In re Stowe Club Highlands

IN_RE_STOWE_CLUB_HIGHLANDS.94-322; 164 Vt 272; 668 A.2d 1271

[Opinion Filed 22-Sep-1995]

[Motion for Reargument Denied 26-Oct-1995]

  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. 94-322


In re Stowe Club Highlands                        Supreme Court

                                                  On Appeal from
    v.                                            Lamoille Superior Court

                                                  February Term, 1995



Alan W. Cook, J.

Harold B. Stevens, Stowe, for appellant

Leighton c. Detora, pro se, Barre, appellee


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


       DOOLEY, J.  Stowe Club Highlands (SCH), successor in interest to
  Robinson Springs Corporation (RSC), and owner of a real estate development
  in Stowe,(FN1) appeals from a decision of the Lamoille Superior Court which
  denied a subdivision permit to develop twenty-two acres for a single-family
  house.  The superior court decision was reached in an appeal from the Stowe
  Planning Commission brought by an adjoining landowner within the
  development, Leighton Detora.(FN2)  SCH argues that the superior court erred
  in ruling that the proposed permit is 1) prohibited by the applicable
  setback requirement of the Stowe zoning ordinance, and 2) that the area in
  which the house would be developed has been irrevocably dedicated as open
  space. Although we agree that SCH's second argument is correct, we affirm
  the decision of the trial

 
  
  court based on the prohibition on constructing the house within the
  setback area.

       The area in issue is a small part of a larger development, originally
  proposed by Nolex, Inc. on a 235-acre parcel called the Stowe Club
  property.  Although the mix has changed over time, the development plan has
  included a hotel, single-family lots and townhouses.  The original proposal
  received conditional use approval from the Stowe zoning board and site-plan
  approval from the planning commission, as well as an Act 250 permit from
  the district environmental commission.  While owned by Stowe Club
  Associates, after purchase from Nolex, Inc., it received partial
  subdivision approval to enable sale of twenty single-family lots.  One of
  these lots was purchased by Leighton Detora from Chittenden Trust Company,
  which took the development from Stowe Club Associates.  The current
  controversy arose when RSC purchased the development property, excluding
  single-family lots which had already been sold, and started to pursue
  seriously new permits to complete the development.  These included
  subdivision permits from the planning commission, covering all of the
  property and uses, and a new conditional use permit from the zoning board
  to reflect the modifications in the proposal.

       The Stowe Club property lies within an agricultural and rural
  residential zoning district. The district normally allows residential
  developments only on large lots but authorizes, as a conditional use, a
  resort planned unit development (PUD), subject to specific conditions in
  the zoning ordinance.  The Stowe Club development has been treated as a PUD
  and received conditional use permits on that basis.

       This case involves only a small part of the development, a twenty-two
  acre meadow in the northeast corner of the Stowe Club property.  Detora's
  property abuts this meadow.  The meadow contains a barn, with a mobile home
  in it, which was in existence when the original permits were obtained by
  Nolex, Inc.  Although there was discussion of using the barn as a riding
  stable, it has apparently been unused at least since 1982 when the Nolex,
  Inc. development was originally proposed.  At its nearest point, the barn
  is approximately seventy-five feet from the boundary line with the
  northern neighbor.

  

       From the first permit, the meadow was to be dedicated to agricultural
  use, as well as to contain a septic field.  None of the conditions for the
  many Stowe permits states this explicitly although this intention is
  contained in the minutes of meetings and in findings.  It is stated
  explicitly in the Act 250 permit.  There is very little mention of the barn
  in any of the proceedings.

       The official "boundary plan" on which the subdivision permits are
  based shows a 200-foot "green belt" surrounding the Stowe Club development
  on the outer edges of the property, and this "green belt" goes around the
  eastern and northern portions of the meadow.  The barn lies within the
  green belt.

       This case arose when RSC proposed to subdivide out the meadow as a
  single-family lot and to build a house and stable in the footprint of the
  barn.  Detora objected, arguing that the meadow had been reserved as open
  space and a house could not be built on the barn site because it lies
  within a 200-foot non-waivable setback from the line with the northern
  neighbor.  The planning commission rejected these arguments and approved
  the subdivision, and this action was followed by conditional use approval
  by the zoning board of the lot as subdivided.(FN3)  On appeal, the superior
  court accepted both of Detora's arguments and reversed the grant of the
  subdivision permit.

       Our review of the issues raised by SCH is complicated by the way the
  case was approached by the superior court.  On appeal from a planning
  commission decision, the court must conduct a de novo trial.  See 24 V.S.A.
  §§ 4472(a), 4475.  This standard requires the court to approach the case as
  if it were the planning commission, without regard to what had been done
  before by the planning commission.  See Chioffi v. Winooski Zoning Bd., 151
  Vt. 9, 11, 556 A.2d 103, 104-05 (1989); In re Poole, 136 Vt. 242, 245, 388 A.2d 422, 424 (1978).

 

  In the present case, the court failed to evaluate the case according
  to this standard.  Although the court gave Detora a de novo trial on the
  issues, it addressed only the arguments that the subdivision permit was
  unlawful because of the prior dedication of the meadow land as open space
  and the setback requirements in the zoning ordinance.

       The effect of the superior court's approach is that it incompletely
  evaluated the case. Because it ruled that the planning commission could not
  lawfully grant the disputed permit, the error is harmless if we agree with
  the court's result.  If we conclude that the court erred, however, we must
  remand for the superior court to evaluate the permit application as if it
  were the planning commission.

                                    I.

       We begin by analyzing the superior court's holding that the meadow has
  been dedicated as open space.  The court based its holding on 1) a
  provision of the Stowe Zoning ordinance reserving certain land as "open
  space;"  and 2) a "boundary plan," recorded as part of the subdivision
  approval, which designates the meadow as an "agricultural easement."  We
  find that neither reason supports the court's holding.

       The court concluded that the meadow was reserved for public use,
  relying upon a section of the PUD provisions of the zoning ordinance which
  states:

         (2) Land which is not included in building lots, streets, rights-of-
         way, or utility easements, shall be reserved as open space for
         recreation, conservation, agriculture and the enhancement of the
         natural environment for living.

       Stowe Zoning Ordinance § 12.5(2).  In essence, the court ruled that
  the reservation for public use had become an implied condition of the
  subdivision permit.

       In the related context of zoning permit requirements, we recently
  addressed the issue of whether representations by a landowner, and findings
  of fact of a zoning board, represent implied permit conditions even though
  not expressed as explicit conditions of the zoning permit issued by the
  board.  Deciding that enforcement of implied conditions would "impose a
  difficult

  

  if not impossible burden on interested parties to determine applicable
  regulatory standards," we held that "[c]onditions that are not stated on
  the permit may not be imposed on the permittee." In re Kostenblatt, 161 Vt.
  292, 299, 640 A.2d 39, 44 (1994).

       Kostenblatt distinguished between discretionary permit conditions and
  minimum requirements for specific land uses within the district involved.  
  The former must be stated explicitly, but the latter are legal requirements
  with which the landowner must comply.  Thus, there is no requirement that
  the zoning board explicitly state that the landowner must comply with the
  law or detail all the applicable legal requirements.  Id. at 300, 640 A.2d 
  at 44.

       We see no reason for purposes of the Kostenblatt holding to
  distinguish between zoning and subdivision permits.  Indeed, part of the
  purpose of a planned unit development is to merge zoning and subdivision
  requirements.  See 24 V.S.A. § 4407(12) (modification of zoning regulations
  by planning commission may be permitted simultaneously with approval of
  subdivision plat);  cf. In re Robinson, 156 Vt. 199, 201, 591 A.2d 61, 62
  (1991) (reviewing compliance with zoning ordinance through appeal of
  subdivision permit).  We note, however, that the function of a subdivision
  permit is to approve "plats of land," 24 V.S.A. §§ 4401(b)(2), 4415, and
  such plats must be "duly filed or recorded in the office of the clerk of
  the municipality," Id. § 4416.  Thus, although we will not recognize
  implied permit conditions as subdivision permits, recorded plats
  necessarily become subdivision permit conditions.

       We do not believe designation of the meadow for public use existed as
  an enforceable permit condition.  None of the many permits granted by the
  zoning board or planning commission conditioned approval on the dedication
  of the meadow as open space.  The only plat filed was the boundary plan,
  which was intentionally incomplete to allow for the development of the
  single-family residential lots, the only subject of the partial subdivision
  approval.  The map divides large parcels of the overall development for the
  obvious purpose of leaving the specific description of their development to
  future proposals.  The general outline of these future development
  proposals had already been presented to the zoning board and planning
  commission

  

  for conditional use and subdivision approval.

       We also do not believe that the ordinance provision, set forth above,
  created a minimum legal requirement that was enforceable even without a
  specific permit condition.  The proposal submitted, and the plat approved,
  clearly left the use of most of the Stowe Club land unspecified because it
  would be subject to future proposals.  Under the trial court's theory, all
  of the remaining land, including that intended for placement of the hotel
  and the townhouses, became dedicated to public use as a matter of law. 
  This represents an unreasonable application of the zoning law.

       We are left, then, with the argument that the cryptic description of
  the meadow as an "agricultural easement" must be read as a condition that
  the land be dedicated to public use and that the barn be torn down with
  nothing to replace it.  We conclude that this argument reads far too much
  into a two-word description on a map unaccompanied by permit conditions and
  in an area not part of the partial development proposal submitted.

                                        II.

       The second ground for the trial court's action is that a 200 foot
  setback requirement applied to the overall Stowe Club development and this
  requirement could not be waived by the planning commission.  Because the
  proposed house was to be placed within the setback area, the court found
  that the setback requirement prohibited its construction.  It further
  concluded that the house was not allowed as the continuation of a lawful,
  nonconforming structure.

       On appeal, SCH argues that there was no 200 foot setback requirement,
  but instead a "green belt" requirement that could be waived.  This argument
  was not raised below; in fact, SCH constantly referred to the requirement
  as a "green belt or setback area."(FN4)  This was consistent with the
  understanding of the Stowe zoning administrator and the planning

  

  commission, which consistently called the 200 foot distance a setback. 
  See In re Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990) (court gives
  deference to interpretation of zoning ordinance by local administrative
  body).  In any event, the failure to raise the issue below precludes its
  consideration here.  See In re Kostenblatt, 161 Vt. at 301-02, 640 A.2d  at
  45.

       We have also examined the ordinance provisions on which the court
  relied to reach its conclusion that a 200 foot setback existed and was
  nonwaivable.  We conclude that the court properly construed those ordinance
  provisions.

       SCH's argued below that because the barn was a noncomplying structure,
  and not otherwise a nonconforming use, it could be replaced with a house
  and attached stable within its footprint.  Relying on the policy of phasing
  out nonconforming uses, including noncomplying structures, the superior
  court rejected this argument: "having found that the proposal by Robinson
  Springs seeks to substantially alter the building, in that the unused barn
  will be replaced with a new residential dwelling, and that such a use of
  the property is replacing one non-complying use with another."  On the
  other hand, Detora specifically argues here that the ordinance does not
  allow for the total replacement of one noncomplying structure with another.

       Although nonconforming uses and noncomplying structures are generally
  inconsistent with the purposes of land use planning and zoning, see 24
  V.S.A. § 4302(a) (purpose of Vermont Planning and Development Act is to
  "provide means and methods for the municipalities and regions of this state
  to plan for the prevention, minimization and future elimination of such
  land development problems as may presently exist"), the approach of the
  Legislature has been to authorize municipalities to "regulate and prohibit
  expansion and undue perpetuation of nonconforming uses," id. § 4408(b), but
  not to command any particular action.  The statute defines a noncomplying
  structure as a nonconforming use, but the definitions in the Stowe Zoning
  Ordinance carefully differentiate these concepts.  Under these definitions,
  a noncomplying building is not a nonconforming use.  Id. § 2(33), 2(34).

       We emphasize that the issue here involves a noncomplying structure,
  and not a

  

  nonconforming use, because the nonconformity is caused by a violation
  of setback requirements and not a land use impermissible in the zone
  involved.(FN5)  See id. § 4408(a)(2).  Thus, we must be mindful of the
  distinction between noncomplying structures and nonconforming uses, and
  carefully analyze the Stowe Ordinance to determine how it specifically
  treats and regulates noncomplying structures.      At best, however, we
  find the Stowe ordinance confusing with respect to noncomplying structures. 
  SCH relies on a portion of the ordinance, which provides:

          Any non-conforming building which was designed,
          arranged, intended for, or devoted to a non-conforming use may
          be reconstructed and structurally altered, and the non-conforming
          use therein changed, subject to the following regulations:

  Stowe Zoning Ordinance § 5.1.  Detora points to Section 5.2 of the
  ordinance, which deals with noncomplying structures as follows:

          A building which does not comply with the requirements of this
          Bylaw shall not be enlarged or substantially altered, unless such
          enlarged or altered portion complies with the regulations. . .

          . . .

          (2) Any expansion or alteration that does not comply with
          established setback requirements but does not compound the
          existing situation shall meet the requirements specified in Sections
          5.1(3)(A) and 5.1(3)(B) as they apply to the building.  In no case
          shall such an expansion or alteration cause the aggregate gross
          floor space of all such expansions and alterations to exceed 50%
          of the floor space contained in the noncomplying portion of the
          building at the time of the adoption of this bylaw subsection. . . .

  Id. § 5.2(2).

       We use familiar rules of construction in interpreting zoning
  ordinances.  We first

  

  construe words according to their plain and ordinary meaning, giving
  effect to the whole and every part of the ordinance.  In re Vermont Nat'l
  Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991).  If there is no plain
  meaning, we attempt to discern the intent from other sources without being
  limited by an "isolated sentence."  Williston Citizens for Responsible
  Growth v. Maple Tree Place Assocs., 156 Vt. 560, 563, 593 A.2d 469, 470
  (1991).  We uphold the trial court construction unless it is clearly
  erroneous, arbitrary or capricious.  In re Vermont Nat'l Bank, 157 Vt. at
  312, 597 A.2d  at 320.

       In this case, it is impossible to determine the intent of the drafters
  from the plain meaning of the words used, as applied to the situation
  before us.  The difficulty centers on whether the ordinance authorizes the
  replacement of a noncomplying structure, and if authorization exists, the
  conditions applicable to such a replacement.  SCH points to section 5.1 of
  the ordinance, which does authorize reconstruction but only for a building
  "designed, arranged, intended for, or devoted to a non-conforming use."  As
  discussed above, the barn was a conforming use.(FN6)

       Section 5.2 appears to be more on point, but that section is drafted
  as a prohibition and fails to mention reconstruction or replacement. 
  Contrary to Detora's argument, the logical result of the omission is that
  reconstruction or replacement is allowed, without regulation, while
  enlargement or substantial alteration are prohibited except under certain
  circumstances.  We could avoid this result by holding that substantial
  alteration includes total replacement,(FN7) but the

  
  
  last sentence of section 5.2(2) would appear to limit replacement to a
  building half the size of the original.  Neither of these results is
  rational.

       In discerning the intent behind the ordinance, we rely primarily on
  section 5.1, but for the opposite conclusion to that suggested by SCH. 
  This section contains the only language specifically authorizing
  reconstruction, but under circumstances not applicable here.  We infer that
  the drafters intended to prohibit reconstruction in any other circumstance,
  see City and County of Denver v. Board of Adjustment, 505 P.2d 44, 46
  (Colo. Ct. App. 1972) (explicit right to change nonconforming use does not
  give rise to an implied right to change nonconforming structure where
  ordinance clearly distinguishes between nonconforming use and nonconforming
  structure), and that section 5.2 applies only to expansion or alteration,
  which does not include reconstruction or replacement.  See Gannett Outdoor
  Co. v. City of Mesa, 768 P.2d 191, 196 (Ariz. Ct. App. 1989) (replacement
  of billboard with another one is not alteration under local zoning
  ordinance); Gagne v. Inhabitants of City of Lewiston, 281 A.2d 579, 582
  (Me. 1971) (ordinance that allows noncomplying structure to be enlarged or
  altered does not permit demolition of existing building and replacement
  with another); Angus v. Miller, 363 N.E.2d 1349, 1352 (Mass. 1977)
  (authorization to enlarge noncomplying structure does not include power to
  raze existing building and construct new one).  Thus, we conclude that SCH
  is not authorized to totally replace a building lying within the setback
  area.  This result is consistent with the State's policy against the "undue
  perpetuation of nonconforming uses."  24 V.S.A. § 4408(b); see Hinsdale v.
  Village of Essex Jct., 153 Vt. 618, 626, 572 A.2d 925, 929 (1990).  We
  affirm the trial court decision on this ground.

       Because this result may not totally end this controversy since it
  prohibits building the house and stable only in the setback area, we
  reiterate that we have ruled only on whether SCH could lawfully complete
  its development plans for the meadow.  In any future proceedings, the
  superior court must act as the planning commission and exercise its
  discretion on whether the requested subdivision is appropriate under the
  circumstances.

  

       Affirmed.

                                        For the Court:


                                        Associate Justice


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                                  Footnotes

FN1.  The case was litigated below by Robinson Springs Corporation,
  and Stowe Club Highlands was substituted in this Court.  To avoid
  confusion, we have referred to the litigant below as SCH.

FN2.  The Town of Stowe and another adjoining landowner were
  originally parties in the superior court, but they did not actively
  participate in that court and did not file briefs here.

FN3.  The conditional use permit was not appealed and is not before
  us. Because Detora used his applicable appeal routes, the case was properly
  before the superior court.  See Wright v. Presault, 131 Vt. 403, 407-08,
  306 A.2d 673, 677 (1973).

FN4.  SCH recognizes it has shifted position on appeal.  In its brief,
  it acknowledges that it stipulated that a 200 foot setback was applicable.

FN5.  The trial court described the issue as one of a nonconforming
  use, which is technically accurate under Vermont statute.  See 24 V.S.A. §
  4408(a)(1). There is no question that both the barn and the proposed house
  are authorized or conditionally authorized uses in the agricultural and
  rural residential district in which the land lies.  Therefore, they are
  authorized or conditionally authorized uses for the PUD within this zone,
  see Stowe Zoning Ordinance § 13.2(2), and there is no nonconforming use
  problem apart from the violation of the setback requirement.

FN6.  This is more than a technical drafting deficiency because the
  section goes on to establish various conditions under which the
  reconstructed or structurally altered building may be authorized.  All the
  conditions relate to the use of the structure in relation to the
  requirements of the ordinance.  If we apply the section, without regard to
  whether the use is nonconforming, the result is that reconstruction or
  structural alteration of a noncomplying structure is allowed with no
  regulation, while enlargement or substantial alteration is specifically
  regulated by section 5.2.  That result is irrational.

FN7.   Alteration is defined in the ordinance to include "exterior
  structural change."  In context, the definition might be broad enough to
  include replacement.  See Goodrich v. Selligman, 183 S.W.2d 625, 627 (Ky.
  1944) (structural alteration includes changing old building in such a way
  as to convert it to new structure); Mossman v. City of Columbus, 449 N.W.2d 214, 219 (Neb. 1989)(substitution of one mobile home for another is
  structural alteration). However, § 5.1 appears to separate out
  reconstruction from structural alteration.