Appeal of Curtis, et al.
Annotate this Case
Appeal of Curtis, et al. (2005-129); 179 Vt. 620; 896 A.2d 742
2006 VT 9
[Filed 19-Jan-2006]
[Motion for Reargument Denied 24-Feb-2006]
ENTRY ORDER
2006 VT 9
SUPREME COURT DOCKET NO. 2005-129
OCTOBER TERM, 2005
Appeal of Curtis, et al. } APPEALED FROM:
}
}
} Environmental Court
}
}
} DOCKET NO. 231-12-03 Vtec
Trial Judge: Merideth Wright
In the above-entitled cause, the Clerk will enter:
¶ 1. This case concerns the installation of wireless
telecommunications antennas in the bell towers of St. Mary's Star of the
Sea Catholic Church in Newport, Vermont, and the construction of a shed on
church property to house related equipment. On August 12, 2003, Verizon
Wireless applied to the Zoning Administrator for a zoning permit to install
the antennas and build the shed. A group of Newport residents opposed the
project. The Zoning Administrator granted the permit, but first required
Verizon Wireless to obtain site plan approval from the Newport Planning
Commission. The Zoning Board of Adjustment upheld the Zoning
Administrator's issuance of the permit. Both parties appealed to the
environmental court, which granted partial summary judgment in favor of
each by holding that the project was not prohibited by the Newport City
Zoning Bylaw but required site plan approval. On appeal to this Court,
residents contend that the bylaw prohibits the project because only one
principal use and one principal structure are allowed on the property. On
cross-appeal, Verizon Wireless argues that the bylaw does not require site
plan approval. We affirm in part and reverse in part.
¶ 2. On review of summary judgment rulings, "we apply the same
standard as the trial court and will affirm . . . if there are no genuine
issues of material fact and the moving party is entitled to judgment as
matter of law." In re Jackson, 2003 VT 45, ¶ 11, 175 Vt. 304, 830 A.2d 685 (quotations omitted). We will uphold the environmental court's
construction of a zoning bylaw "if it is rationally derived from a correct
interpretation of the law and not clearly erroneous, arbitrary, or
capricious." In re Bennington Sch., 2004 VT 6, ¶ 11, 176 Vt. 584, 845 A.2d 332 (mem.). "[W]e will adopt the interpretation that implements the
legislative purpose." In re Nott, 174 Vt. 552, 553, 811 A.2d 210, 212
(2002) (mem.). We construe the words of a zoning ordinance "according to
their plain and ordinary meaning, and the whole of the ordinance is
considered in order to try to give effect to every part." Id. at 211-12.
¶ 3. The facts are not disputed. St. Mary's Star of the Sea
Catholic Church is located in the Urban Residential District of Newport for
zoning purposes, and St. Mary's is a religious institution within the
meaning of the bylaw. The present use of the property is solely for St.
Mary's Church. Verizon Wireless entered into a lease agreement with St.
Mary's to install six wireless communication panel antennas, three inside
each of two stone bell towers, and to construct a separate shed on church
property. The proposed shed would be twelve feet by thirty feet, ten feet
high, and would contain communications equipment, air conditioning units,
and a diesel fuel generator.
¶ 4. At issue is the environmental court's interpretation of various
provisions of the bylaw. In 2002, an amendment to the bylaw added a
provision that regulates "Personal Wireless Telecommunications Facilities."
Newport City Zoning Bylaw § 346. Section 346 subdivides wireless
facilities into two classes: small-scale facilities, and all others that do
not meet the small-scale definition. Id. §§ 346.05, 346.06. A small-scale
facility is defined as the "placement of wireless telecommunications
antennas, repeaters or micro cells on existing buildings, structures,
roofs, or walls, and not extending more than 10 feet from the same, or the
installation of ground facilities less than 20 feet in height." Id. §
346.05. The environmental court found that Verizon Wireless' project is a
small-scale facility within the meaning of § 346.05. (FN1) The permitting
process places fewer requirements on applications for small-scale
facilities. Compare id. § 346.05 with § 346.06. In addition, the bylaw
prioritizes potential siting locations. First preference is given to
siting facilities on municipally-owned land or structures, and second
preference is to site them "[w]here the visual impact of towers can be
minimized by the use of camouflage, stealth design or other innovative
measures to reduce, eliminate or disguise the negative visual impact." Id.
§ 346.04.
¶ 5. On appeal, residents argue that the environmental court erred
in upholding the permit because the project is precluded by § 308 of the
bylaw. That section mandates that, in urban residential districts, there
be "only one principal use or structure on a lot unless otherwise approved
under the Planned Unit Development provisions." The antenna and shed were
not approved under the Planned Unit Development provisions. Residents
argue that § 308 precludes the construction of wireless telecommunications
facilities on the church lot because the facilities would be an
impermissible second principal use of the property and the shed an
impermissible second principal structure. The environmental court
harmonized the bylaw sections and held that the project does not amount to
a second principal use, but instead constitutes an "allowed subordinate
use." Noting the bylaw's preference for stealth placement of wireless
facilities, the court reasoned that § 308 does not "preclude approval of a
subordinate or incidental second use on a lot that is specifically
authorized elsewhere in the Zoning Bylaw and is not a second principal use
on that lot."
¶ 6. Residents' argument is unavailing. Even assuming the project
were a "principal use," we would give effect to § 346, which specifically
addresses siting such facilities on or near existing structures, instead of
§ 308, which generally disallows more than one principal use per lot. See
State v. Teachout, 142 Vt. 69, 73, 451 A.2d 819, 820-21 (1982) (recognizing
that when two provisions address the same subject matter and one is general
and the other specific, the latter is given effect). In addition, the
bylaw creates a preference for wireless projects that reduce the negative
visual impact of towers by "the use of camouflage, stealth design or other
innovative measures." Newport City Zoning Bylaw § 346.04. Our holding
also comports with most of the listed purposes of § 346. (FN2) To hold
otherwise would offend § 346.04's preference for stealth structures and the
listed purposes of the bylaw. The same reasoning applies to residents'
argument that the shed is an impermissible second structure pursuant to §
308, because § 346.05 more specifically regulates this exact point and
allows small, additional ground facilities less than twenty feet in height.
On these grounds, we have no problem upholding the environmental court's
decision, and, in light of this holding, residents' argument that the
project violates § 204, ("[a]ny use not permitted by this bylaw shall be
deemed prohibited"), is without merit.
¶ 7. The issue on cross-appeal is whether Verizon Wireless was
required to obtain site plan approval from the Newport Planning Commission
prior to receiving a permit under the small-scale facility guidelines. The
court held that, even though the project was small in scale and governed by
§ 346.05, Verizon Wireless was still required under § 606 to obtain site
plan approval by the Planning Commission. Section 606 provides that "[n]o
Zoning Permit shall be issued by the Administrative Officer for any use or
structure, except for one-family and two-family dwellings, until the
Planning Commission grants site plan approval." The environmental court
again harmonized the conflicting provisions and held that § 346.05's
requirement of a "final site and building plan" presupposes a site plan
approved by the Planning Commission through the § 606 process.
¶ 8. On appeal, Verizon Wireless contends that § 346.05 does not
require such site plan review. We agree with Verizon Wireless and reverse
on this point. When a project meets the definition of a small-scale
facility, § 346.05 allows approval of a permit upon provision of three
items to the Zoning Administrator: (1) a final site and building plan; (2)
a report from a qualified engineer showing that the structure is suitable
for the antennas and facility; and (3) a copy of the executed contract
between the applicant and the landowner. Section 346.06, on the other
hand, governs all non-small-scale telecommunications facilities and
contains more extensive requirements, including a specific instruction to
obtain site plan approval from the Planning Commission. Id. § 346.06 ("No
construction . . . of any . . . facility shall commence without site plan
approval first being obtained from the Planning Commission."). Where a
restriction is imposed in one part of a legislative scheme but not in
others, no such restriction is intended in the remainder. In re 1650 Cases
of Seized Liquor 168 Vt. 314, 323-24, 721 A.2d 100, 106 (1998). Here, the
requirement that larger-scale facilities obtain Planning Commission site
plan approval is absent from the small-scale requirements, and the
qualifier that a small-scale facility must submit a "final" site and
building plan is not strong enough to override that absence. Further, as
it relates to small-scale telecommunications facilities, the specific
requirement of § 346.05 trumps the more general requirement of § 606.
Teachout, 142 Vt. at 73, 451 A.2d at 820-21. No site plan approval from
the Planning Commission is required for small-scale facilities.
Affirmed in part and reversed in part.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Karen R. Carroll, Superior Judge,
Specially Assigned
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. In their reply brief, residents for the first time argue that the
proposed project does not constitute a small-scale facility within the
meaning of § 346.05. We will not entertain such an argument for the first
time here. Canton v. Graniteville Fire Dist. No. 4, 171 Vt. 551, 552, 762 A.2d 808, 811 (2000).
FN2. The stated purposes of the bylaw include: preserving "the character
and appearance of the City of Newport while allowing adequate
telecommunications services to be developed;" protecting "the scenic,
historic, environmental and natural resources of the City of Newport;"
minimizing "tower and antenna proliferation by requiring the sharing of
existing telecommunications facilities, towers and sites where possible and
appropriate;" facilitating "the provision of telecommunications services to
the community;" and minimizing "the adverse visual effects of
telecommunications facilities and towers through careful design and siting
standards." Newport City Zoning Bylaw § 346.01(A)-(B), (D)-(F).
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