Houston v. Town of Waitsfield

HOUSTON_V_TOWN_OF_WAITSFIELD.93-154; 162 Vt. 476; 648 A.2d 864


Filed:  26-Aug-1994

 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.


                                   No. 93-154


 Virginia Houston                             Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Town of Waitsfield, et al.                   March Term, 1994


 Stephen B. Martin, J.

 Stephen R. Crampton and Lucy T. Brown of Gravel and Shea, Burlington, and
   David P. Brauer of Brauer & Brauer, Medfield, Massachusetts, for
   plaintiff-appellant

 Steven F. Stitzel and Dianne L. Kenney of Stitzel & Page, P.C., Burlington,
   for defendant-appellee

 Jeffrey L. Amestoy, Attorney General, and Eileen I. Elliott, Assistant
   Attorney General, Montpelier, for amicus curiae


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


      DOOLEY, J.   Plaintiff Virginia Houston appeals from a decision of the
 Washington Superior Court affirming a denial of her zoning application by
 the Town of Waitsfield Zoning Board of Adjustment (ZBA).(FN1)  We affirm.
      Plaintiff (landowner) owns a 1,631-acre parcel in the Town of
 Waitsfield and applied for a permit to extract water from an aquifer lying

 

 under her property for transportation and eventual sale as bottled water.
 Her property is zoned agricultural-residential.  Under the Waitsfield zoning
 ordinance, the agricultural-residential zone allows eight uses by right,(FN2)
 including agricultural uses, and a similar number of conditional uses.(FN3)
 Agricultural uses are further defined as:  "The growing or harvesting of
 crops; raising of livestock; operation of orchards, including maple sugar
 orchards; the sale of farm produce on the premises where raised; processing
 or storage of products raised on the property."  Town of Waitsfield Zoning
 Ordinance, art. V, { 13.  The ordinance also contains the following
 restriction:  "[A]ny use not expressly permitted in any district is
 prohibited in that district."  Id. at art. II, { 4.
      On the recommendation of the town zoning administrator, landowner
 applied to the Town for a conditional use permit for her planned extraction
 and storage of water.(FN4)  In October 1991, landowner was given preliminary

 

 site plan approval by the Town Planning Commission based on its assessment
 that her activities fit within the conditional use category of "small-scale
 processing of raw agriculture or forestry products."  Shortly thereafter,
 the Waitsfield town attorney submitted an opinion letter to the ZBA in
 which he opined that landowner's proposed use was an agricultural one
 permitted as of right in her district.  As a result of the conflict of
 opinions, the ZBA considered landowner's application under both permitted
 and conditional use standards during its January 1992 public hearing on the
 proposed project.  After discussion, the ZBA rejected both theories, and
 denied landowner's application.
      On appeal to the superior court, the parties agreed to limit the issue
 for decision solely to whether plaintiff's proposed use was an agricultural
 one.  The Superior Court agreed with the ZBA's conclusion that the
 extraction of water was not a permitted agricultural use, and therefore,
 granted summary judgment in favor of the Town.  The court did not address
 whether the landowner's proposal fit within the conditional use category.
      Before this Court, plaintiff focuses her arguments on bringing the
 extraction of natural spring water within the definition of an agricultural
 use.  For example, plaintiff argues that the extraction of water is similar
 to a traditional agricultural use because water is a renewable food product
 that is cultivated and harvested like any other agricultural product, and
 water is "raised" quite literally from the ground as one would raise any
 other crop.
      Although plaintiff makes a number of creative arguments, we do not find
 them persuasive.  Zoning ordinances are construed according to the general
 rules of statutory construction.  See Blundon v. Town of Stamford, 154 Vt.

 

 227, 229, 576 A.2d 437, 439 (1990).  Therefore, if the meaning of the
 ordinance is plain, it will be enforced according to its terms, without need
 to resort to subordinate rules of construction.  See In re Vermont Nat'l
 Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991).  Our standard of review of
 the trial court construction is whether it is clearly erroneous, arbitrary
 or capricious.  See id.
      We cannot conclude that the bottling of natural spring water falls
 within the plain meaning of the zoning provision allowing an "agricultural"
 use.  The ordinance definition of "agriculture" is traditional and does not
 specifically include water as an agricultural product.  Although the term
 "agricultural" is given a broader meaning than "farming," see Jackson v.
 Building Inspector of Brockton, 221 N.E.2d 736, 738 (Mass. 1966), its
 breadth is not so great as to encompass the capture of natural spring
 waters.  We can find no authority to support the broader definition
 plaintiff seeks.  See Annotation, Construction and Application of Terms
 "Agricultural," "Farm," "Farming," or the Like, in Zoning Regulations, 97
 A.L.R.2d 702, 706 (1964) (discussing cases defining agriculture, none of
 which include water harvesting); 3 P. Rohan, Zoning and Land Use Controls {
 19.04 (1994) (same).
      In his amicus brief, the Attorney General has provided us with an
 exhaustive description of the various Vermont statutes that use, and often
 define, the term "agriculture."  No use of the term is broad enough to
 encompass plaintiff's activities.  See, e.g., 10 V.S.A. { 331(3)
 ("'Agricultural products' means crops, livestock, forest products and other
 farm commodities produced as a result of farming activities."); id. {
 331(8) ("'Farming' shall mean:  the cultivation of land or other uses of

 

 land for the production of food, fiber, horticultural, orchard, maple syrup,
 Christmas trees or forest crops; the raising of livestock, poultry, equines,
 fish or bees . . . the storage, preparation, retail sale, and
 transportation of agricultural commodities accessory to the cultivation or
 use of such land.").
      In response, plaintiff points out that the Legislature has enacted a
 special statute providing that the quality of Vermont spring water may now
 be certified by the Department of Agriculture.  See 6 V.S.A. { 2964a.  This
 statute undercuts plaintiff's argument, rather than aiding it, because the
 Legislature opted for a special recognition scheme rather than including
 spring water in the preexisting seal of quality program for "agricultural
 products."  See 6 V.S.A. { 2964.  The record indicates that the special
 treatment occurred because the Legislature did not believe water was an
 agricultural product.(FN5)  Cf. Muzzy v. Chevrolet Div., Gen. Motors Corp., 153
 Vt. 179, 188-89, 571 A.2d 609, 615 (1989) (legislative consideration of
 statutory amendment shows that existing law differs from proposed changes).
      Plaintiff's proposed use comes closest to the Town's subdefinition of
 agriculture as "processing or storage of products raised on the property."
 Landowner proposes to transport, however, not process, natural spring water,
 which is not a product "raised on the property," but rather a subsurface
 good extracted from the property much as one would mine or quarry any other
 subsurface mineral, as the Town and ZBA have suggested.  We do not view the
 word "raised" as meaning "elevated."  In an agricultural context, it clearly

 

 means "grown."  See Random House Dictionary of English Language, 1596 (2d
 ed. unabridged 1987).
      Nor can we categorize plaintiff's project by the surface resource
 preservation and farming activities that accompany it.  These are secondary
 or subordinate activities, defined in the zoning ordinance as "accessory"
 uses, designed to promote the primary use of withdrawing and selling water.
 They cannot make the primary activity a permitted use.
      Nor is plaintiff's position substantially aided by the provisions of
 the town plan that are consistent with her proposed activity.  The town plan
 is generally stated in "broad, general terms" and is "abstract and
 advisory."  Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225, 401 A.2d 906, 910 (1979).  The zoning ordinance is the specific regulatory scheme
 that controls whether the landowner may obtain a permit for land use
 activity.  The ordinance may be, and generally is, narrower than the plan
 and may not authorize all activities that are consistent with the plan.
 See Smith v. Town of St. Johnsbury, 150 Vt. 351, 361, 554 A.2d 233, 240
 (1988).
      In this case, landowner proposes to create a surface environment that
 is entirely consistent with the plan's emphasis on preserving open space and
 scenic resources because this environment is necessary to protect and
 enhance the aquifer she will tap.  The Town is entitled to consider the
 trade-offs that result from the various methods of implementing the plan's
 goals and objectives by enacting zoning ordinances.  It may decide that the
 consequences of subsurface activities, and the sale of a subsurface
 resource, outweigh the benefits of the surface activities, and not allow the
 type of use landowner proposes.

 

      Plaintiff also challenges the zoning ordinance on the theory that it
 has resulted in a taking of her property, i.e., the aquifer beneath her
 land, without compensation in violation of Chapter I, Article 2 of the
 Vermont Constitution.  In addition, plaintiff argues that the ordinance is
 "clearly unreasonable, irrational, arbitrary, or discriminatory,"  In re
 White, 155 Vt. 612, 617, 587 A.2d 928, 931 (1991), because it allows similar
 uses, either as permitted or conditional uses, but fails to allow extraction
 and sale of water, probably because this land use was not anticipated.  We
 decline to consider these arguments because they were not raised below.  See
 In re Kostenblatt, ___ Vt. ___, ___, 640 A.2d 39, 45 (1994).  Moreover, the
 takings argument is not ripe because plaintiff has failed to seek a variance
 from the town and has made no record on how the zoning decision has limited
 the use of her property.  See Hinsdale v. Village of Essex Junction, 153 Vt.
 618, 627-28, 572 A.2d 925, 930 (1990).
      Affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice


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                          Footnotes


FN1.      Following the appeal to the superior court, Robyn Cook-Hubner
 intervened in the proceedings pursuant to 24 V.S.A. { 4464 as an occupier of
 property adjacent to landowner's.  Cook-Hubner has not submitted a brief in
 this appeal.  Therefore, the parties on appeal are Virginia Houston and the
 Town of Waitsfield, with the State of Vermont submitting a brief as amicus
 curiae.


FN2.      Uses permitted as of right are: (1) one or two family dwelling
 unit; (2) agricultural and forestry uses; (3) wildlife refuge; (4)
 cemetery; (5) accessory use; (6) home occupation; (7) multi-family or
 attached dwelling units in planned unit developments only; and (8) livestock
 exhibition, training, boarding and student instruction.  Town of Waitsfield
 Zoning Ordinance, art. III, { 3 B.


FN3.      Conditional uses, which require approval by the Zoning Board of
 Adjustment, are:  (1) public or private outdoor recreation facility; (2)
 cultural facility; (3) hotel maximum of [eight] guests; (4) quarry, sand,
 soil, or gravel pit; (5) lodge [of specific design]; (6) warehouse [of
 specified structure]; (7) home occupation in an accessory structure; and (8)
 small-scale processing of raw agriculture or forestry products.  Town of
 Waitsfield Zoning Ordinance, art. III, { 3 C.


FN4.      Landowner originally planned to build a 50,000-gallon storage tank
 to hold extracted water for transportation.  She later abandoned this plan,
 proposing instead to pump water directly from the aquifer into 6500-gallon
 trucks for transportation.


FN5.    This history was before the ZBA in a letter from a State
 Representative who served on the House Agriculture Committee when the
 proposal came before it.