In re Dept. of Buildings & General Services
Annotate this Case
In re Dept. of Buildings & General Services (2002-134); 176 Vt. 41; 838 A.2d 78
2003 VT 92
[Filed 10-Oct-2003]
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.
2003 VT 92
No. 2002-134
In re Appeal of Buildings and General Services Supreme Court
On Appeal from
Environmental Court
November Term, 2002
Merideth Wright, J.
William H. Sorrell, Attorney General, William H. Rice, Assistant Attorney
General, and Stacy A. Butler, Assistant Attorney General, Montpelier,
for Appellant.
J. Christopher Callahan and Brendan P. Donahue of Brady & Callahan, P.C.,
Springfield, for Appellee.
Jon Groveman, Montpelier, for Amicus Curiae Vermont League of Cities and
Towns.
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.
¶ 1. DOOLEY, J. The Vermont Department of Buildings and General
Services (State Buildings) appeals from the environmental court's holding
that the Town of Windsor (Town) may regulate aspects of certain uses -
specifically, state or community owned and operated institutions and
facilities - beyond those specifically enumerated in 24 V.S.A. § 4409(a) so
long as the Town makes reasonable provision for the location of the use.
More precisely, State Buildings maintains that, despite the Town's
reasonable provision for the location of a state-owned maintenance
facility, the Town exceeded its regulatory authority under 24 V.S.A. §
4409(a) by regulating the use of the facility as well as particular
physical characteristics not enumerated in the statute. We agree and
reverse.
¶ 2. The State of Vermont owns a parcel of land situated in a
resource (R5) zoning district in the Town. The parcel contains two
facilities, the Southeast State Correctional Facility and the Southern
District Maintenance Facility, which are operated by different state
departments. The correctional facility's fence and perimeter roadway
separate it from the maintenance facility, which consists solely of an
office building and an old one-bay garage. The maintenance facility is
used by the State Buildings as an office for its southern district and for
maintenance vehicles and equipment necessary for its maintenance
activities.
¶ 3. On July 10, 2000, State Buildings applied for a zoning permit
to replace the maintenance facility's existing one-bay garage with a
three-bay garage. On July 19, the Windsor Zoning Administrator ruled that
the application required site plan review by the Planning Commission and
conditional use review by the Zoning Board of Adjustment (ZBA). State
Buildings did not contest this determination. The Planning Commission
approved the site plan a month later on August 21, and this approval was
not appealed. On August 28, the ZBA approved the conditional use
application, finding that the garage was an accessory structure allowed as
a conditional use in the district and met the general standards found in
the zoning ordinance and 24 V.S.A. § 4407(2). The findings reflect the
representations of State Buildings in its application. The approval was
subject to six conditions as follows:
2. Applicant must construct, maintain and operate the proposed
30x50' 3-bay replacement garage and related improvements in strict
conformance with the Site Plan and project description submitted
by them and specifically identified in the findings of fact.
3. The building shall meet all Labor and Industry requirements.
4. Landscaping shall be maintained at the standards consistent
with the surrounding buildings.
5. Any exterior lighting added during construction will be
directional in nature to shine forward and down.
6. Any proposed signage will meet the sign regulation of the
Windsor Zoning Bylaws.
7. Applicants shall construct all improvements, including
landscaping, authorized by this approval within one year of the
date of this approval or this approval shall automatically become
null and void.
¶ 4. State Buildings appealed the ZBA decision and the permit to
the environmental court, arguing that the Town of Windsor exceeded its
regulatory authority under 24 V.S.A. § 4409(a) by regulating aspects of the
project, such as the intended use, beyond those enumerated in § 4409(a),
and by requiring the project to conform to Town zoning requirements and
bylaws. Specifically, State Buildings attacked conditions 2, 3, 5, 6, and
7 as beyond the power of the ZBA. In connection with its challenge to
condition 2, it disputed ten of the findings of fact which reflected State
Buildings' description of the new maintenance building or its use. State
Buildings argued that the Town did not have the power to require it to
adhere to its description through an approval condition. It also raised
the more general question of whether the ZBA has the authority to grant
conditional use approval for a state facility based upon findings of facts
and conclusions of law that address elements outside the scope of 24 V.S.A.
§ 4409(a).
¶ 5. State Buildings filed for summary judgment, relying upon 24
V.S.A. § 4409(a), which provides:
Unless reasonable provision is made for the location of any of the
following in a [zoning] bylaw . . . the following uses may only be
regulated with respect to size, height, bulk, yards, courts,
setbacks, density of buildings, offstreet parking and loading
facilities and landscaping or screening requirements:...(2) State
or community owned and operated institutions or facilities...
State Buildings argued that § 4409(a) greatly restricts a municipality's
ability to regulate state-owned land uses. Specifically, State Buildings
argued that a municipality can regulate only with respect to the list of
elements in the statute plus location, but with respect to the latter only
if the municipality makes reasonable provision for the location of the
state institution or facility within the municipality. The Town countered
with its own motion for summary judgment, arguing that State Buildings read
the statute too narrowly. It argued that § 4409(a) allows a municipality
to regulate state-owned facilities and institutions to the same extent as
private land uses as long as the municipality makes reasonable provision
for the location of the state facilities and institutions. Only if the
municipality fails to make reasonable provision for these facilities and
institutions, the Town asserted, is it restricted to the statutory list of
permissible zoning regulation subjects. Finally, the Town claimed that it
made reasonable provision for the location of the correctional center and
maintenance facility, and, as a result, it could apply its zoning
regulations fully to the State Buildings' application with no limits
imposed by § 4409(a).
¶ 6. Although the parties framed almost exclusively a question of
law turning on the proper construction of § 4409(a), their filings did
reveal a dispute over the nature of the development application and the
review required under the zoning ordinance. The Town asserted that the
maintenance facility was part of the correctional facility, which was an
approved conditional use in the zoning district in which it was sited.
Thus, the Town applied conditional use review to the State Buildings'
development application. State Buildings claimed that the maintenance
facility was a separate use, adjoining but unconnected to the correctional
center. As the environmental court noted, a difficulty with State
Buildings' position was that the zoning ordinance did not authorize the
maintenance facility as either a permitted or conditional use in the
district in which it was located. The ordinance did provide for Public
Building: Maintenance & Storage as a conditional use in other districts.
Thus, the court concluded that under State Buildings' theory, the
application could be allowed only as an expansion to a preexisting
nonconforming use or as an expansion to a use which holds an erroneously
issued but final permit.
¶ 7. The environmental court did not resolve this conflict because
it found that § 4409(a) did not limit the Town's ability to regulate the
proposed replacement of the maintenance facility. In reaching this
conclusion, it adopted the Town's interpretation of § 4409(a) and found
that the Town had made reasonable provision for the location of state-owned
facilities and institutions in its zoning ordinance. Thus, it affirmed the
permit issued by the ZBA. State Buildings appeals here, making the same
argument regarding the proper interpretation of 24 V.S.A. § 4409(a).
¶ 8. The primary question presented to this Court is whether the
environmental court erred in interpreting 24 V.S.A. § 4409(a) to mean that
once a municipality provides a reasonable location for a state facility,
the municipality may regulate all aspects of the state project, even those
not enumerated in the statute. Issues concerning the proper construction
of a statute are questions of law, and thus reviewed on a nondeferential
and plenary basis. State v. Koch, 169 Vt. 109, 112, 730 A.2d 577, 580
(1999).
¶ 9. The parties agree on part of the meaning of the statute. They
agree that if a municipality fails to make a "reasonable provision . . .
for the location of State . . . owned and operated institutions and
facilities," a municipality can regulate those institutions and facilities
through zoning only "with respect to size, height, bulk, yards, courts,
setbacks, density of buildings, offstreet parking and loading facilities
and landscaping or screening requirements." 24 V.S.A. § 4409(a)(2). They
disagree, however, on the municipality's regulatory power if it makes
reasonable provision for the location of state-owned and operated
facilities and institutions. In the Town's view, a municipality is then
free to exercise the same zoning power over those facilities and
institutions as it could if they were privately owned - that is, without
regard to any limitations imposed by § 4409(a). In State Buildings' view,
the Town is then free to regulate location in addition to the statutory
elements, but nothing more.
¶ 10. We have twice addressed § 4409(a) in the context of a state
development application, but neither decision clearly answers the question
before us. In Morse v. Vt. Div. of State Bldgs., 136 Vt. 253, 388 A.2d 371
(1978), which also involved the Town of Windsor, State Buildings embarked
on a landscaping and sewer construction project for a residential treatment
facility in the Town. It sought a zoning permit for the landscaping, but
not for the sewer disposal system, and the Town sought to stop the latter.
This Court phrased the question before it as:
whether or not that zoning authority [under § 4409(a)] also
extends to sewer construction. If it does, clearly, the Buildings
Division is required to follow its procedures. If it does not,
equally clearly, the Zoning Administrator had no authority to
condition the issuance of the permit for landscaping or the
procuring of a sewer construction permit from the town.
Id. at 255, 388 A.2d at 372. We also posed the issue as one of
sovereignty: "[w]here conflict occurs, and no resolution is statutorily
prescribed, the municipality must yield." Id. We held that since sewer
construction is not one of the uses a municipality is authorized to
regulate with respect to a state-operated institution, the Town could not
prevail. Id. at 256, 388 A.2d at 373.
¶ 11. Morse is of limited assistance to us because the opinion does
not indicate whether the Town had made reasonable provision for the
location of state-owned and operated facilities, and fails to address that
part of the statute. The statute was again addressed in Vt. Div. of State
Bldgs. v. Town of Castleton Bd. of Adjust., 138 Vt. 250, 415 A.2d 188
(1980), in which State Buildings proposed to remodel a college dormitory
into a juvenile detention facility and the Castleton ZBA denied the permit
because the project failed to meet the setback requirements in the
ordinance. In that case, however, the Town of Castleton was regulating the
use with respect to a statutorily-authorized element, setbacks, so
construction of § 4409(a) was unnecessary. We did, however, describe the
statute more fully than we did in Morse:
Section 4409(a) specifies that municipalities may make reasonable
provision for the location of such facilities by bylaw and, even
if no such provisions are made, that municipality may,
nevertheless, regulate these facilities with respect to size,
height, bulk, yards, courts, setbacks, density of buildings,
off-street parking and loading facilities and landscaping or
screening . . . . A municipality cannot, for example, condition
the granting of a landscaping permit to the submission by the
public agency to the municipality's authority to regulate the
location of its facility, unless reasonable provision has been
made in the municipal bylaws concerning such location
requirements.
Id. at 258, 415 A.2d at 193-94 (internal citations ommitted). Although
Town of Castleton addressed the opening phrase of § 4409(a), it did so only
with respect to the Town of Castleton's power to regulate the location of
the state facility. It did not address the nonlocation regulation at issue
in this case.
¶ 12. We acknowledge that if we were to decide this case solely on
the statutory language, the Town has the better side of the argument. The
Vermont Planning and Development Act gives the Town broad power to
restrict, regulate, and determine land development. 24 V.S.A. §
4401(b)(1). Section 4409(a) represents a limitation on that broad power.
Nowhere does the statutory wording explicitly limit the Town's power to
employ its full zoning power with respect to state-owned and operated
facilities if it provides reasonable provision for the location of the
facilities. Further, § 4409(a) applies to other land uses - for example,
those of churches or hospitals - where sovereign immunity is not directly
involved. See id. §§ 4409(a)(4), (5).
¶ 13. Nevertheless, we are not prepared to go as far as the
environmental court and hold that the meaning of the statutory language is
so plain that no aids to construction should be employed. See Town of
Killington v. State, 172 Vt. 182, 188, 776 A.2d 395, 400 (2001) (normally
"we accept the plain meaning as the intent of the Legislature without
looking further"). We are required to implement the intent of the
Legislature. See id. As Morse and Town of Castleton make clear, the
statute involves not only a limitation on the Town's zoning power, but also
a limitation on the State's sovereignty with respect to the use of its
land. The presumption of legislative intent, if any, resides with the
State. See Morse, 136 Vt. at 256, 388 A.2d at 373 ("unless some contrary
statutory grant exists, the zoning authority of a municipality . . . cannot
obstruct the implementation of state purpose and authority"). Although the
language favors the Town, it does not explicitly state the Town's position
that it should be able to regulate any aspect of State Buildings
development project.
¶ 14. The State urges that we should decide this case based
primarily on the legislative history behind the statute. We have
frequently relied upon legislative history where the meaning of the statute
cannot be determined from the words alone. See, e.g., Sagar v. Warren
Selectboard, 170 Vt. 167, 171-73, 744 A.2d 422, 426 (1999); In re Margaret
Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999). In relying upon
legislative history, however, we must be cognizant of the quality of the
evidence of legislative intent. Thus, we noted in State v. Madison, 163
Vt. 360, 373, 658 A.2d 536, 545 (1995) that "the remarks of a witness at a
committee hearing are accorded little weight in determining the intent of
the Legislature in enacting a statute."
¶ 15. State Buildings relies upon two kinds of legislative history:
(1) the history of enactment of an amendment to § 4409(a), and (2) the
history of the bill that resulted in the key language of § 4409(a). With
respect to the former, State Buildings notes that in its original form, §
4409 began: "The following uses may only be regulated with respect to . . .
." See 1967 (Adj. Sess.), No. 334, § 1 (adding 24 V.S.A. Chapter 91,
including § 4409). Based on this language, and on the section's title -
"Limitations" - it is evident that the Legislature originally intended §
4409 to limit on the ability of municipalities to control the listed uses
and did not allow them to regulate the location of such uses. In 1972, the
Legislature added the opening clause of § 4409(a) - "Unless reasonable
provision is made for the location of any of the following in a [zoning]
bylaw . . . ." 1971, No. 257 (Adj. Sess.), § 11, eff. Apr. 11, 1972. The
operative language has remained the same since the 1972 amendment. Given
this legislative history, State Buildings argues that it is unlikely the
same legislature that in 1967 permitted very limited zoning regulation of
state facilities, would turn around and enact an amendment in 1972 giving
towns making a reasonable provision on location, unlimited power to
regulate all other aspects of state-owned and operated facilities.
¶ 16. State Buildings relies more heavily on the second part of the
legislative history, the committee discussions on the 1972 amendment. (FN2)
The amendment started as House Bill 80, and from the outset contained the
additional clause to be added to 24 V.S.A. § 4409(a) as it reads today. H.
80 was labeled in the House Natural Resources Committee as "providing for
housekeeping changes in the Planning and Development Act passed in a
previous session." Record of Committee Meetings, Feb. 2, 1971, House
Natural Resources Committee. The bill passed the House and was presented
in the Senate Natural Resources Committee by Representative Edward Crane,
the lead House sponsor, and Bernard Johnson of the State Planning Office,
who apparently did much of the drafting. There was extensive discussion of
the new opening clause to be added to § 4409(a). The presentation of
Representative Crane and Mr. Johnson, as well as the Senate committee
discussion, is consistent with State Building's interpretation of the
statute. That is, the committee presentation and discussion shows that the
purpose of the added language was to allow a municipality to regulate the
location of the uses covered in § 4409(a) as long as the town made
reasonable provisions for location of the uses. As Mr. Johnson stated:
This wording was added to give a town the opportunity to regulate
the location of such things as certain public utilities and other
kinds of things that are listed. The way it reads now, these may
be regulated only in terms of things such as setback and height
limitations and landscaping and so on. The philosophy has been up
to this point that they should be regulated in terms of all things
with the exception of their location in a community. This wording
would say that if the community had a specific portion of its
zoning regulations which addressed itself to the location of these
kinds of facilities, such as a power generating plant for example,
if they made provision in their law, then they can use that
provision to regulate the location. However, if the local zoning
ordinance says absolutely nothing about it, then they may not.
That is why it is stated in kind of a negative way. In other
words, unless reasonable provision is made for the location of any
of the following.
Testimony of Bernard Johnson on H. 80 to Senate Natural Resources
Committee, at 20 (Feb. 2, 1972); see also Testimony of Rep. Edward T. Crane
on H.411 to Senate Natural Resources Committee, at 21 (Feb. 2, 1972) ("The
idea [behind the amendment] was to strengthen the local planning commission
and board of adjustment's authority to regulate where certain uses would
take place.").
¶ 17. We find the committee testimony and discussion much more
weighty in determining legislative intent than the "remarks of a witness in
a committee hearing" that we held in Madison would be given little weight.
Here, the statements were made by the chief sponsor of the bill and its
draftsperson and directly addressed the intent issue before us. Given
these explicit statements of the amendment's purpose, we find that the
amended "unless" clause merely added location to the already enumerated
list of regulable aspects and did not expand municipal power to the extent
urged upon us by the Town. See In re Jewell, 169 Vt. 604, 606, 737 A.2d 897, 900 (1999) (mem.) (this Court will not construe a statute in such a
way that is at odds with its underlying purpose).
¶ 18. Although we resolve the specific issue on appeal differently
than the environmental court, our decision only begins to respond to the
questions State Buildings raised on appeal to the environmental court. We
note two of the remaining questions that must be resolved on remand to be
clear on the scope of this opinion. First, we note that the environmental
court will have to resolve the difference over the current zoning status of
the maintenance facility. On this point, the position of each of the
parties raises new issues. If the maintenance facility is covered by the
conditional use permit issued for the correctional facility, the court must
consider whether State Buildings now can attack conditional use review, or
narrow that review, in the context of a permit amendment and after the
zoning administrator ruled, without appeal, that conditional use review
under the ordinance was required. We also note that it is not clear that
State Buildings ever objected to conditional use review before the ZBA.
¶ 19. If, on the other hand, the maintenance facility is not covered
by the zoning permit for the correctional facility, the court must
determine how the current facility can be lawfully expanded. The Town's
power to regulate location of a state-owned and operated facility
necessarily gives it some regulatory power if the facility is in an
unauthorized location.
¶ 20. Second, we note that some of the current controversy resulted
from zoning administration concerns rather than from explicit attempts to
engage in unauthorized zoning regulation of a state-owned facility. State
Buildings submitted a zoning permit application that provided, in part:
The undersigned hereby requests a zoning permit for the following
use, to be issued on the basis of the representations contained
herein. Permit voided in the event of misrepresentation or
failure to undertake construction within one (1) year of the date
of issuance and diligently prosecuted thereafter. Permits only
authorize development as described in the application; any
substantive change of plans shall require reapplication.
Although we apparently do not have before us all the information provided
in connection with this application and the request for site plan review,
it appears that all the information contained in the ZBA's findings of fact
came from State Buildings, either in connection with the application(s) or
at its oral presentation.
¶ 21. The zoning administrator and ZBA can act only in response to
an application that describes the project to be permitted. In City of
South Burlington v. Dep't of Corr., 171 Vt. 587, 590-91, 762 A.2d 1229,
1231-32 (2000) (mem.), we ruled that a state agency could not accept permit
restrictions without appeal and later claim that the conditions are invalid
because of the limitations in § 4409(a). We reasoned:
The Department responds that it cannot be bound by § 4472 [the
appeal requirement statute] because it, as an agency of the
sovereign, is immune from municipal zoning regulations of any
factor not specified in 24 V.S.A. § 4409. It further argues that
it had no need to appeal the 1992 site-plan approval because it
knew the condition [limiting the number of inmates] was
unenforceable due to its sovereign immunity. Essentially, the
department argues that it need not raise its claim to sovereign
immunity until it chooses to do so and that no zoning proceeding
is really final because it can always reopen a dispute by claiming
sovereign immunity. We reject this argument. Section 4472
demonstrates an unmistakable intent to limit zoning disputes to a
well-defined procedure and to provide finality at the end of the
proceedings. We are not convinced that the state should be exempt
from these requirements.
Id. at 590, 762 A.2d at 1231. Similarly, we are not convinced that State
Buildings is exempt from normal application procedures.
¶ 22. In the environmental court, State Buildings explained its
actions with respect to the findings of fact: "The State of Vermont
typically presents elements of a project not listed under 24 V.S.A. § 4409
for informational purposes, however an applicant does not have the
authority nor can a zoning application be considered to subject the State
to a broader scope of regulatory authority than granted to a municipality
under 24 V.S.A. § 4409." To ensure procedural regularity, however, the
zoning administrator and ZBA must be able to make a determination of what
aspects of the project can be regulated under § 4409(a). This case is a
good example of the complexity of that determination given State Building's
claim that the maintenance facility must be treated independently in a
district in which the use is not authorized. This determination can be
made only if the state agency presents the proposed project and is clear
from the outset how § 4409(a) limits the municipality's regulation of the
project.
Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
______________________________________________________________________________
Footnotes
FN1. Justice Morse sat for oral argument but did not participate in this
decision.
FN2. Six days before oral argument, and approximately five months after
submission of its reply brief, State Buildings, through counsel, submitted
to this Court a compilation of legislative history pertaining to 24 V.S.A.
§ 4409(a). The Town has moved to exclude this submission as untimely under
V.R.A.P. 28, arguing that it constitutes new information beyond the scope
of the pleadings. The Town's motion is denied. As we state in the text,
legislative history plays an integral role in determining legislative
intent of unclear and ambiguous statutory language.
Parties may provide us "pertinent and significant authorities" bearing
on their argument under V.R.A.P. 28(i), even if after briefing and
argument. While the State Buildings can be faulted for not researching the
legislative history prior to filing a brief, we see little prejudice to the
Town. The Town's attorney is free to independently research the
legislative history and provide additional information, seeking additional
time if necessary to do so. We would, of course, prefer that the parties
provide us pertinent legislative history rather than doing the research
independently. In any case, parties and their attorneys should be on
notice that legislative history may be consulted with respect to statutes
the Court finds are ambiguous, whether or not the parties do the needed
research.
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