Williston Citizens for Responsible Growth v. Maple Tree Place Associates

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
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                                No. 89-568


Williston Citizens for                       Supreme Court
Responsible Growth
                                             On Appeal from
     v.                                      Chittenden Superior Court

Maple Tree Place Associates                  March Term, 1991
and Town of Williston


Richard W. Norton, J.

Harvey D. Carter, Jr., Burlington, for plaintiff-appellant

Fred I. Parker and Alison J. Bell of Langrock Sperry Parker & Wool,
  Burlington, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   Williston Citizens for Responsible Growth ("CRG")
appeals from a superior court decision upholding the Town of Williston's
allocation of sewer capacity to a mall project that Maple Tree Place
Associates ("MTP") proposes to build at Tafts Corner, Williston.  We affirm.
     The issue on appeal is whether the sewer commissioners, in granting a
sewer allocation to MTP, acted in conformance with Williston's sewer
ordinance.  The sewer ordinance contains standards to be followed by the
commissioners in allocating sewer capacity.  The standards address both
allocation among the various zoning districts of Williston and allocation,
upon application, to individual users within each zone.  The standards
provide that allocation to projects such as that proposed by MTP are to be
considered in the following manner:
         2. Allocation Among Projects

         A. All proposals for subdivision and or land development
         must first progress through the Planning Board process
         and be given preliminary "conceptual" approval by that
         board prior to requesting future sewer allocation
         approval from the Board of Selectmen as Sewer
         Commissioners.  The Selectmen will then consider each
         project on an individual basis to assess the degree to
         which such project implements the goals and objectives
         of the Town Plan.

         B. In the event there is insufficient zone allocation to
         satisfy proposed projects within a zone, the Town
         recognizes that a "first come-first served" method of
         allocation among projects is not effective, in the
         goals, objectives, policies and recommendations of the
         Town Plan.  Therefore, the Town has decided that those
         projects which implement the Town Plan to the greatest
         degree will be given priority in sewer allocations.

     MTP received conceptual approval for its project from Williston's
planning commission on March 2, 1988.  At a public hearing on March 24,
1988, the sewer commissioners gave final consideration to MTP's requested
sewer allocation.  At the hearing, CRG's counsel argued that Section 2.A of
the allocation standards required the sewer commissioners to measure MTP's
proposed project against the goals and objectives of the Town Plan.  The
sewer commissioners declined to do so.  Relying on previously solicited
opinions from legal counsel, the sewer commissioners determined that, under
the ordinance, there was no basis to deny an allocation request unless there
was more than one allocation request pending and there was insufficient
capacity in the zone to satisfy all pending requests.  Because there were no
other requests pending and there was sufficient capacity in the zone, the
sewer commissioners granted MTP's allocation request.
     CRG appealed the sewer commissioners' decision to superior court and
moved for summary judgment.  CRG argued that the commissioners' failure to
measure the proposed project against the goals and objectives of the Town
Plan violated the sewer ordinance, rendering the sewer allocation to MTP
void.  MTP responded with its own motion for summary judgment, arguing that
the sewer commissioners had acted in conformance with the ordinance.  The
superior court granted MTP's summary judgment motion, and CRG appealed to
this Court.
     Whether the sewer commissioners acted in conformance with the sewer
ordinance hinges on interpretation of Section 2 of the allocation standards.
CRG contends that, by its plain meaning, Section 2.A imposes a duty on the
sewer commissioners to measure each subdivision proposal against the goals
and objectives of the Town Plan, whether or not competing projects and
insufficient zone allocation exist.  According to CRG, Section 2.A clearly
provides that, if an individual subdivision proposal does not carry out the
Plan's goals and objectives, its sewer allocation request is to be denied.
We disagree.
     First, Section 2.A does not have a plain meaning that is controlling.
See Burlington Electric Dept. v. Vermont Dept. of Taxes, ___ Vt. ___, ___,
576 A.2d 450, 452 (1990) ("Where the meaning of a statute is plain on its
face, this Court will enforce the statute according to its terms for 'there
is no need for construction; the legislative intent is to be ascertained
from the act itself.'") (quoting Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983)).  Although Section 2.A provides for an assessment of the
"degree to which" each project implements the Town Plan, it makes no express
provision for what is to be done with this assessment of degree.  Further,
an assessment that a project implements the Town Plan to a certain degree
raises no inference as to what to do with the project's allocation request.
Such an assessment, without more, tells the sewer commissioners nothing.
This omission renders CRG's plain meaning argument untenable.
     Because there is no plain meaning, this Court must necessarily engage
in construction of the ordinance to discern the intent behind Section 2.A's
assessment.  Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985).
This inquiry is not limited to consideration of an isolated sentence within
Section 2.A itself; rather we must look to the whole of the ordinance.
State v. Jarvis, 146 Vt. 636, 637-38, 509 A.2d 1005, 1006 (1986).  As shown
above, Section 2.A makes no provision, either expressly or inferentially,
for what the sewer commissioners are to do with their assessment of the
degree to which a project implements the Town Plan. In contrast, Section 2.B
expressly provides for what is to be done with the assessment.  If there are
competing projects and insufficient zone allocation to satisfy them all,
Section 2.B provides that "those projects which implement the Town Plan to
the greatest degree will be given priority in sewer allocations."  Only
Section 2.B effectively addresses what is to be done with Section 2.A's
assessment of degree.  An assessment that a project implements the Town Plan
to a certain degree has no meaning until it is compared with equivalent
assessments of competing projects.  Accordingly, the proper interpretation
of the ordinance is that an assessment is required only when there are
competing projects and insufficient zone allocation.
     We note two additional factors that cut against reading Section 2 to
require an assessment of each project even when there are no competing
projects and sufficient zone allocation exists.  First, Section 2 is not
entitled "Allocation to a Project."  Rather, it is entitled "Allocation
Among Projects."  "Among" implies comparison, which supports interpreting
the ordinance as requiring an assessment only when there are competing
projects and insufficient zone allocation.
     Second, interpreting Section 2.A as requiring an assessment of the
degree to which each project implements the goals and objectives of the Town
Plan would have the sewer commissioners directly duplicating the efforts of
Williston's planning commission.  After receiving conceptual approval from
the planning commission, a proposed subdivision such as MTP's project must
then apply for preliminary subdivision approval from the planning
commission.  The first standard against which the planning commission must
measure a subdivision proposal is, in part, whether "the proposed develop-
ment is in compliance with the Williston Comprehensive Plan."  MTP submitted
its application for preliminary subdivision approval in May of 1988.  Six-
teen public hearings were held on the application.  On December 5, 1989,
the planning commission concluded, in part, that MTP's project, if con-
structed, would violate goals 1, 3, and 10 of the Town Plan.  In the absence
of a plain indication to the contrary, we decline to conclude that the Town
intended to have its sewer commissioners duplicate the inquiry that its
planning commission is obligated to give each proposed subdivision.
     Affirmed.

                                        FOR THE COURT:



                                        __________________________________
                                        Chief Justice