Badger v. Town of Ferrisburgh

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Badger v. Town of Ferrisburgh (96-411); 168 Vt. 37; 712 A.2d 911

[Filed 8-May-1998]

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. 96-411

Todd and Nina Badger Supreme Court

On Appeal from
v. Environmental Court

Town of Ferrisburgh December Term, 1997

Merideth Wright, J.

Karl W. Neuse of Neuse, Smith, Roper & Venman, P.C., Middlebury, for
Plaintiffs-Appellants.

James F. Carroll and Susan P. Ritter of Powers, English & Carroll,
Ltd., Middlebury, for Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.

DOOLEY, J. Todd and Nina Badger (property owners) appeal an
Environmental Court decision affirming the Town of Ferrisburgh's decision
to deny them a zoning permit for a three-unit dwelling. The issue on
appeal is whether § 512 of the Town's zoning ordinance governing
discontinuances of preexisting nonconforming uses requires, as a
prerequisite to discontinuance, an intent to abandon. We hold that intent
to abandon is not required by the ordinance, and affirm the Environmental
Court's grant of summary judgment in favor of the Town.

The Environmental Court traced the history of the building at issue in
this appeal to 1963 when it was purchased as a two-family residential
structure by the Burnets. Thereafter, the Burnets added a small apartment,
making the building a three-unit dwelling. At that time, the town zoning
ordinance allowed multi-family dwellings in the district in which the
building is located.

In 1977, the building was conveyed to John and Ellen Laberge, who
converted it into a four-family dwelling, again in compliance with the
zoning ordinance. In 1980, the Town

adopted a new zoning ordinance allowing only one and two-family dwellings
in rural residential districts as "By Right Uses." The building is located
in such a district. After 1980, the ordinance prohibited the use of any
nonconforming multi-family dwellings except through an application for a
Planned Residential Development (now § 528 of the current zoning
ordinance). The new ordinance specifically protects preexisting
nonconforming uses. As amended in 1988, § 512 of the zoning ordinance
allows indefinite continuation of nonconforming uses provided the use has
not been discontinued for one year.

In 1985, the Laberges conveyed the property to Ira Farnsworth, who
subsequently conveyed the property to Eppe and Judith Bos in 1988. Shortly
thereafter, the Boses found themselves in financial difficulty, and in 1989
foreclosure proceedings were initiated against them. In 1991, Associates
National Mortgage Corporation (ANMC) became the record title owner of the
property as a result of the foreclosure. In order to receive payment on
its loan guarantee, ANMC turned the property over to the United States
Department of Housing and Urban Development (HUD).

HUD required all tenants to leave the building, and it became vacant
in October 1992. HUD auctioned the property on May 25, 1994 to the current
property owners, who planned to use it as a three-family unit. By the time
property owners obtained title to the building, it had been vacant for
twenty-two months.

When property owners converted the building from four units to three
units without seeking Town approval, the town zoning officer issued a
notice of violation for "Land development without a permit; specifically,
reconstruction of a house into three apartments." The property owners
unsuccessfully appealed to the zoning board of adjustment. The board held
that the preexisting, nonconforming-use status of the building had lapsed
because the use had been discontinued for twenty-two months.

The property owners appealed to the Environmental Court, and both
parties moved for summary judgment. Rejecting property owners' argument
that § 512 of the zoning ordinance

requires an intent to abandon before an owner loses nonconforming use
status by discontinuance, the court held that property owners had to comply
with the current zoning ordinance, which limits the number of units to two.
This appeal followed.

The appeal centers on the meaning of § 512(2) of the Town zoning
ordinance, which provides:

[A nonconforming use s]hall not be re-established if such use has
been discontinued for a period of at least one year or has been
changed to, or replaced by, a conforming use. Intent to resume a
nonconforming use shall not confer the right to do so. If a
nonconforming use is not re-established within one year, the future
use of the lot or structure shall be in conformance with the
provisions of these regulations.

The ordinance provision is authorized by 24 V.S.A. § 4408(b) which provides:

[M]unicipalities may regulate and prohibit expansion and undue
perpetuation of nonconforming uses. Specifically, a municipality
may control:
. . .

(3) Resumptions of nonconforming uses, by prohibiting
such resumption if such use is abandoned for any period of time
or if discontinued for six calendar months regardless of evidence
of intent to resume such use; . . . .

Property owners argue that ordinance § 512(2) must be construed to require
"discontinuance for a specified period of time supplemented by some overt
act or failure to have acted, indicating that the non-conforming use has
been abandoned." They claim that the facts in this case do not support
abandonment of the preexisting nonconforming use. The Town argues that
nonuse for twelve months, irrespective of abandonment or intent to abandon,
is sufficient under § 512(2) and that such nonuse occurred here.

We evaluate these positions under a limited standard of review. We
are bound by an Environmental Court construction of a zoning ordinance
unless it is clearly erroneous, arbitrary or capricious. See Houston v.
Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994). We also
evaluate them in light of a clear legislative purpose. The prime purpose
behind zoning is to bring about the orderly physical development of a
community by confining

particular uses to defined areas. See Vermont Brick and Block, Inc. v.
Village of Essex Junction, 135 Vt. 481, 483, 380 A.2d 67, 69 (1977). A
goal of zoning is to gradually eliminate nonconforming uses because they
are inconsistent with this purpose. See In re McCormick Management Co.,
149 Vt. 585, 589, 547 A.2d 1319, 1322 (1988). The public interest in the
regulation and gradual elimination of nonconforming uses is strong, see
Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626, 572 A.2d 925, 930
(1990), and zoning provisions allowing nonconforming uses should be
strictly construed. See Hartley v. City of Colorado Springs, 764 P.2d 1216, 1224 (Colo. 1988).

Further, we interpret a zoning ordinance under familiar rules of
statutory and ordinance construction. Words in statutes and ordinances
should be given their plain meaning. See In re Stowe Club Highlands, 164
Vt. 272, 279, 668 A.2d 1271, 1276 (1995) (when interpreting zoning
ordinances, court construes words according to their plain and ordinary
meaning, giving effect to whole and every part of ordinance). We adopt a
construction that implements the legislative purpose. See id. at 281, 668 A.2d at 1277.

We acknowledge that many courts have adopted property owners' position
and require an intent to abandon before the owner can lose preexisting
nonconforming use status. See Hartley, 764 P.2d at 1222-23. Where the
applicable statute or ordinance uses the term discontinuance, courts reach
this result by equating the term with abandonment and then holding that
abandonment requires intent to abandon. See, e.g., Smith v. Howard, 407 S.W.2d 139, 141 (Ky. 1966). On the other hand, some courts have held that
"nonuse of the property for the time specified in a discontinuance
ordinance terminates the nonconforming use regardless of intent to
abandon." See Hartley, 764 P.2d at 1223.

We need not decide how we would rule if the governing rule or statute
used only a durational discontinuance standard. The issue before us is
fundamentally one of statutory or ordinance construction. See McLay v.
Maryland Assemblies, Inc., 306 A.2d 524, 526 (Md. 1973) (effect of
cessation or discontinuance of nonconforming use must depend on language of

the ordinance; under facts and language of ordinance, nonconforming use
status was not extinguished); Canada's Tavern, Inc. v. Town of Glen Echo,
271 A.2d 664, 666 (Md. 1970) (under language of ordinance, cessation of use
for six months results in loss of nonconforming use status). For two
reasons, the applicable ordinance cannot be construed to require that a
property owner intend to abandon a nonconforming use before the right to
this status is lost.

First, the statutory authority for the ordinance, as set forth in 24
V.S.A. § 4408(b)(3), provides two alternatives from which a municipality
may choose in implementing its policy on resumption of nonconforming uses.
The municipality may prohibit resumption of a nonconforming use "if such
use is abandoned for any period of time." Alternatively, it can prohibit
resumption of such a use if it is "discontinued for six calendar months."
Plainly, under the wording chosen by the Legislature, discontinuance does
not mean abandonment. See In re Stowe Club Highlands, 164 Vt. at 279, 668 A.2d at 1276 (construe zoning provision to give effect to the whole and
every part). A municipality may phrase its policy in terms of
discontinuance only if the discontinuance has gone on for at least six
months.(FN1) In context, the word discontinuance can only mean cessation,
without the kind of intent associated with abandonment. The minimum
duration replaces the intent element.

The Town has chosen a policy based on discontinuance, rather than
abandonment. Thus, we cannot hold that the Town's ordinance acts to
extinguish a nonconforming use only if there has been abandonment.

Second, and to reinforce the statutory meaning, the statute and the
Town ordinance go on to state that "intent to resume" a nonconforming use
does not confer the right to resume. See

Canada's Tavern, Inc., 271 A.2d at 667 (ordinance language that
discontinuance operates irrespective of intent not to abandon or intent to
resume makes effect of provision "explicit"). Only by splitting hairs can
we distinguish between a rule based on intent to resume a nonconforming
use, and one based on intent to abandon a nonconforming use. These
concepts represent two sides of the same coin. By stating that the
durational discontinuance rule operates irrespective of the property
owners' intent to resume a nonconforming use, the Legislature and the Town
were also conveying that it operates irrespective of any intent to abandon
the use. As a leading zoning treatise notes:

A discontinuance provision which specifically states that it operates
to prevent and prohibit resumption of a nonconforming use after
a specified period of time has lapsed, regardless of any reservation
of an intent not to abandon or of an intent to reserve the right to
resume, removes the factor of intent to abandon; it operates even
where there was no intent to abandon or even where there was an
attempt not to abandon.

4 E. Ziegler, Rathkopf's The Law of Zoning and Planning, § 51B.02, at 9
(4th ed. 1996) (first emphasis added) (second emphasis in original). Other
courts considering similar language have reached the same conclusion. See
Fuller v. City of New Orleans, 311 So. 2d 466, 468 (La. Ct. App. 1975)
(although most statutes and ordinances require intent to abandon, similar
provision of city ordinance means that intention will not preserve
nonconforming use status); TOYS "R" US v. Silva, 676 N.E.2d 862, 868 (N.Y.
1996) (ordinance with similar language is clear and "deems the owner's
intent irrelevant"); Darcy v. Zoning Bd. of Appeals, 586 N.Y.S.2d 44, 45
(N.Y. App. Div. 1992).

Our conclusion is not undermined by two additional arguments that
property owners make. They argue that two of our decisions, Franklin
County v. City of St. Albans, 154 Vt. 327, 576 A.2d 135 (1990), and Town of
Castleton v. Fucci, 139 Vt. 598, 431 A.2d 486 (1981), require that we adopt
their position that intent to abandon is required before preexisting
nonconforming-use status is lost. Although both decisions involve the
retention of nonconforming use status, neither dealt with the issue before
us, but instead turned on whether

any cessation of use had occurred. In Franklin County, we rejected the
City's argument that cessation occurred because of a reduction of the level
of activities in a county jail, upholding the trial court's conclusion to
the contrary as not being unreasonable, irrational, arbitrary or
discriminatory. See 154 Vt. at 331, 576 A.2d at 137. In Fucci, we held
that five years of nonuse of a seasonal property constituted
discontinuance, with the caveat that "we are not holding that periods of
non-use, between recurring periods of seasonal use, would amount to
discontinuance or abandonment." 139 Vt. at 601, 431 A.2d at 488. Neither
the issues presented in those cases nor our analyses of those issues is
helpful in resolving this case.(FN2)

Finally, we address property owners' policy argument that they should
not lose nonconforming-use status based on involuntary inactivity beyond
their control. As we stated above, the Legislature has adopted the policy
of phasing out nonconforming uses, and the ordinance provision is
consistent with that policy. To implement the phase-out policy, the
Legislature and the Town can decide to establish a bright line that applies
irrespective of the intent of the owner's ability to use the property. In
general, a bright line aids subsequent purchasers, like property owners in
this case, because they can easily ascertain whether they can use the
property as a nonconforming use and, from their inquiry, determine whether
they want to purchase and at what price. See Chioffi v. City of Winooski,
165 Vt. 37, 42, 676 A.2d 786, 790 (1996) (where landowner purchased
property after period to restore nonconforming use had expired, landowner
had no investment-backed interest in restoring the use, and the use is no
longer reasonable); cf. Route 4 Assocs. v. Town of Sherburne, 154 Vt. 461,
464, 578 A.2d 112, 114 (1990) (defining term "contiguous" in zoning
ordinance narrowly to require physical touching of lots promotes "certainty
and reliability" of zoning regulation). The fact that property

owners failed to make that inquiry in this case does not make the use of an
objective standard unreasonable.

It is undisputed that use of property owners' building as a
three-family unit had ceased for over a year. Thus, the Environmental
Court properly held that this nonconforming use could not be resumed absent
Town approval.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. The statute provides that a municipality may control resumptions
of nonconforming uses if discontinued for six months. See 24 V.S.A. §
4408(b)(3). We construe the statute as a floor that restricts the
municipality from adopting a policy less favorable to the landowner, but
allows a more favorable policy. See In re White, 155 Vt. 612, 619-20, 587 A.2d 928, 932 (1990). Thus, the Town was free to establish a longer
discontinuance period before a landowner lost their right to resume a
nonconforming use.

FN2. If there is a determinative precedent, it is Town of Brighton v.
Griffin, 148 Vt. 264, 270, 532 A.2d 1292, 1295 (1987), in which we noted
that 24 V.S.A. § 4408(b)(3) has both abandonment and discontinuance
standards, and cited with approval cases that prohibited resumption of a
nonconforming use based on nonuse for a specified period. We do not
believe, however, that Griffin explicitly resolved the issue before us.

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Dissenting

No. 96-411

Todd and Nina Badger Supreme Court

On Appeal from
v. Environmental Court

Town of Ferrisburgh December Term, 1997

Merideth Wright, J.

Karl W. Neuse of Neuse, Smith, Roper & Venman, P.C., Middlebury, for
Plaintiffs-Appellants.

James F. Carroll and Susan P. Ritter of Powers, English & Carroll,
Ltd., Middlebury, for Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.

MORSE, J., dissenting. The central issue is whether an involuntary
discontinuance for the requisite statutory period of time, standing alone,
is sufficient to constitute a forfeiture of a nonconforming, permitted use.
In my opinion, it is not, and therefore I dissent.

I agree with the Court's conclusion that the applicable provision of
Vermont's enabling legislation, 24 V.S.A. § 4408(b)(3), makes a meaningful
distinction between the terms "discontinuance" and "abandonment." I also
agree that this distinction effects the evidentiary burdens required in
terminating a preexisting, nonconforming use. The Court, however, fails to
recognize and give effect to a further legal distinction: namely, the
difference between a voluntary discontinuance and one that results from
circumstances beyond the control of the property owner. See, e.g., McLay
v. Maryland Assemblies, Inc., 306 A.2d 524, 529 (Md. 1973) (explaining the
difference between a voluntary cessation of use and a cessation which is
involuntary).

In general, a common law claim of abandonment requires a showing of
both (1) an

intention to abandon, and (2) actual abandonment in the form of an overt
act, or failure to act, which carries the implication that the owner does
not retain any interest in the right to continue the nonconforming use.
See 1 K. Young, Anderson's American Law of Zoning, § 6.65, at 678 (4th ed.
1996). Ordinarily, the burden of proving the fact of abandonment is on the
party asserting it. See Smith v. Board of Zoning Appeals, 459 A.2d 1350,
1352 (Pa. Commw. Ct. 1983).

As an alternative, discontinuance of use for a specified amount of
time has been made a statutory equivalent of abandonment. Courts differ on
what evidentiary showing is required under discontinuance ordinances. Many
jurisdictions continue to require a showing of both intention to abandon
and actual abandonment under their discontinuance ordinances. See, e.g.,
Union Quarries, Inc. v. Board of County Comm'rs of Johnson County, 478 P.2d 181, 186 (Kan. 1970); 1 Young, supra, § 6.68, at 693 ("Many courts have
merged the terms `abandon' and `discontinue' and require proof of intent to
abandon although the ordinance speaks in terms of a use discontinued for a
specified period of time.").

We, today, adopt the polar opposite evidentiary view and hold that
nonuse for the applicable period of discontinuance satisfies both intention
to abandon as well as actual abandonment, and thereby obviates any
additional inquiry into the circumstances surrounding the discontinuance.
In other words, under this view, mere nonuse for the statutory period
creates a conclusive presumption of abandonment.

I believe the proper and more equitable view is reflected in those
jurisdictions that hold that discontinuance for the statutory period of
time creates a rebuttable, as opposed to a conclusive presumption of intent
to abandon. See Metzger v. Bensalem Township Zoning Hearing Bd., 645 A.2d 369, 370 (Pa. Commw. Ct. 1994). Under this rationale, it is incumbent upon
the party asserting abandonment to also prove actual abandonment. See id.
And, it is the evidentiary requirement of actual abandonment that
necessitates a distinction between cessations of use that are voluntary and
those that are involuntary. As explained by the Commonwealth

Court of Pennsylvania:

[W]here, as here, a one-year time limitation on the right to resume
the nonconforming use is imposed by the zoning ordinance, the
intention to surrender the right is presumed from the expiration of
the designated period. Although because of this presumption it
becomes unnecessary to prove the intent to abandon after cessation
of one year, it is still necessary to show the concurrent overt acts
or failure to act which indicate abandonment.

Marchese v. Norristown Borough Bd. of Zoning Appeals, 277 A.2d 176, 183
(Pa. Commw. Ct. 1971) (emphasis in original omitted) (footnote omitted).

Thus, there must be proof of discontinuance for a specified period of
time in conjunction with some overt act or failure to act, indicating that
the nonconforming use has been abandoned. See, e.g., Metzger, 645 A.2d at
370 (actual abandonment cannot be inferred from non-use alone); City of
Glendale v. Aldabbagh, 939 P.2d 418, 421 (Ariz. 1997) (holding that town
can enact an ordinance dispensing with the intent to abandon requirement
but may not terminate a use simply because the statutory period of
discontinuance passes; rather, some conduct within the control and
attributable to the property owner must be a cause of the condition
justifying the termination); City of Minot v. Fisher, 212 N.W.2d 837, 841
(N.D. 1973) (holding that a discontinuance statute presumed abandonment
after the designated time period except in situations where the cessation
of use was beyond the control of the property owner).

The implication of abandonment is negated when the discontinuance is
the result of circumstances beyond the control of the property owner. See,
4 E. Ziegler, Rathkopfs' The Law of Zoning and Planning, § 51B.02, at 23-24
(4th ed. 1996).

A temporary cessation, even for a lengthy period, caused by
circumstances over which a property owner had no control, has
been held not to constitute proof of an intent to abandon in the
sense of an abandonment within the meaning of zoning ordinance
provisions where the circumstances themselves negate an inference
of the necessary intention to abandon a use.

Id.

This rationale is consistent with the historical distinction between
"discontinuance" and

"abandonment." See Hartley v. City of Colorado Springs, 764 P.2d 1216,
1222 (Colo. 1988). As explained by the Supreme Court of Colorado,
discontinuance, as distinguished from abandonment, was traditionally
interpreted "not to require proof of intent to abandon so long as there was
proof of actual abandonment in the form of an act or failure to act which
carries an implication of abandonment." Id. at 1222-23 (emphasis in
original omitted); see also 8A E. McQuillan, The Law of Municipal
Corporations, § 25.194, at 77 (3rd ed. 1994) ("Historically, courts have
been somewhat reluctant to read intent out of termination for nonuse. . . .
[and] where the use is involuntary, even courts that purport to do away
with the intent requirement hesitate before finding a discontinuance.").

Moreover, while I agree with the Court that we have never squarely
addressed and resolved the issue before us, I believe the rationale I
advocate here is supported by our prior cases construing discontinuance
provisions. In particular, I am mindful of our opinion in Town of
Castleton v. Fucci, 139 Vt. 598, 601, 431 A.2d 486, 488 (1981), where we
expressed the view that cessation of use must be assessed in light of the
circumstances bearing upon the non-use, before concluding that a vested
property right has been forfeited. There we stated that the court must
consider "such use as an average owner would make of the property, taking
into account its nature and condition" and noted "that periods of non-use,
between recurring periods of seasonal use," would not amount to a
discontinuance or abandonment. Id.

Furthermore, applying the discontinuance provision to cases of
involuntary interruption would raise constitutional concerns as well. We
have stated, "[w]here possible, a statute must be construed to avoid
constitutional infirmities." State v Cantrell, 151 Vt. 130, 134, 558 A.2d 639, 642 (1989). Allowing a conclusive presumption of abandonment to be
drawn from facts beyond the control of the owner is a potentially arbitrary
and unreasonable application of the law. See 4 Ziegler, supra, §
51B.02[3], at 15-16 ("Statutes creating permanent irrebuttable presumptions
have long been disfavored under the Due Process Clauses of the Fifth and
Fourteenth Amendments.") (Quoting Vlandes v. Kline, 412 U.S. 441, 446
(1973)). As the

Supreme Court of North Dakota in a similar case observed, abandonment is
presumed "after the designated period of nonuse has passed," however, a due
process challenge is avoided "by not applying the presumption of
abandonment in situations where the cessation of use was beyond the control
of the property owner." City of Minot, 212 N.W.2d at 841.

The undisputed facts in the instant case support the conclusion that
the requirement of actual abandonment has not been met. It is stipulated
that the property at issue was vacant for approximately twenty-two months,
and that the vacancy was caused by the insolvency of property owners'
predecessors in title, Eppe and Judith Bos. When the subject property was
conveyed to the Bos' in May of 1988, they had a vested right to continue
the preexisting, nonconforming use. Shortly after the conveyance, however,
they experienced financial difficulties and their mortgagee initiated
foreclosure proceedings. The mortgagee, in turn, was required to give
title to the property to HUD, free of encumbrances and tenants, in order to
receive payment on its loan guaranty. HUD auctioned the property in May of
1994, and it was listed in the auctioneer pamphlet as a "quadruplex."

Thus, there was no time period during which any of the predecessors in
title voluntarily abandoned or discontinued the use of the property as a
multi-family structure. On the contrary, the property was the subject of
an involuntary cessation of use from its nonconforming, permitted purpose.

As a result, because the vacancy was involuntary, the discontinuance
period should have been tolled. See, e.g., Flowerree v. City of Concord,
378 S.E.2d 188, 190 (N.C. Ct. App. 1989) (where rental property remained
vacant, the use did not cease where the landlord actively sought new
tenants and made repairs and renovations to attract new tenants); Southern
Equipment Co. v. Winstead, 342 S.E.2d 524, 525 (N.C. Ct. App. 1986)
(owner's failure to operate concrete mixing facility due to slump in
business did not amount to cessation); McLay, 306 A.2d at 528-29 (no
discontinuance where property owner/manufacturer ceased production for the
statutory period of time due to lack of business).

Accordingly, the conduct of the new owners, in this case the Badgers,
is dispositive of whether or not the nonconforming use was discontinued.
As explained by the Supreme Court of Pennsylvania, "[t]he right to continue
[a] nonconforming use, once established and not abandoned, runs with the
land and this right is not confined to any one individual or corporation. A
vested right, unless abandoned, to continue the nonconforming use is in the
land." Appeal in Indianhead, Inc., 198 A.2d 522, 525 (Pa. 1964) (holding
that there was no legal discontinuance under a one-year maximum
discontinuance period created by ordinance where landowner established that
his actions of apparent abandonment were in fact motivated by pending
mortgage foreclosure proceedings, and not by an intent to abandon).

Upon purchasing the subject property, the Badgers prepared the
structure as a three-family dwelling for immediate occupancy. I do not
believe that a prior mortgage foreclosure should foreclose their right to
continue a lawful, nonconforming use. For all the reasons previously
stated, a discontinuance ordinance that is construed to effect a summary
termination of a vested property right, in my opinion, is not consistent
with the phase-out policy contemplated by the relevant statutes and case
law. Accordingly, I would reverse.

Associate Justice

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