In re Lashins

In re Lashins (2001-134); 174 Vt. 467; 807 A.2d 420

[Filed 05-Jul-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-134

                               MAY TERM, 2002


  In re Appeal of Edward Lashins       }	APPEALED FROM:
                                       }
                                       }
                                       }	Environmental Court
                                       }	
                                       }
                                       }	DOCKET NOS. 94-6-97/231-12-98Vte

                                                Trial Judge:  Meridith Wright

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


       Edward Lashins appeals the environmental court order authorizing
  Timothy Gore to re-open a children's summer camp as a pre-existing and
  conditional use under the Town of Wilmington's zoning ordinance.  Appellant
  maintains that Gore's proposed summer camp is actually a nonconforming use
  subject to a discontinuance provision included in the ordinance that
  prohibits resurrecting nonconforming uses once those uses have changed to
  permitted uses. We agree with appellant, and therefore, reverse the
  environmental court order and remand the matter to the Wilmington Zoning
  Board of Adjustment (ZBA) for complete review of Gore's application under
  the Wilmington zoning ordinance's conditional use criteria.

       In 1967 Gore's grandparents owned and operated a children's summer
  camp, known as Camp Najerog, on more than 300 acres of land they owned on
  Lake Raponda in Wilmington, Vermont.  A year later the summer camp closed
  down.  Except for a six acre piece of property acquired by Gore's parents,
  most of the land was conveyed to a real estate development corporation that
  subdivided and sold parcels of the land for vacation and residential uses. 
  The development corporation later defaulted on its mortgage, held by the
  estate of Gore's deceased grandmother, and after foreclosure proceedings,
  Gore eventually received ninety-three acres of land.  On behalf of himself
  and his parents, Gore applied for a conditional use permit before the ZBA
  to open the "Najerog Environmental Learning Center" on his ninety-three
  acre parcel and his parent's six acre parcel.  
   
       Appellant owns property that was once a part of Camp Najerog's 300
  acres and now borders a thirty acre portion of Gore's property on Lake
  Raponda.  This portion of Lake Raponda, while not a wilderness area, is a
  heavily wooded lakeshore enjoying a high degree of seclusion and privacy. 
  This appeal arises out of appellant's concern that the proposed summer camp
  will change the wild character of the area by overcrowding the lake and
  shoreline, generating excessive noise and water pollution, and posing a
  threat of forest fires from campfires, and vandalism and trespass by
  teenage 

 

  campers.  Appellant, therefore, seeks to have Gore's entire proposed
  development reviewed under the Town of Wilmington's zoning ordinance
  section 7 conditional use criteria.  

       In 1968, the last year of Camp Najerog's operation, the Town of
  Wilmington adopted a zoning ordinance which continues in effect, and
  unchanged, to this day.  Section 3(a) of the ordinance is at issue in this
  appeal.  It reads, in relevant part: 

      This ordinance shall not apply to existing buildings and
    structures nor to the existing use of any building or structure or
    of land to the extent to which they were used at the time of the
    adoption of this ordinance.  Once a non-conforming use is changed
    to a use permitted in the district where it is located, then it
    may not be changed back to a non-conforming use.  However, nothing
    herein contained shall prevent the substantial restoration within
    two years and the continued use of a restored non-conforming
    building or structure damaged by fire or other casualty.

       The parties agree that the effect of the first clause of section 3 is
  to grandfather Camp Najerog as it existed in 1968.  The parties disagree,
  however, whether the second clause, prohibiting resurrection of a
  nonconforming use once that use has been changed to a permitted use,
  applies to Gore's application for a children's summer camp on his land. (FN1)

       Gore initially applied for, and received, a conditional use permit
  from the Wilmington ZBA for a business venture called the "Najerog Learning
  Center," which would operate on a year-round basis and serve both children
  and adults.  Lashins appealed to the environmental court.  The court's
  order found the Wilmington town ordinance section 3(a) provision "unusual,"
  in that, according to the court, it lacked a discontinuance or abandonment
  provision which "would prevent a landowner's return to a use existing as of
  March, 5 1968, even if the use had been discontinued for some period of
  time."  Finding that the ordinance "at least potentially" allows Gore to
  return the land to its summer camp use as it existed in the season
  preceding 1968, the court held that to the extent property was used for a
  children's camp in 1968, no conditional use permit was required.  The court
  further held that should Gore wish to expand the use of the property beyond
  the level of activity for which the land was used prior to 1968, he must
  apply for the appropriate permit to do so.  The court remanded the matter
  to the ZBA to hear evidence and make findings on the extent to which the
  former Camp Najerog made use of the property in the 1967 season.  
   
 
               
       On remand the Wilmington ZBA held two different hearings.  One hearing
  addressed the scope of Camp Najerog's pre-existing uses and the other
  addressed to what extent Gore's proposal required a conditional use permit
  for the proposed uses which extend beyond those in existence in 1968.  The
  ZBA ultimately granted a conditional use permit for a year-round adult,
  family, and children's camp. 

       Appellant again appealed to the environmental court and filed a motion
  for judgment as a matter of law arguing that the ZBA's grant of a
  conditional use permit was erroneous because it was grounded upon a
  misconstruction of the ordinance's discontinuance provision.  He argued
  that had the court and the ZBA properly construed the discontinuance
  provision it would have examined the whole of Gore's application under
  conditional use criteria - not just those parts of the application which
  extend beyond those uses in existence in 1968.   Appellant's argument is
  based on the premise that use of the land as a children's summer camp was a
  nonconforming use upon adoption of the zoning ordinance.  Given that the
  second provision of section 3(a) prohibits resurrecting a nonconforming use
  once that use has changed, appellants contend that it is, in effect, a
  discontinuance provision which applies in this case to prevent Gore from
  re-opening a children's camp absent some other authorization.  Appellant
  reaches this conclusion based on a reading of the ordinance as a whole, in
  accordance with basic rules of statutory construction, and in conformity
  with Vermont policy of phasing out nonconforming uses.  

       We agree with appellant's reading of the ordinance and find that the
  environmental court's failure to recognize the section 3(a) discontinuance
  provision was clearly erroneous.  See In re Vt. Nat'l Bank, 157 Vt. 306,
  312, 597 A.2d 317, 320 (1991) (standard of review in cases involving the
  interpretation of zoning ordinances is whether the trial court's decision
  was "clearly erroneous, arbitrary, or capricious"); see, e.g., In re
  Gregoire, 170 Vt. 556, 559, 742 A.2d 1232, 1235 (1999) (mem.) (reversing
  environmental court's erroneous "failure to construe the term
  'nonconforming use' to give effect to the whole ordinance").

       "We interpret a zoning ordinance under familiar rules of statutory and
  ordinance construction."  In re Gregoire, 170 Vt. at 559, 742 A.2d  at 1235. 
  The Court construes words to give effect to the whole, and every part, of
  the ordinance.  See In re Stowe Club Highlands, 164 Vt. 272, 279, 668 A.2d 1271, 1276 (1995).  We adopt a construction that implements the ordinance's
  legislative purpose,  In re Gregoire, 170 Vt. at 559, 742 A.2d  at 1235,
  and, "in any event, we will apply common sense."  In re Duncan, 155 Vt.
  402, 408, 584 A.2d 1140, 1144 (1990).  A plain and common sense reading of
  section 3 forces the conclusion that the section includes a discontinuance
  provision which applies to appellee's proposal to resurrect a use that
  preceded the adoption of the ordinance to the extent it does not comply
  with current zoning.
   
       Nonconforming uses are widely recognized as uses that lawfully existed
  prior to enactment of a zoning ordinance, and are maintained after the
  effective date of such ordinance, even though the use does not comply with
  the use restrictions applicable to the area.  7 M. Bender, Zoning and Land
  Use Controls § 41.01 (1996).  Vermont statutes conform to this widely
  accepted definition and define nonconforming uses as "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."  24 V.S.A. §
  4408(a)(1). 

       We have previously examined nonconforming uses arising under 24 V.S.A.
  § 4408(a)(1).  In Town of Brighton v. Griffin, 148 Vt. 264, 532 A.2d 1292
  (1987), the town passed an ordinance which prohibited gas stations unless
  they obtained conditional use permits.  Defendants argued that the gas
  station at issue - which was in use when the zoning ordinance passed, and
  was then discontinued for a period of two years - was a permitted, not a
  nonconforming use within the town's commercial district, and was therefore
  not subject to the zoning ordinance's six-month discontinuance provision
  which applied to nonconforming uses.  While not explicitly raising the
  issue of whether conditional uses are a form of permitted uses or
  nonconforming uses, we proceeded on the premise that, after the town passed
  an ordinance allowing for gas stations only if they obtained conditional
  use permits, the gas station in question was operating as a nonconforming
  use prior to its discontinuance.  Id. at 266, 532 A.2d  at 1293.  We found
  that because the gas station at issue "neither had a conditional use permit
  nor complied in all respects with the zoning ordinance, defendants' auto
  service station was a nonconforming use within the meaning of the
  ordinance."  Id. at 269, 532 A.2d  at 1294.

       The public interest in the regulation and gradual elimination of
  nonconforming uses is strong.  In re Gregoire, 170 Vt. at 559, 742 A.2d  at
  1236.  One goal of zoning is to gradually eliminate nonconforming uses.  In
  re McCormick Mgmt. Co. Inc., 149 Vt. 585, 590, 547 A.2d 1319, 1322 (1988). 
  Section 1 of the Wilmington Town ordinance, incorporates this policy by
  explicit reference to 24 V.S.A. § 4408(b)(3) which states that
  municipalities may regulate and prohibit resumptions of nonconforming uses
  if such uses are abandoned or discontinued for any period of time.  Zoning
  provisions allowing nonconforming uses should be strictly construed.  In re
  Gregoire, 170 Vt. at 559, 742 A.2d  at 1236.
   
       Appellee urges a construction of section 3 of the ordinance so that
  uses existing in 1968 may be resurrected without review or a permit,
  notwithstanding any discontinuation of their existence.  Based on the fact
  that children's camps are listed as a conditional use under section 7,
  appellee argues that conditional uses are a form of permitted uses,
  legislatively approved as consistent with the zoning plan, and are not,
  therefore, nonconforming uses under the ordinance.  Appellee also relies on
  the slight variation between the definition of nonconforming use found in
  section 13 of the Wilmington town zoning ordinance and that found in §
  4408.  The definition contained in the ordinance makes no reference to
  former compliance with applicable laws, ordinances and regulations, prior
  to adoption of the zoning ordinance.  Appellee's argument fails to
  acknowledge section 1 of the ordinance which specifically provides that the
  ordinance is to be interpreted, administered, and enforced in conformity
  with the provisions of state law, with special reference to § 4408.  It
  also ignores the ordinance's section 7, Conditional Uses, which  requires
  conditional use approval when there is a change from one nonconforming use
  to another nonconforming use.  Finally, appellee's argument also ignores
  the purpose of the discontinuance clause, as well as Vermont's policy of
  phasing out nonconforming uses.  Were we to adopt appellee's, and the
  environmental court's construction of the ordinance, a conditional use such
  as a garbage dump, 



  previously shut down for three decades, could be revived and continued in
  perpetuity had it merely existed in 1968 when the zoning ordinance was
  adopted.

       We will assume that any ambiguity in the zoning ordinance is the
  product of inartful drafting and will not read the ordinance's language
  with such exactitude so as to ignore Vermont public policy of phasing out
  and eliminating nonconforming uses.  Reading the ordinance as a whole, and
  in conformity with Vermont public policy, we must give effect to section
  3's discontinuance provision regarding nonconforming uses and find that,
  because the provision refers to those buildings, structures and uses
  pre-existing 1968, it applies to Gore's proposal for a children's camp.  To
  proceed with his project, Gore must obtain a conditional use permit under
  section 7 criteria for the entire project - without consideration of any
  former use that was discontinued over twenty years ago.  We, therefore,
  reverse the environmental court's finding that the ordinance contains no
  discontinuance provision, and remand to the ZBA for complete review of
  Gore's project as a conditional use, without regard to the pre-existing use
  of the land as a children's summer camp. 

       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.  Throughout the course of this litigation, it appears that Gore's
  conditional use permit application changed from an application for a
  year-round environmental learning center serving both children and adults
  to an application for a summer camp strictly for children - one of the
  conditional uses specifically enumerated under section 7 of the Town of
  Wilmington's zoning ordinance.  While discrepancies between the two
  applications were the focus of much of the environmental court's attention
  below, our resolution of this case does not require us to address this
  issue.