In re VT National Bank

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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
that corrections may be made before this opinion goes to press.

                                No. 90-010

In re Vermont National Bank                  Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court

                                             March Term, 1991

Richard W. Norton, J.

Susan Gilfillan and Linda R. LeRoy of McNeil & Murray, Burlington, for

Richard A. Spokes of Spokes, Foley & Peterson, Burlington, for appellee

Harvey D. Carter, Jr., Burlington, for amicus curiae Preservation Trust
  of Vermont

Jeffrey L. Amestoy, Attorney General, and William E. Griffin, Chief
  Assistant Attorney General, Montpelier, for amicus curiae Division of
  Historic Preservation

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

     DOOLEY, J.   The City of Burlington appeals from an opinion and order
of the Chittenden Superior Court awarding a certificate of appropriateness
to the Vermont National Bank to modify the facade of its bank building to
cover the glass curtain wall with bricks.  The City argues that the trial
court misconstrued the relevant section of the zoning ordinance and refused
to consider critical facts that had developed since the project was rejected
by the Burlington Planning Commission.  We affirm.
     The bank building is located at 150 Bank Street, within the central
business district, and, therefore, within a design control district.  In a
design control district, structures may not be "substantially altered, or
restored" without approval by the planning commission.  Burlington Zoning
Ordinance { 18.  In reaching its decision, the planning commission must
consult with a special design review board.  Id. { 18(A)(1)(b).  A number of
general design criteria apply in any design control district.  The
criterion that is central to this dispute reads:
         (i) Heritage.  With respect to Burlington's heritage,
         the removal or disruption of historic, traditional or
         significant uses, structures or architectural elements
         shall be minimized insofar as practicable, whether
         these exist on the site or on adjacent properties.

Id. { 18(D)(1)(i).
     The ordinance also subjects to design review an area called the
historic buildings district.  This district covers specified areas of the
City as well as sixty-five specified buildings.  See id. { 18(D)(3)(g).  In
this district, the commission must consider specific design review criteria
         (a) The historic and/or architectural value and
         significance of the structure and its relationship to
         the historic and/or architectural value of the
         surrounding area.
         (b) The relationship of the exterior architectural
         features of the structure to the rest of the structure
         and to the surrounding area.

Id. {{ 18(D)(3)(a),(b).  The bank building is not within the historic
buildings district, both because it is not in any of the areas covered by
the district and because it is not one of the separately-designated
     The project first went for design review to the Burlington Planning
Commission, which withheld approval because the "structure is an
historically significant building" and the modification "removes all
significant architectural elements" of the structure.  The Bank appealed to
the Chittenden Superior Court.
     The court found that Burlington architects Freeman, French and Freeman
designed the bank building in 1958.  It is an example of the "International
Style."  Its dominant feature is its front facade which is a one-quarter
inch glass curtain wall composed of green and clear panels. The single-pane
glass has minimal insulating capacity and has made it difficult to heat and
cool the building.  The panels leak and are difficult and expensive to
repair.  Attempts to alleviate the heating and cooling problems without
changing the facade have proved unsatisfactory.  In addition, the Bank
maintains the facade is "cold, outdated and uninviting."  The brick facade
was chosen as the most suitable solution to the problems.
     The building is in a transitional neighborhood, situated between a
department store and a McDonald's restaurant.  It is across the street from
a newer bank building with a brick facade.  The surrounding buildings do not
share the architectural style of the bank building.
     The City's first argument involves the court's consideration of
evidence that the building was listed on the Vermont Register of Historic
Places after the City denied the Bank a permit.  Although the court
admitted the registration evidence, it concluded:
           The building has only been in existence since 1958,
         and the court finds that it has not achieved local
         renown, and in fact that the opposite is true. . . .
         [N]either federal, state, nor local preservation
         authorities deemed the building to be architecturally
         significant until after the Bank filed an appeal of the
         denial of the Certificate of Appropriateness.  The court
         is at a loss to understand why the same building which
         was not registered when the City was surveyed several
         years ago has suddenly been deemed worthy of such
         status.  The court finds that 150 Bank Street has little
         or no significance to the traditional heritage of the
         City, and so it can be redesigned without endangering
         the preservation of the history of Burlington.

The City argues that the court improperly gave the Bank vested rights in the
facts present when the City reviewed the project.  Thus, according to the
City, the court erroneously refused to consider the later registration on
the Vermont Register of Historic Places.  The City also argues generally
that the court gave inadequate consideration to the registration.
     We must first emphasize that the City's arguments go to evidentiary
weight.  The evidence of the registration was admitted over the objection of
the Bank.  Normally, the weight to be assigned to evidence lies within the
discretion of the trial court.  See In re Duncan, ___ Vt. ___, ___, 584 A.2d 1140, 1145 (1990) (findings, and conclusions based on the findings, upheld
unless clearly erroneous).
     The evidence in issue is the listing on the state registry of historic
sites.  The Vermont Advisory Council on Historic Preservation lists sites on
the registry, consistent with state and federal standards.  22 V.S.A. {{
723(2), 742(a)(2).  A property found to be "historic property" is eligible
for listing.  22 V.S.A. { 701(6).  A historic property is one defined as a
"building, structure, object, district, area  or site that is significant in
the history, architecture, archeology or culture of this state . . . [or]
its communities . . . ."  Id.  The listing has no legal effect on local
permitting, unless the local ordinance gives it some effect.
     We agree with the City that a refusal to admit the evidence of listing
on the registry would have been error.  The superior court determines de
novo appeals from actions of a local planning commission.  24 V.S.A. {
4472(a) (zoning board appeals de novo), { 4475 (planning commission appeals
are "in the same manner" as zoning board appeals).  As a result, the record
of the planning commission hearing may be admitted as evidence, but the
superior court is not restricted to that record.  Chioffi v. Winooski
Zoning Board, 151 Vt. 9, 11, 556 A.2d 103, 105 (1989).  In some
circumstances, the vested rights doctrine entitles the property owner to
review under the law applicable when the owner properly applies for the
permit, irrespective of later changes in the law.  See In re Ross, 151 Vt.
54, 56-57, 557 A.2d 490, 491-92 (1989).  The doctrine does not apply to fact
and evidence questions.  There was no change in the applicable law here.
The occurrence of the registry listing after the original permit request
does not make it inadmissible or irrelevant in the superior court
     There is no indication, however, that the court concluded that the
vested rights doctrine applied to the registry listing or that it failed to
conduct a de novo review of the permit issues considering all relevant
evidence.  The court admitted the listing evidence despite the Bank's
objection that it had a vested right to consideration based on the facts
before the planning commission.  The court acted within its discretion in
deciding that the way in which the listing occurred, and its timing,
affected the weight to be assigned to it.  Although the City listed
buildings of historic value in its historic buildings district and the
Advisory Council on Historic Preservation had inventoried Burlington
buildings, neither had identified the bank building as worthy of special
protection.  The building had not achieved any renown prior to this
controversy.  The registry listing occurred without notice to the Bank and
without an opportunity for the Bank to present contravening evidence it
later presented in court.  Consideration of the building was evidently added
as an item of new business by a Council member.  The court could be
skeptical about how the listing came about and consider that skepticism in
assigning weight to the listing.
     Other courts have emphasized the importance of careful survey work to
develop a list of buildings worthy of protection from demolition or
modification, with notice to the owner, prior to any development proposal.
See Maher v. City of New Orleans, 516 F.2d 1051, 1063 (5th Cir. 1975).   We
note that our statute now requires notice to the owner and the local
municipality before the Council lists a building on the state registry.  22
V.S.A. { 723(a)(11).  These procedures make the process more fair and
predictable and dispel suspicions that a party might raise historic
preservation issues at the eleventh hour as an expedient to thwart an
unwanted development.
     In any event, the listing represented only the informed view of an
influential group, reached under standards similar but not identical to
those of the City ordinance, and not binding on the court.  The court was
entitled to give this view such weight as it determined was appropriate.
     The second issue the City raised involves the trial court's
construction of the relevant provision of the zoning ordinance.  The Court
responded to the Bank's attack on the "heritage" criterion of the general
design review standards as unconstitutionally vague by construing the
language as follows:
         The American Heritage Dictionary (Second College Edition
         1982, p. 607) defines "heritage" in relevant part as
         "something passed down from preceding generations;
           Accordingly, the court construes the term "heritage"
         as used in { 18(D)(1)(i) in conjunction with the word
         "Burlington" to mean that the Section is concerned with
         preserving architecture which is traditional and
         meaningful to the City of Burlington, thus giving
         adequate notice to applicants of what the criterion
         means and that it will include an inquiry as to whether
         the structure in question is tied to the history and
         tradition of Burlington.  Construed in this narrowed
         fashion, the court finds that the Section is not
         unconstitutionally void for vagueness.

The court found that the building "has little or no significance to the
traditional heritage of the City . . . ."  The City argues that the
construction of the ordinance is erroneous because, by its terms, the
ordinance extends protection to "significant ... architectural elements"
whether or not they are historic or traditional.
     In construing a zoning ordinance, we use the same rules as in the
construction of a statute.  See Blundon v. Town of Stamford, 154 Vt. 227,
229, 576 A.2d 437, ___ (1990).  We construe words according to their plain
and ordinary meaning.  See Slocum v. Dep't of Social Welfare, 154 Vt. 474,
478, 580 A.2d 951, 954 (1990).  We consider the whole of the ordinance and
try to give effect to every part.  Id. at 481, 580 A.2d  at 956.  In this
process, we consider the title to the sections of the ordinance.  See Conn
v. Town of Brattleboro, 120 Vt. 315, 320, 140 A.2d 6, 9 (1958); United
States v. Bushey, 617 F. Supp. 292, 296 (D. Vt. 1985).  Overall, the
standard of review of the trial court decision is whether it is "clearly
erroneous, arbitrary, or capricious."  See Route 4 Assoc. v. Town of
Sherburne Planning Comm'n, 154 Vt. 461, 462, 578 A.2d 112, 113 (1990).
     In this case, the trial court adopted a construction of the ordinance
provision that relied heavily on the use of the term "Heritage" in the title
and the dictionary definition of the term.  The use of the dictionary is an
accepted way to arrive at the meaning of the language.  See id. at 464, 578 A.2d  at 114.  Although one could interpret { 18(l)(1)(i) as protecting
architecture with no historic or traditional value, the title, "[h]eritage,"
and the more precise distinction between historical and architectural value
in later parts of the ordinance belie that construction.  See Burlington
Zoning Ordinance { 18(D)(3)(a).  The City relies heavily on the use of the
term "significant," but that term is vague and takes on its meaning from its
context.  There is no indication of a consistent interpretation of the
provision by the local officials who administer it.  Cf. In re Duncan, ___
Vt. at ___, 584 A.2d  at 1144 (interpretation of zoning staff and board
accepted absent compelling indication of error).
     We conclude that the trial court's construction of the ordinance is
reasonable and its decision is not clearly erroneous.

                                        FOR THE COURT:

                                        Associate Justice