In re Casella Waste Management, Inc.
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In re Casella Waste Management, Inc. (2002-324); 175 Vt. 335; 830 A.2d 60
2003 VT 49
[Filed 29-May-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 49
No. 2002-324
In re Appeal of Casella Waste Supreme Court
Management, Inc. and E.C.
Crosby & Sons, Inc. (Sally Mole,
et al., Appellants) On Appeal from
Environmental Court
January Term, 2003
Merideth Wright, J.
David W. Gartenstein of Downs Rachlin Martin PLLC, Brattleboro, for
Appellants.
Robert F. O'Neill, John R. Ponsetto and Megan J. Shafritz of Gravel and
Shea, Burlington, for Appellee Casella Waste Management, Inc.
Mary C. Ashcroft, Rutland, for Appellee Town of Sunderland.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen,
C.J. (Ret.), Specially Assigned
¶ 1. AMESTOY, C.J. Appellants Sally Mole, Dale Guldbrandsen, Tim
and Kerry Walker, and Ruth Fuller-White ("landowners" collectively) appeal
from a decision of the environmental court approving the construction of an
access road connecting a solid waste transfer station owned by appellee
Casella Waste Management, Inc. ("Casella") to Route 7A in Manchester.
Landowners assert that the access road constitutes an unauthorized
extension of a pre-existing nonconforming use to an adjacent parcel
because: (1) Manchester's zoning ordinance does not allow the extension of
a nonconforming use onto land not previously occupied by the nonconforming
use; and (2) the purpose of Vermont's zoning statute is to eliminate
nonconforming uses. Thus, landowners argue that the trial court erred by
construing Manchester's zoning ordinance to permit such a use. We affirm.
¶ 2. Casella owns and operates a solid waste transfer station
located on a parcel of land straddling the Manchester/Sunderland town line.
The transfer station functions as a pre-existing nonconforming use in the
farming and rural residential zoning district in the town of Manchester.
Waste hauling trucks travel to Route 7 or Route 7A via small, rural roads
such as River Road and Richville Road in Manchester, or Sunderland Hill
Road and Hill Farm Road in Sunderland.
¶ 3. In 1998, Casella applied to the State of Vermont District
Environmental Commission # 8 for a permit to upgrade its transfer station
and solid waste hauling operation. The Commission issued the permit on the
condition that Casella either construct a new access road to the facility
or implement a traffic mitigation plan in order to alleviate the adverse
impacts of the commercial trucks on the rural road system. In January
1999, Casella submitted a plan to the Town of Manchester Zoning Board of
Adjustment (ZBA) to construct an access road through an adjacent parcel of
land providing direct access to Route 7A from the transfer station. The
adjacent parcel was previously owned by E.C. Crosby and Sons, Inc., but
Casella purchased it during the course of the permit application process.
¶ 4. Landowners, who live near the transfer station, opposed
Casella's proposed access road. After conducting hearings to review the
project, the Manchester ZBA approved the plan to construct the access road
and issued Casella a permit in June 1999. The ZBA found that the proposed
access road would "improve public health, safety, and welfare by removing
large truck traffic from the back roads of Manchester and Sunderland."
¶ 5. In the summer of 1999, both parties filed notices of appeal to
the environmental court. Casella appealed two conditions imposed by the
ZBA's decision granting permission to build the access road. Landowners
cross-appealed, arguing that the ZBA's decision was invalid. Prior to
trial, landowners moved for summary judgment, asserting that Vermont law
prohibits Casella from extending its nonconforming use onto land not
previously subject to such use unless Casella obtained a variance, and that
in any event Casella would not be eligible to obtain a variance. The
motion for summary judgment was denied. Evidentiary hearings were held
over a three-day period in the fall of 2001. Following post-trial briefing
in which landowners renewed their request that Casella's application be
denied and judgment be entered in their favor as a matter of law, the
environmental court issued a final decision approving Casella's application
on July 5, 2002. This appeal followed.
¶ 6. Zoning ordinances are interpreted according to the general
rules of statutory construction. In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998). Thus, we first look to the plain meaning of the
ordinance. In re Stowe Club Highlands, 164 Vt. 272, 279, 668 A.2d 1271,
1276 (1995). If the plain meaning "resolves the conflict without doing
violence to the legislative scheme, there is no need to go further, always
bearing in mind that the paramount function of the court is to give effect
to the legislative intent." Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47,
49, 527 A.2d 227, 228 (1986). We review the environmental court's
construction of a zoning ordinance to determine whether the interpretation
is clearly erroneous, arbitrary or capricious. Weeks, 167 Vt. at 554, 712 A.2d at 909.
¶ 7. Landowners' principal contention in this case is that the
environmental court erred in construing Manchester's zoning ordinance so as
to authorize an extension of a nonconforming use to adjacent land. At
issue is the environmental court's interpretation of § 8.1.1.3 of
Manchester's ordinance, which provides:
No nonconforming use shall be extended or expanded, except with
the approval of the [ZBA], provided that the [ZBA] shall have
found that such extension or expansion will have no adverse effect
upon the public health, safety, convenience, and upon property
values in the vicinity; and, in judging the application, the [ZBA]
should consider the criteria that would apply to the use if it
were in a zone in which the use is permitted.
¶ 8. Landowners assert that because "the central purpose of the
zoning statute [is] to eliminate nonconforming uses," In re Richards, __
Vt. __, __, 819 A.2d 676, 683 (2002), a zoning ordinance must be strictly
construed against the extension of nonconforming uses onto land not
previously occupied by the nonconforming use. Landowners contend that the
environmental court's decision approving Casella's permit application must
be reversed because neither Manchester's zoning ordinance nor Vermont's
zoning laws provide the authority to grant a permit under the facts of this
case. We disagree.
¶ 9. Landowners correctly observe that there is a strong public
interest in regulating the extension and undue perpetuation of
nonconforming uses. In re Gregoire, 170 Vt. 556, 559, 742 A.2d 1232, 1236
(1999) (mem.). One of the primary goals of zoning is to gradually
eliminate nonconforming uses because "they are inconsistent with the
purpose of developing use-consistent areas in communities." Id. at 558,
742 A.2d at 1235. As such, we strictly construe zoning ordinances allowing
nonconforming uses. Id. at 559, 742 A.2d at 1236.
¶ 10. Vermont's relevant zoning statute, 24 V.S.A. § 4408(b),
authorizes municipalities to regulate nonconforming uses in the following
four circumstances: "(1) Changes of nonconforming uses to another
nonconforming use; (2) Extension or enlargement of nonconforming uses; (3)
Resumptions of nonconforming uses . . . ; and (4) Movement or enlargement
of a structure containing a nonconforming use." Vermont law does not
mandate a specific method for regulating nonconforming uses; thus, "we turn
to the municipal zoning regulation to determine how the municipality
regulates nonconforming uses." In re Miserocchi, 170 Vt. 320, 324, 749 A.2d 607, 610 (2000).
¶ 11. With respect to the "[e]xtension or enlargement of
nonconforming uses," 24 V.S.A. § 4408(b)(2), municipal approaches have
varied considerably, ranging from a complete prohibition on extending
nonconforming uses to adjacent parcels to permitting extensions with zoning
board approval. For example, the zoning ordinance at issue in DeWitt v.
Brattleboro Zoning Board of Adjustment, 128 Vt. 313, 262 A.2d 472 (1970),
contained a prohibition on the extension of nonconforming uses which stated
that "[a] nonconforming use shall not be enlarged or extended." Id. at
318, 262 A.2d at 475 (quoting Town of Brattleboro, Vt. Ordinance art. XIII,
§ 1301(a) (1964)). In contrast, the zoning ordinance at issue in Franklin
County v. City of St. Albans, 154 Vt. 327, 576 A.2d 135 (1990), permitted
the extension of any legal nonconforming use upon zoning board approval,
"providing it does not adversely affect the surrounding areas and providing
it meets the same criteria as for special conditional use." Id. at 328, 576 A.2d at 136 (quoting Town of St. Albans, Vt. Ordinance § 604 (1977)).
¶ 12. Landowners argue strenuously that the presumption against
extension of nonconforming uses is so great as a matter of law that it was
error for the environmental court to construe the Manchester ordinance as
authority for extending a nonconforming use to adjacent land, absent
specific language granting such authority. Indeed, landowners contend that
even if the ordinance contained such language, the approval of Casella's
application would be illegal because 24 V.S.A. § 4408 should be read to
prohibit "ambulatory" nonconforming uses. Notwithstanding landowners'
contrary interpretation, we are not confronted with a decision of the
environmental court that failed to construe the term "nonconforming use" to
give effect to the whole ordinance. Cf. Gregoire, 170 Vt. at 558-59, 742 A.2d at 1235 (finding that environmental court's "narrow interpretation of
'use' failed to consider whether the Town's regulation of the use of land
brought the [property] within the ambit of restrictions relating to
'noncomplying use' "). Here, the environmental court specifically
concluded that the Manchester zoning ordinance provides for the expansion
of nonconforming uses on a separate parcel of land not formerly occupied by
the nonconforming use.
¶ 13. It is not necessary to take issue with landowners' assertion
that "[a] rule that nonconforming uses become ambulatory if a developer
buys up adjacent land . . . would be bad policy" in order to address the
issue this case presents. This is not a situation where the zoning
ordinance in question fails to provide any criteria or guidelines under
which the ZBA may evaluate whether to approve an extension of a
nonconforming use to adjacent land. Cf. Miserocchi, 170 Vt. at 325, 749 A.2d at 611 (explaining that since the zoning regulation in dispute failed
to provide any criteria under which the board of adjustment could evaluate
whether to approve a change in nonconforming use, "the applicant . . . is
left uncertain as to what factors are to be considered") (quoting Town of
Westford v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973)). Section
8.1.1.3 of Manchester's ordinance provides specific criteria to guide the
ZBA in considering permit applications. For example, before approving an
extension or expansion, the ZBA must "consider the criteria that would
apply to the use if it were in a zone in which the use is permitted" and
find that the "extension or expansion will have no adverse effect upon the
public health, safety, convenience, and upon property values in the
vicinity." Town of Manchester, Vt. Ordinance § 8.1.1.3 (1998).
¶ 14. Landowners cite DeWitt as the "seminal case" supporting their
assertion that "nonconforming uses are not ambulatory." In DeWitt, we
found that the proposed extension of the gas station onto adjacent land was
absolutely prohibited by Brattleboro's zoning ordinance, which read,
without exception, that "[a] nonconforming use shall not be enlarged or
extended." 128 Vt. at 318, 323, 262 A.2d at 475, 478. Similarly, another
case relied upon by landowners, Rotter v. Coconino County, 818 P.2d 704
(Ariz. 1991), involved a county zoning ordinance which provided that a
nonconforming use may not expand onto a "site which it did not occupy at
the time it became a nonconforming use." Id. at 706 (quoting Coconino
County, Ariz. Ordinance § 17.3(B) (1987)). The zoning ordinances at issue
in both DeWitt and Rotter, however, are significantly different from
Manchester's ordinance, which expressly allows extensions and expansions of
nonconforming uses that are approved by the ZBA pursuant to identified
criteria.
¶ 15. Nor can landowners look to DeWitt for support of their
contention that the law can never authorize the extension of a
nonconforming use to an after-acquired adjacent parcel. Landowners'
assertion that clearly established principles of Vermont law and public
policy disfavor nonconforming uses does not compel the legal conclusion
that extension of nonconforming uses cannot be authorized. Indeed, the
DeWitt opinion's reliance on the prohibitory language of the Brattleboro
ordinance and the Court's observations that extension of a nonconforming
use is "not automatic[]", is impermissible "in most instances", and may be
justified by "urgent necessity", 128 Vt. at 320, 262 A.2d at 476-77,
suggests that such extension is permissible when within the appropriate
statutory context and predicated upon a sufficient factual foundation.
¶ 16. Despite landowners' attempt to characterize the environmental
court's interpretation of the Manchester zoning ordinance as an unlawful
and unwise acknowledgment of a right to an "ambulatory" nonconforming use,
Casella does not claim to have a right to the extension of the
nonconforming use. Casella claims only that, under the Manchester
ordinance, the ZBA may approve such an extension or expansion, pursuant to
the requisite criteria. Cases which involve attempts by the landowners to
extend nonconforming uses in the face of prohibitive ordinances, whether by
claim of right, as in Rotter, or by request for a variance, as in DeWitt,
are inapposite where we are confronted with a permissive ordinance. Cf. In
re Maurice Memorials, 142 Vt. 532, 536, 458 A.2d 1093, 1095 (1983) ("[I]n
the absence of further zoning provisions permitting enlargement . . . of a
nonconforming use, such [extension of a nonconforming use] prohibited by
ordinance may only be done by way of variance.").
¶ 17. The primary purpose of zoning is to bring about the orderly
physical development of a community. Vt. Brick & Block, Inc. v. Village of
Essex Junction, 135 Vt. 481, 483, 380 A.2d 67, 69 (1977). The Legislature
has, however, provided municipalities with the authority under 24 V.S.A. §
4408(b) to fashion a flexible approach to address this goal. As a result,
the town of Manchester created a zoning ordinance which allowed for the
expansion or extension of a nonconforming use with zoning board approval in
unique circumstances, such as the one presented here. Commentators have
acknowledged the benefits of allowing the extension of nonconforming uses
under such zoning regulations:
The chief advantages of regulations which require administrative
approval of extension are the opportunity they afford to make a
case-by-case prognosis of the probable effect of extension, and
the possibility of imposing conditions which will protect nearby
landowners from injury caused by the expansion of a nonconforming
use. . . . [T]hese regulations are capable of providing flexible
control of nonconforming uses which permits the use to adjust to
growth and change, but protects the area from severe injury.
1 R. Anderson, American Law of Zoning 3d § 6.53, at 607-08 (1986).
¶ 18. This case presents a situation where, in addition to a
finding that the project would not adversely affect public health, safety,
and convenience, both the ZBA and the environmental court found that
Casella's proposed access road would actually improve these areas. Indeed,
Casella initiated the plan in response to the District Environmental
Commission's suggestion that Casella amend the application to include a
right of way to Route 7A for heavy trucks in order to provide for the
safety of pedestrians and others who use the same roads, as well as to
prevent or mitigate traffic impacts. The environmental court also found
that the use of the access road would decrease the damage to the rural
roads and the risk of harm to pedestrians, horseback riders, bicyclists and
other users of the roads, by reducing the heavy truck traffic. The court
found that the road is designed to minimize adverse effects on the
surrounding environment and to be unobtrusive to the viewshed of the
valley. Taking all of the evidence into consideration, the court concluded
that the proposed access road would not adversely affect the capacity of
existing or planned community facilities, traffic on roads and highways in
the vicinity, or the character of the area.
¶ 19. We cannot say that under the facts of this case the
environmental court's interpretation of Manchester's ordinance was clearly
erroneous, arbitrary or capricious, and accordingly, the decision of the
environmental court is affirmed.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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