In re Weeks

Annotate this Case
In re Weeks  (97-039); 167 Vt. 551; 712 A.2d 907

[Filed 1-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. 97-039

Appeal of Lloyd W. & Elizabeth W. Weeks      Supreme Court

                                             On Appeal from
                                             Environmental Court

                                             September Term, 1997

Merideth Wright, J.

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

Andrew Jackson, Middlebury, for Defendant-Appellant.

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

       AMESTOY, C.J.  The Town of Shoreham appeals the Environmental Court's
  ruling that two adjoining parcels of land owned by appellees Lloyd and
  Elizabeth Weeks are exempt from the Town's minimum lot size requirement and
  therefore may be developed separately.  The Environmental Court found that,
  although the two exempt undersized lots would ordinarily merge into one
  unit when appellees brought them into affiliated ownership, a steep ravine
  between the parcels divides the lots and prevents them from being used
  functionally as one property and thereby precludes merger.  Because we
  conclude that the Town's zoning ordinance does not mandate the automatic
  merger of adjacent substandard lots that subsequently come into common
  ownership, we affirm the Environmental Court's decision on alternative

       In 1967, appellees purchased a parcel of land located within the Town
  on Lake Champlain's eastern shore.  Less than one acre in size, the parcel
  is designated as Lot 20 on a plot plan of thirty-three lots comprising the
  "Happy Evie Lakeshore Development" which was filed with the Town land
  records in 1964.


       In 1974, the Town established a minimum lot size of two acres in the
  district where the subject property is located.  As required under 24
  V.S.A. § 4406(1), the Town's ordinance contains an exception for undersized
  lots which were in "individual and separate and non-affiliated ownership
  from surrounding properties in existence on the effective date" of the

       In 1982, appellees purchased from Central Vermont Public Service
  Corporation (CVPS) Lot 19, which adjoins and lies directly south of Lot 20,
  and is similarly less than one acre in size.  CVPS originally purchased Lot
  19 along with many other lots from the founders of the Happy Evie Lakeshore
  Development.  Appellees have maintained a garden, parked their mobile home,
  and built a garage for storage and other use on Lot 19.

       In 1995, appellees applied for a zoning permit to sell Lot 20 and
  retain Lot 19 for their own residential use.  The Town's Zoning
  Administrator denied the subdivision permit because neither lot satisfied
  the Town's required two-acre minimum size.  The Zoning Board of Adjustment
  (ZBA) affirmed the permit denial on grounds that (1) Lot 19 was not
  "grandfathered" as an existing small lot in 1974 when the ordinance took
  effect because at that time CVPS owned other lots adjacent to Lot 19, and
  (2) even if Lot 19 was originally grandfathered as an existing small lot,
  it merged with Lot 20 into a single parcel when appellees brought those
  lots into common ownership.  Thus, according to the ZBA, appellees could
  not sell their lots separately.

       Appellees then sought de novo review by the Environmental Court
  pursuant to 24 V.S.A. § 4472(a).  The Environmental Court considered two
  principal issues: (1) whether Lots 19 and 20 were in fact held in separate
  and non-affiliated ownership when the amended zoning ordinance went into
  effect, and (2) whether Lot 19 merged with the adjoining Lot 20 to form
  functionally one parcel when appellees brought them into common ownership
  in 1982.

       The court concluded that both undersized lots were held in separate
  and non-affiliated ownership when the zoning ordinance went into effect,
  and thus were originally grandfathered


  under the ordinance's existing small lot exception.(FN1)  The court also
  determined that the lots would ordinarily "merge" into a single parcel once
  they were subsequently brought into common ownership, but that merger of
  Lots 19 and 20 was not appropriate because the "steepness, size, and
  placement" of a ravine located on the dividing line between the two lots
  "prevents them from being used functionally as one property."

       To reach its result, the Environmental Court extended our holding in
  Wilcox v. Village of Manchester Zoning Bd. of Adjustment, 159 Vt. 193, 616 A.2d 1137 (1992).  In Wilcox, we reaffirmed an earlier holding from
  Drumheller v. Shelburne Zoning Bd. of Adjustment, 155 Vt. 524, 586 A.2d 1150 (1990), that when two contiguous parcels of land are held in common
  ownership at the time minimum lot area zoning goes into effect, those
  parcels "merge" into "functionally one property."  Wilcox, 159 Vt. at 196,
  616 A.2d  at 1139.  In Wilcox we also held that merger should not occur if a
  right of way between the two parcels "effectively separate[s]" the parcels
  and prevents them from being "used in the ordinary manner as a single
  `lot.'"  Id. at 197, 616 A.2d  at 1139.  Here, the Environmental Court
  concluded that a steep ravine dividing appellees' lots poses a practical
  barrier that interferes with the ability to enjoy and use the two lots as a
  single parcel.  In reversing the ZBA, the court declined to merge the
  parcels and ruled that appellees could sell their lots separately without
  obtaining a subdivision permit.

       The Town argues that the Environmental Court inappropriately broadened
  Wilcox by concluding that the physical attributes of appellees' land can
  provide a basis to avoid merger and treat what should be viewed as a single
  parcel of land as functionally two separate lots.  The


  Town argues in the alternative that, even if the land's attributes can
  provide a basis to avoid merger, the court erred in finding that the
  parcels cannot be enjoyed as one lot.  As support, the Town points out that
  the ravine does not extend along the entire boundary line between the two
  lots, and that appellees can freely pass from one parcel to the other on a
  flat area near the road. We do not reach the issue of whether physical
  attributes of the subject parcel can preclude merger because we conclude
  that the Environmental Court erroneously operated under the presumption
  that our holding in Wilcox mandated the automatic merger of contiguous
  substandard parcels pursuant to the "existing small lot" exception.

       Zoning ordinances are construed according to the general principles of
  statutory construction.  See Houston v. Town of Waitsfield, 162 Vt. 476,
  479, 648 A.2d 864, 865 (1994). We are bound by the plain language of the
  statute, and if it "resolves the conflict without doing violence to the
  legislative scheme, there is no need to go further, always bearing in mind
  that the paramount function of the court is to give effect to the
  legislative intent."  Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49,
  527 A.2d 227, 228 (1987).  Our standard for reviewing the Environmental
  Court's interpretation of a zoning ordinance is whether the construction is
  clearly erroneous, arbitrary or capricious.  See Houston, 162 Vt. at 479,
  648 A.2d  at 865.  With these background principles in mind, we review the
  Environmental Court's construction of the Town's small lot exemption and
  the identical language of 24 V.S.A. § 4406(1).

       As required under § 4406(1), the Town's minimum lot size ordinance
  incorporated the following exception:

    (1)  Existing small lots.  Any lot in individual and separate and
    non-affiliated ownership from surrounding properties in existence on the
    effective date [of the zoning ordinance] . . . may be developed for the
    purposes permitted in the district in which it is located, even though not
    conforming to minimum lot size requirements . . . .

  24 V.S.A. § 4406(1).

       Under this exception, existing small lots are effectively
  grandfathered as nonconforming uses as to area.  See Lubinsky, 148 Vt. at
  50, 527 A.2d  at 228.  Exempted parcels retain their


  development rights even though their area is less than that prescribed by
  the ordinance.  See id. at 51, 527 A.2d  at 229.  This Court, however, has
  held that the § 4406(1) exception does not apply to contiguous undersized
  parcels held under common ownership at the time of enactment of the minimum
  lot size ordinance.  See Drumheller, 155 Vt. at 529, 586 A.2d  at 1152.
  Instead, the parcels are deemed to have merged to form one parcel which can
  be subdivided only if the resulting parcels conform with the area
  requirements.  See id; Wilcox, 159 Vt. at 197, 616 A.2d  at 1139.  That
  said, we find no statutory language which requires that undersized lots
  remain in separate and non-affiliated ownership beyond the effective date
  of the ordinance in order to retain their grandfathered status.  The
  absence of an express requirement that undersized lots remain in separate
  and unaffiliated ownership stands in marked contrast with the ordinance at
  issue in Wilcox.  See 159 Vt. at 195 n.*, 616 A.2d  at 1138 n.* (ordinance
  in question required that separate and non-affiliated ownership status
  exist on "the date of the adoption of this bylaw, and continuously
  thereafter") (emphasis added).

       We recognize that minimum lot size exceptions are nonconforming uses,
  allowed only because their use pre-exists the applicable zoning
  requirement, and that "[a] goal of zoning is to phase out such uses." 
  Drumheller, 155 Vt. at 529, 586 A.2d  at 1152.  We are mindful, however,
  that zoning ordinances are in derogation of common law property rights and
  that "in construing land use regulations any uncertainty must be decided in
  favor of the property owner." In re Vitale, 151 Vt. 580, 584, 563 A.2d 613,
  616 (1989); see also Secretary v. Handy Family Enters., 163 Vt. 476,
  481-82, 660 A.2d 309, 312 (1995) ("[O]ur zoning decisions . . . have
  emphasized that ambiguity must be resolved for the property owner.");
  Glabach v. Sardelli, 132 Vt. 490, 494, 321 A.2d 1, 4 (1974) ("This Court
  has previously held in a number of cases that zoning ordinances are to be
  strictly construed in view of the fact that they are in derogation of
  common law property rights, and that when exemptions appear in favor of the
  property owner, the exemptions shall be construed in favor of the owner."),
  overruled on other grounds by Leo's Motors, Inc., v. Town of Manchester,
  158 Vt. 561, 613 A.2d 196 (1992).


       We conclude that the Environmental Court's holding that appellees'
  lots would merge but for the physical attributes of the property is
  erroneous.  Its finding incorrectly assumes that parcels which come into
  affiliated ownership after the effective date of the statute no longer
  qualify for the "existing small lots" exception for substandard lots, and
  therefore merger is compelled by law.  In Allen v. Adami, 347 N.E.2d 890
  (N.Y. 1976), the New York State Court of Appeals confronted a similarly
  worded exception to the lot area restrictions in an analogous factual
  situation.  The court found that because the plain language of the
  ordinance did not "clearly provide that common ownership arising [after the
  regulation's effective date] would effect a merger," a landowner need only
  show that the lot was owned separately on the effective date of the
  ordinance in order to come under the exception.  Id. at 892.  The court
  reasoned that any ambiguity regarding the reach of the statutory exception
  should be construed against the municipality and in favor of the landowner,
  and that the municipality could have limited the statutory exception by
  simply including the requirement that non-affiliated ownership continue
  after the ordinance's effective date.  See id.

       We find additional support for this reasoning in scholarly treatises
  written on the subject. See 3 E. Ziegler, Rathkopf's The Law of Zoning and
  Planning § 32.05, at 32-20 (1997) (where statute is silent, courts will not
  require separate ownership to continue after date of zoning ordinance
  enactment); 7 P. Rohan, Zoning and Land Use Controls § 42.03[1], at
  42-50-42-52 (1998) ("The right to a special exception or variance may not
  be forfeited . . . by the acquisition of adjacent lots subsequent to the
  enactment of the ordinance, unless the `grandfather' clauses of the zoning
  ordinance provides to the contrary."); 2 K. Young, Anderson's American Law
  of Zoning § 9.67, at 330 (1996) ("Absent a specific provision in the
  regulations, the right to relief is not lost where, subsequent to the
  enactment of a restrictive ordinance, adjacent substandard lots are
  acquired by a single owner."); see also Brum v. Conley, 572 A.2d 1332, 1334
  (R.I. 1990) (despite qualifying as a nonconforming use as to area at the
  time of the ordinance's enactment, the parcels merged because the ordinance
  expressly stated that "if two (2) or more


  contiguous lots . . . are under single ownership at any time after the
  effective date . . . such lots shall be considered to be an individual
  parcel"); Faranda v. Schoepflin, 250 N.Y.S.2d 928, 929 (1964) (ordinance
  provided that if a substandard lot is acquired "under any circumstances" by
  an adjoining owner, the substandard plot merges in fee with the adjoining

       We reaffirm our holding that 24 V.S.A. § 4406(1), and in this case the
  Town's 1974 ordinance, creates an exception for substandard lots held in
  non-affiliated ownership at the time the ordinance takes effect.  Further,
  under the language of § 4406(1), a parcel's exempt status as a
  nonconforming use is not diminished, nor is merger automatically triggered,
  when and if the parcel is brought into common ownership with an adjoining
  parcel after the effective date of the ordinance, absent language in the
  zoning ordinance providing to the contrary.

       We conclude on these facts that Lots 19 and 20 are exempt from the
  Town's two-acre area requirement because both were existing small lots in
  unaffiliated ownership at the time the 1974 ordinance took effect. 
  Although Lots 19 and 20 are currently held in common ownership, each lot
  retains its status as exempt from the Town's two-acre minimum lot area


                              FOR THE COURT:

                              Chief Justice


FN1.    By determining that the two "pre-existing undersized lots"
  should merge because of their common ownership, and then applying an
  exception to merger, the Environmental Court found that the two lots were
  in separate and non-affiliated ownership in 1974, the date of the
  regulation.  Neither party in this appeal challenged this finding by the
  Environmental Court, and thus we will not disturb it.  See Rowe v. Brown,
  157 Vt. 373, 379, 599 A.2d 333, 337 (1991) (issues not presented on appeal
  are deemed waived).