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.
