 56(c).  We will defer to the environmental court's interpretation
  of a zoning ordinance  unless the construction is clearly erroneous,
  arbitrary or capricious.  In re Weeks, 167 Vt. 551, 554,  712 A.2d 907, 909
  (1998).

       We agree with the trial court's interpretation of § 29.007.  Appellant
  correctly notes that the  environmental court construed § 29.007 to mean
  that uses on a split lot must comply with the zoning  requirements for the
  district in which each portion of the split lot is located, but claims this
  is an  "overly narrow reading" of the provision.  In fact, the
  environmental court's interpretation is  consistent with this Court's prior
  determination that split lot property which lies in two districts with 
  differing use requirements must comply with the use provision in each. See
  McLaughry v. Town of  Norwich, 140 Vt. 49, 54-55, 433 A.2d 319, 322 (1981). 
  Thus, in McLaughry, where appellant's  property was located in both a
  residential and a commercial zoning district, a denial of appellant's 
  application to develop the property commercially was upheld where there was
  "no evidence to  indicate that the property could not be used for two
  different purposes; that is, that part of it which  lies within the
  business district could be used for business purposes, and that part of the
  property  lying within the residential district could be used for
  residential purposes." Id. 

       Appellants draw our attention to decisions in other jurisdictions
  which have allowed property  owners to aggregate frontage from both zones
  in a split lot to meet the minimum frontage and lot  size requirements for
  the zone in which improvements have been proposed.  See, e.g., Tofias v. 
  Butler, 523 N.E.2d 796, 799 (Mass.App.Ct. 1988) (landowner permitted to
  build structure on  commercial portion of split lot using residential
  portion for purpose of calculating lot coverage  requirements under zoning
  ordinance); Moore v. Town of Swampscott, 530 N.E.2d 808, 809  (Mass.App.Ct.
  1988) (landowner permitted to use more restrictive zone of split lot to
  satisfy bylaw  space and frontage requirements of less restrictive zone for
  purpose of building single family  residence on combined parcel). In both
  of those cases, landowners were permitted to make a passive  use of the
  more restricted zone to meet zoning requirements for active improvements
  planned for the  less restricted portion of the lot.  However, those cases
  are distinguishable from the instant case in  that the landowners in both
  Tofias and Moore were attempting to aggregate parcels for a single, 
  unified use of the land. See Tobias, 523 N.E.2d  at 799 (noting underlying
  "desire to permit land  owners to enjoy the use of their entire properties
  as single units"); Moore, 530 N.E.2d  at 809  (permitting frontage in more
  restrictive district to meet bylaw requirements for a building in the less 
  restricted district where neither lot alone is sufficient to meet zoning
  requirements in which they are  located); see also Forest City, Inc. v.
  Payson, 239 A.2d 167, 169 (Me. 1968) (also noting desire to 

 

  permit use of split lot properties as single units).  In contrast,
  Windjammer seeks to subdivide a split  lot, which is currently in 
  compliance with the City's bylaws, rendering one of the resulting lots 
  noncompliant.  

       Furthermore, a more recent decision by the Appeals Court of
  Massachusetts has held that "the  use of land in another zoning district .
  . . solely to meet dimensional requirements is considered a  permissible
  abstract or passive use where . . . it appears both zoning districts permit
  the proposed  active use."  Boulter Bros. Const. Co. v. Zoning Bd. of
  Appeals of Norfolk, 697 N.E.2d 997, 999  (Mass.App.Ct. 1998) (emphasis
  added).  Consistent with our holding in McLaughry, Boulter requires  that
  the use within each zone remain in conformity with that district's use
  requirement.

       In response to the environmental court's holding under § 25.115,
  appellant contends that that  section constitutes a general provision of
  the zoning bylaws, and "does not impose any special  requirement upon split
  lots."  Appellant therefore claims that § 29.007, because it applies
  specifically  to split lots, is controlling.  See Rutland v. Keiffer, 124
  Vt. 357, 362, 205 A.2d 400, 403 (1964)  (special provisions control over
  general provisions in construing zoning ordinances).  Appellant is  correct
  in asserting that § 25.115 does not impose specific requirements on split
  lots; on the contrary,  it applies to all lots.  Section 25.115 prohibits
  the reduction of any lot area that would result in a  reduction in the
  minimum dimensional requirements "prescribed for each district," and thus
  provides  an additional basis supporting the denial of appellants'
  subdivision application.


       Affirmed.



                                   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