In re Dunnett

In re Dunnett  (98-314); 172 Vt. 196; 776 A.2d 406

[Filed 4-May-2001]


       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. 98-314


In re George Dunnett	                         Supreme Court

                                                 On Appeal from
                                                 Environmental Court
 
                                                 September Term, 2000

Merideth Wright, J.

Matthew T. Birmingham, III of Fink & Birmingham, P.C., Ludlow, for Appellant.

George Dunnett, Pro Se, Ludlow, Appellee/Cross-Appellant.


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


       MORSE, J.   Permit applicant Kenneth Tofferi, owner and operator of
  Totem Pole Ski Shop,  Inc., appeals from the decision of the environmental
  court granting him a conditional use permit, but  denying him a variance in
  connection with renovations of a ski shop located on a parcel of land in 
  the Village of Ludlow.  Tofferi argues on appeal that the environmental
  court erred by conducting a  de novo hearing with regard to his
  applications instead of simply reviewing the decisions of the  Ludlow
  Development Review Board on the record and that the court improperly denied
  him a  variance.  Adjoining landowner, George Dunnett, cross-appeals and
  argues that the court erred by  granting Tofferi a conditional use permit. 
  We affirm.

 

       Tofferi owns and operates a ski shop on the corner of Pond Street and
  West Hill Road in the  Village of Ludlow.  Tofferi and Dunnett had
  previously operated the business as partners until  Tofferi bought out
  Dunnett's share sometime around 1982.  Dunnett now runs a separate ski shop
  on  property he owns that adjoins the parcel that is the subject of this
  appeal.  He also resides on the  adjoining property. 

       The property on which the shop is located is comprised of what was
  originally two separate  parcels of land designated 16 1/2 and 18 Pond 
  Street which had independent structures that Tofferi  later connected.  It
  is located in a residential-commercial district within the Village.  In
  December  1995, Tofferi applied to the Village for a conditional use permit
  in order to undertake additional  renovations to the property.  He
  subsequently sought a variance which also appeared to be necessary  for the
  proposed construction. 
  
       The renovations entailed improvements to and rebuilding of existing
  structures, as well as  demolishing a portion of the existing ski shop and
  erecting an addition in a new location on the  property.  Tofferi planned
  to undertake the changes in part to alleviate a traffic problem created by 
  the parking configuration on his lot.  According to testimony before the
  environmental court, the  Village had threatened Tofferi with litigation
  and planned to deny him a certificate of occupancy  unless he fixed his
  parking accommodations. 

       Tofferi's proposed changes resulted in a reduction in the square
  footage of the footprint of the  building and a reduction in the overall
  gross square footage of the structure.  Tofferi's lot, measuring  roughly
  .37 acre, does not meet the minimum lot size requirement for the district
  in which it is  located, however.  Furthermore, the proposed new structure
  did not meet the minimum setback 

 

  requirements contained within the Village's zoning ordinance.  Nor did the
  structures, either before  or after the changes, conform with the maximum
  lot coverage limit established by the Village.

       Tofferi applied for a conditional use permit for the changes to the
  existing structures and a  variance with respect to the new structure, both
  of which were granted by the Village after hearings  on the matter. 
  Dunnett, Tofferi's neighbor, then appealed the decisions to the
  environmental court.   After a de novo hearing, the court granted Tofferi a
  conditional use permit, excepting a dormer for  which the court determined
  that Tofferi needed to seek an additional variance, and concluded that he 
  was not entitled to a variance for the new structure based on a
  determination that he failed to meet  any of the five criteria necessary
  for its grant.  Tofferi now appeals to this Court, and Dunnett cross-
  appeals.

       Tofferi argues that two 1995 resolutions by the Village Board of
  Trustees creating the  Development Review Board and establishing that the
  Board be governed by the Municipal  Administrative Procedure Act entitle
  the Board to on-the-record review by the environmental court  pursuant to
  24 V.S.A. § 4471(a) (allowing for on-the-record appeals to the
  environmental court from  decisions of municipal boards).  Both Tofferi and
  the environmental court also refer to an additional  resolution or motion
  by the Board of Selectmen establishing that appeals of the Development
  Review  Board to the environmental court be on the record.  This motion or
  resolution does not appear  anywhere in the record, however.

       The environmental court determined that the Board's practice of simply
  keeping minutes of  hearings as opposed to audio or video recordings did
  not satisfy the requirement that proceedings "be  recorded" found in the
  Municipal Administrative Procedure Act, 24 V.S.A. § 1205(c), the 
  application of which is statutorily required for on-the-record review under
  § 4471, and the 

 

  requirement of an "adequate record" found in § 4471 itself.  We find no
  error in the court's  conclusion.

       As the court noted, if minutes were sufficient to qualify for
  on-the-record review, the new  amendments regarding the record, i.e., that
  proceedings "be recorded" and that an "adequate record"  be produced, would
  have been superfluous because municipal boards have consistently been
  required  to keep minutes under 24 V.S.A. § 4462 since its enactment in
  1967.  1967, No. 334 (Adj. Sess.),  § 1, amended by 1993, No. 232 (Adj.
  Sess.), § 14; see also Payea v. Howard Bank, 164 Vt. 106, 107,  663 A.2d 937, 938 (1995) (when interpreting a statute, we will not construe it in
  way that renders  language pure surplusage).  Additionally, because
  municipal boards are required to keep minutes, all  of their decisions
  would qualify for on-the-record review under Tofferi's argument if
  otherwise in  compliance with the Municipal Administrative Procedure Act. 
  This result is inconsistent with the  statutory scheme which contemplates
  that only certain proceedings would be reviewed on the record,  with the
  remainder proceeding in the environmental court de novo.  See 24 V.S.A. §
  4471(a)  (requiring that municipal legislative bodies define "what
  magnitude or nature of development  proposal" is the subject of
  on-the-record review); 24 V.S.A. § 4472(a) (providing that appeals from 
  municipal boards, "if not on the record, as allowed under section 4471 of
  this title" shall be de novo).

       Lastly, V.R.C.P. 74(d), applicable to on-the-record appeals via §
  4771(a), provides that the  record on appeal to the environmental court
  shall consist of, among other things, "a transcript of any  oral
  proceedings," which entails a verbatim record of the proceedings.  See
  Black's Law Dictionary  1497 (6th ed. 1990) (defining transcript as a
  "[w]ord-for-word typing of everything that was said 'on  the record' during
  trial").  Therefore, the environmental court's determination that the
  taking of  minutes did not satisfy the requirements of § 4771 was not
  error.  Because the hearings on Tofferi's 

 

  applications were not recorded by the Development Review Board, the court
  properly conducted a de  novo hearing on his requests for a conditional use
  permit and a variance.

       Tofferi also argues that the court improperly denied him a variance
  for the construction of the  new structure on the property.  The court
  determined that Tofferi had failed to meet any of the five  criteria
  necessary for the grant of a variance under the Village's zoning
  regulations.  Village of  Ludlow, Vt., Zoning and Flood Hazard Regulations,
  § 350.3 (1990) [hereinafter Regulations]; see  also 24 V.S.A. § 4468(a)
  (listing criteria necessary for grant of variance).  We have stated, "[a] 
  zoning variance must be based on a showing of conformance with each of the
  five statutory criteria  set forth in 24 V.S.A. § 4468(a)."  Blow v. Town
  of Berlin Zoning Adm'r, 151 Vt. 333, 335, 560 A.2d 378, 379 (1989)
  (emphasis added).  Therefore, if we find that the court did not err on any
  one  of the factors, we must affirm.  See Gadhue v. Marcotte, 141 Vt. 238,
  240, 446 A.2d 375, 376  (1982).  Furthermore, we will uphold the
  environmental court's construction of a town's zoning  ordinance unless
  clearly erroneous, arbitrary or capricious, In re Miserocchi, 170 Vt. 320,
  323, 749 A.2d 607, 610 (2000); see also In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998) (applying  standard to environmental court's
  construction of town zoning ordinance which mirrored statutory  language),
  and review determinations of fact for clear error, see In re Miller, 170
  Vt. 64, 69, 742 A.2d 1219, 1223 (1999).

       Because we cannot say that the court erred in its determination on
  each and every factor, we   are compelled to affirm the denial of the
  variance.  For instance, the court determined that a variance  was not
  necessary for reasonable use of the property, see Regulations, § 350.3(2)
  (requiring that  authorization of variance is necessary to enable
  reasonable use of the property); 24 V.S.A. §  4468(a)(2) (same), noting
  that the property has several current structures that may serve as a retail 

 

  space for the ski shop.  Cf. Gadhue, 141 Vt. at 240-41, 446 A.2d  at 377
  (reversing judgment granting  variance for addition of structure to
  property based on a failure to meet second criterion and noting  "the
  property was already developed and being used as both a residence and a
  retail business"); Sorg  v. North Hero Zoning Bd. of Adjustment, 135 Vt.
  423, 426, 378 A.2d 98, 101 (1977) (reversing  judgment granting a variance
  for an addition to an existing inn and noting "the property here is not 
  only useable as an inn, but has been and still is so used, since 1890"). 
  The court's determination that  Tofferi can currently make reasonable use
  of the property without the addition of the new structure,  and therefore
  failed to qualify for a variance under the second criterion, is neither
  clearly erroneous,  arbitrary nor capricious.  See Gadhue, 141 Vt. at 240,
  446 A.2d  at 376 (noting that "if ANY reasonable  use can be made of the
  property" in conformity with current zoning regulations, criterion two is
  not  satisfied) (emphasis added).

       Although, as the environmental court noted, the proposed
  reconfiguration of the buildings on  the property (undertaken at the behest
  of the Village) may in fact benefit the Village through  improved safety
  regarding traffic entering and exiting the property, as well as improved
  commercial  potential for the property, "[f]or relief by way of a
  variance[,] the statute governing its granting must  prevail, rather than a
  judicial finding indicating, at best, general desirability."  Sorg, 135 Vt.
  at 427-28, 378 A.2d  at 102.  We recognize that the director of planning
  services for the Village testified that  few properties in the
  commercial-residential district are in compliance with the town ordinances
  and  that the commercial properties located there are generally incapable
  of developing further without  variances.  He characterized it as a
  "traditional Vermont village" with very many small, irregular lots.  Under
  the zoning ordinance, however, this area has been slated to bear any
  further commercial  development in the Village, it being the main
  commercial district.  That being said, it appears that 

 

  the Village's zoning regulations for the district at issue may be at odds
  with the goal of focusing  development there.  The solution, however,
  should not be the piecemeal and/or wholesale grant of  variances, but
  rather reconsideration of the regulations themselves.  As the environmental
  court  appropriately noted, "[t]he Village cannot extend the variance
  provisions beyond their scope to  compensate for deficiencies in the
  existing zoning regulations." 

       Dunnett raises four issues in his cross-appeal, essentially arguing
  that Tofferi should not have  been granted a conditional use permit for the
  renovations to the existing structures on the property.   Dunnett first
  concedes that Tofferi's renovations meet the general standards set forth
  for conditional  use approval in the Village of Ludlow's zoning
  regulations, see Regulations § 360, but then argues  that the changes do
  not conform to the by-laws (one of the general standards under section 360) 
  because the number of parking spaces is inadequate for the gross square
  footage of the structures on  the property (excepting 2000 square feet for
  an apartment on the property which possessed separate  parking).  We
  conclude, however, that the court's interpretation of the Village's parking
  requirement  found in section 630.1(f) and its concomitant conclusion that
  the parking arrangement conformed to  this by-law were not in error.

       Section 630.1(f) requires"one parking space for every two hundred
  (200) square feet of floor  area" with regard to commercial buildings.  The
  court interpreted "floor area" to mean retail floor  area, which was
  consistent with other provisions regarding parking requirements (e.g.,
  looking at  office floor space in office buildings and looking at seating
  area in restaurants).  Additionally, the  director of planning services for
  the Village testified that the Development Review Board used sales  area in
  its analysis.  Cf. In re Kisiel, 11 Vt. L. W. 401, 404 (2000) (urging the
  Environmental Board  to give deference to a town's own interpretation of
  its town plan when applying Act 250).  The 

 

  court's interpretation, therefore, appears to be the correct one.  Using
  retail floor space, the 21 spaces  allocated for the retail use of the
  building were adequate.  Accordingly, the court did not err when it 
  concluded that the renovations were consistent with the Village's by-laws
  and thus met the general  standards under section 360.

       Dunnett also argues that approval should nevertheless have been denied
  based on the fact that  the existing structures do not meet the setback
  requirements, that they violate the maximum lot  coverage limit for the
  district in which the property is located, and that the property does not
  meet the  minimum lot size requirement for non-residential use in the
  district.  It is true that under the Village  zoning regulations, section
  360, a structure must also meet the specific standards for the zoning 
  district in which it is located in order to qualify for a conditional use
  permit.  See also 24 V.S.A. §  4407(2) (allowing municipalities to adopt
  specific standards in addition to the mandatory general  standards
  regarding conditional uses); Blundon v. Town of Stamford, 154 Vt. 227,
  231-32, 576 A.2d 437, 440 (1990) (reinstating zoning board of adjustment's
  denial of a conditional use permit based on  applicant's failure to meet
  specific standard for district in which proposed development was to be 
  located).  The structures for which a conditional use permit was sought in
  this case, however, were  preexisting, nonconforming structures with regard
  to these regulations.  Under Dunnett's argument,  no preexisting,
  nonconforming structure could ever qualify for a conditional use permit,
  for by its  very nature it would never meet the specific regulations for
  the district in which it is located.   Therefore, it appears the
  environmental court's approach, applying the portion of the zoning 
  regulations specifically governing nonconforming structures, was the proper
  one.

 

       Under this approach, changes in a preexisting, nonconforming structure
  would render the  structure ineligible for a conditional use permit only if
  the changes resulted in an increase in the  degree of nonconformance.  See
  Regulations, § 370(5) (allowing for reconstruction, alteration and 
  enlargement of nonconforming structures as long as "such enlarged portion
  conforms to the building  requirements of these Regulations"); id. § 370.1
  (allowing maintenance and repair of noncomplying  structures "provided such
  action does not increase the degree of noncompliance").  The court 
  specifically determined that the renovations, including the increase in the
  height of the roof line of  the portion of the building once used as a
  bakery, did not constitute an impermissible increase in the  degree of
  nonconformance.  See also id. § 530 (establishing thirty-five feet or three
  stories,  whichever is less, as the maximum height for buildings located in
  the residential-commercial  district).  Thus, the specific standards were
  met as required by the zoning ordinance.  Accordingly,  the court did not
  err by granting Tofferi the conditional use permit.(FN1)

       Dunnett also argues that the court should have denied Tofferi a
  conditional use permit based  on the fact that the renovations increased
  the overall size of the portion of the building referred to as  the old
  bakery.  He notes that the roof line was raised and the volume of the
  building thereby 

 

  increased.  As noted above, however, the Village's zoning ordinance permits
  reconstruction and  enlargement of preexisting, nonconforming structures as
  long as the enlarged portion conforms to the  building requirements for the
  district.  Id. at § 370(5).  Also as noted above, the court determined that 
  the roof line was a permissible enlargement, still within the limit of the
  lesser of thirty-five feet or  three stories, a finding supported by the
  record.  Furthermore, there is no limitation on the volume of  structures
  in the residential-commercial district.  And notably, the overall square
  footage, the overall  footprint and the overall percentage of lot coverage
  were all reduced by the renovations to the  preexisting structures on the
  property, all of which are connected to one another.  Therefore, we  cannot
  say the court erred by failing to deny the conditional use permit based on
  the increased height  of the portion of the structure known as the old
  bakery building. 

       Finally, Dunnett argues that the court should not have issued a
  conditional use permit for the  renovated structures because Tofferi failed
  to establish that he ever received a certificate of  occupancy for the
  portion of the connected structures known as the Old Lampert House, located
  on  the 18 Pond Street lot, following its connection to 16 1/2 Pond Street
  in 1989.  Dunnett argues that the  environmental court's finding that the
  certificate of occupancy issued by the Village in 1995 for 16 1/2 - 18 Pond
  Street permitted Tofferi to use the Old Lampert House portion of the
  connected structures  for retail use is clearly erroneous.  We will only
  disturb a finding of fact, however, if there is no  credible evidence in
  the record to support it.  Rubin v. Sterling Enters., 164 Vt. 582, 588, 674 A.2d 782, 786 (1996).  Laurence Melen, the Village's director of planning
  services, as well as its  administrative officer, testified that the ski
  shop possessed a certificate of occupancy and was not 

 

  in violation of any ordinance at the time of the hearing before the court. 
  Therefore, we will not  disturb the court's determination.

       Affirmed.


FOR THE COURT:

_______________________________________
Associate Justice

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                                  Footnotes


FN1.  Although the court granted Tofferi a conditional use permit for the
  renovated structures,  it excepted from its grant of the permit the dormer
  added to the raised portion of the old bakery  roof, determining a variance
  was necessary for this change. Although on the last page of his brief, 
  Tofferi states that the conditional use permit as granted by the Village of
  Ludlow Development  Review Board should have been "confirmed in its
  entirety," he fails to address the environmental  court's exception of the
  dormer from its grant of the conditional use permit anywhere else in his 
  brief.  In fact, he states on the second-to-last page of his brief, "the
  Environmental Court was  correct in granting a Conditional Use Permit." 
  (Emphasis added.)  We have consistently stated  that we will not address
  issues on appeal that are not briefed, e.g., Mouat v. Wolfe, 150 Vt. 637, 
  640, 556 A.2d 99, 101 (1989); Bishop v. Town of Barre, 140 Vt. 564, 579,
  442 A.2d 50, 57  (1982), and, therefore, will not address the portion of
  the environmental court's decision  excepting the dormer from its grant of
  the conditional use permit and concluding that Tofferi  must apply for a
  variance for that portion of the structure.