In re Miserocchi
Annotate this Case
In re Miserocchi (99-166); 170 Vt. 320; 749 A.2d 607
[Filed 28-Jan-2000]
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. 99-166
In re Appeal of Jeff and Supreme Court
Ann Miserocchi
On Appeal from
Environmental Court
January Term, 2000
Merideth Wright, J.
Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for Appellant.
John D. Hansen, Rutland, for Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. Applicants appeal from decisions of the environmental
court that (1) denied on summary judgment their request for a variance,
and (2) denied after trial approval for a change in use from agricultural
to residential. We conclude that applicants do not need either
change-of-use approval or a variance to change the use of their
nonconforming structure from one permitted use to another permitted use.
Thus, we reverse the decisions of the environmental court to the extent
that it held otherwise.
The environmental court made the following findings. In 1988,
applicants acquired an eighteen-acre parcel in the Town of Clarendon with
a barn that was formerly used to store agricultural equipment. The parcel
is in a residential district of the town, in which both agricultural uses
and one-family dwellings are permitted uses. The barn is forty feet wide
and one hundred feet long, with the longer dimension running along the
road. The barn is set back ten-to-twenty feet from the edge of the
pavement. The town zoning regulations require, in a residential district,
a minimum forty-foot setback from the edge of the road. Thus, the barn is
nonconforming with the setback requirement.
Applicants claimed that the 1988 zoning administrator told them that
they did not need
a permit to alter the interior of the building for a residence, but that
exterior renovations would require a permit. Applicants installed a water
supply and sewage disposal system and installed a mobile home at the back
of and partially inside the barn. In 1995, a subsequent zoning
administrator told them that the residential use was a violation of the
zoning regulations, and appellants applied for change-of-use approval.
The zoning board of adjustment addressed the request as if it were a
request for conditional-use approval. As the environmental court
recognized, there is no zoning regulation that requires conditional-use
approval to allow a change in use from one permitted use to another
permitted use in a noncomplying structure. Nonetheless, the zoning board
of adjustment granted a conditional-use permit to allow applicants to
renovate part of the barn to use as a dwelling, by adding not more than two
bedrooms and a bathroom, provided they did not change the shape of the
building. The zoning board of adjustment also limited the use of the barn
as a dwelling to ten years. Applicants did not appeal.
Subsequently, in 1996, applicants applied for (1) a change-of-use
permit to remove the ten-year limitation on their residential use of the
structure, and (2) for a variance to add skylights to the front and an
addition to the rear of the building. The zoning board of adjustment
denied both the change-of-use permit and the variance. On appeal, the
environmental court ruled on summary judgment that applicants did not meet
the criteria for a variance, but also ruled that "[i]n general, no
variance should be necessary for a residence or an addition or accessory
structure beyond the 40-foot setback." Because the applicants had not
provided the court with sufficient information as to the specific project
proposed, the court ruled that the issue was not suitable for summary
judgment.
Following a trial on the request for a change-of-use permit, the court
reiterated that applicants need no permit for any of their plans for
residential use behind the forty-foot setback because this is a permitted
use in the residential zone. Although recognizing that the zoning board
of adjustment erred in considering the change-of-use request as a request
for conditional-use approval, the court also applied the conditional-use
factors in 24 V.S.A. § 4407(2). The
court denied the application for permanent residential use of the part of
the barn within the forty-foot setback because it would increase the
intensity of the use of the noncomplying part of the structure. The court
found that, under 24 V.S.A. § 4407(2)(D) (adverse effect on bylaws),
increased use would adversely affect § 280 (nonconforming uses) and § 430
(requiring the forty-foot setback) of the Clarendon zoning regulations.
Applicants appeal.
We will uphold the environmental court's construction of a zoning
regulation unless the construction is clearly erroneous, arbitrary or
capricious. See In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998).
Here, we conclude that the court's construction is clearly erroneous. To
begin with, the court erred by considering the factors in 24 V.S.A. §
4407(2) in deciding whether to grant change-of-use approval. Section
4407(2) pertains to permitting for conditional uses. This section is not
applicable because applicants want to use the barn as a residence.
Residential use -- one-family dwelling -- is a permitted use in the
residential district, not a conditional use. See Town of Clarendon Zoning
Regulations § 430. Thus, applicants do not need a conditional-use permit
to use the barn as a residence.
This case therefore involves a nonconforming use, rather than a
conditional use. Nonconforming uses are governed by 24 V.S.A. § 4408.
Section 4408(a)(1) defines a "nonconforming use" as "a use of land or a
structure [that] does not comply with all zoning regulations" but that was
in compliance prior to enactment of the regulations. (Emphasis added.)
Section 4408(a)(2) defines a "noncomplying structure" to be a structure or
part thereof that does not comply with the zoning regulations but was in
compliance before the enactment of the regulations. Therefore, the barn
in this case is a noncomplying structure because the structure is in the
setback area. It is also a nonconforming use, however, because the
structure does not comply with all zoning regulations, specifically the
setback requirements. Indeed, all noncomplying structures will also be
nonconforming uses under the statute. See In re Stowe Club Highlands, 164
Vt. 272, 279 n.5, 668 A.2d 1271, 1276 n.5 (1995); see also In re
Letourneau, ___ Vt. ___, ___, 726 A.2d 31, 37 (1998) (§ 4408(a)(1) defines
noncomplying
structure as nonconforming use).
Section 4408(b) authorizes municipalities to "regulate and prohibit
expansion and undue perpetuation of nonconforming uses," which includes
noncomplying structures. It specifies four actions that the
municipalities may control: (1) changes of nonconforming uses to other
nonconforming uses, (2) extension or enlargement of nonconforming uses, (3)
resumption of nonconforming uses after abandonment or discontinuance, and
(4) movement or enlargement of a structure containing a nonconforming use.
The statute authorizes municipalities to regulate these changes in
nonconforming uses but does not command any particular action. See Stowe
Club Highlands, 164 Vt. at 278, 668 A.2d at 1276. Thus, we turn to the
municipal zoning regulation to determine how the municipality regulates
nonconforming uses. See id.
Section 4408 is implemented by Town of Clarendon Zoning Regulations §
280, which provides:
Any non-conforming use of structures or land except those
specified below may be continued indefinitely, but:
1. Shall not be moved, enlarged, altered, extended,
reconstructed or restored (except as provided below).
2. Shall not be changed to another non-conforming use
without approval by the Board of Adjustment.
3. Shall not be re-established or restored without approval
by the Board of Adjustment if such use has been
discontinued for a period of six months, or has been
changed to, or replaced by a conforming use.
Zoning regulations are construed under general rules of statutory
construction. See Weeks, 167 Vt. at 554, 712 A.2d at 909. Thus, we are
bound by the plain and ordinary meaning of the language, unless it is
uncertain. See id. Because land use regulation is in derogation of the
common law, any ambiguity is resolved in favor of the landowner. See id.
at 555, 712 A.2d at 910.
The plain and ordinary meaning of § 280 allows any nonconforming use
of structures or land to be continued indefinitely, however, the
nonconforming use "[s]hall not be moved, enlarged, altered, extended,
reconstructed or restored." Section 280 provides two exceptions
to the general rule: (1) a nonconforming use may be changed to another
nonconforming use with approval, and (2) a nonconforming use may be
re-established or restored after discontinued with approval. Thus, to
obtain approval for a change to a nonconforming use, a proposal must be
covered by one of these exceptions. Neither exception in § 280 is
applicable here because applicants do not seek to (1) change from one
nonconforming use to another nonconforming use, or (2) restore a
discontinued, nonconforming use. Because applicants' proposal does not
fall within either exception, § 280 provides no procedure for applicants
to obtain approval. Applicants' proposed change in use is either
unregulated by § 280 or prohibited by § 280.
There are two problems with the framework of § 280. First, § 280
fails to provide any criteria for the two exceptions under which the board
of adjustment may evaluate whether to approve a change in nonconforming
use. Absent any criteria or guidelines, "the applicant for a permit is
left uncertain as to what factors are to be considered." Town of Westford
v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973). Moreover, a
decision arrived at without reference to any standards or principles is
arbitrary and capricious, see id.; such ad hoc decision-making denies the
applicant due process of law. See Lewandoski v. Vermont State Colleges
Faculty Fed'n, 142 Vt. 446, 453-54, 457 A.2d 1384, 1388 (1983) (United
States Supreme Court defines arbitrary decision as one reached without
consideration or reference to principles); State v. Buelow, 155 Vt. 537,
547, 587 A.2d 948, 954 (1990) (J. Dooley, concurring) (ad hoc decision-
making denies due process of law). The lack of guiding standards in § 280
may explain in part why both the zoning board and the environmental court
turned to the guidelines for conditional-use approval to provide some
principled basis for their decisions. Section 280 provides no such
guidelines as a basis for denying approval, however.
Second, § 280 appears to prohibit all alterations of nonconforming
uses, no matter how minor, but allows the board of adjustment to grant
approval routinely for major changes, that is changes from one
nonconforming use to another nonconforming use, and restoring a
discontinued, nonconforming use. Indeed, under the plain language of §
280, a nonconforming
use cannot be altered at all unless it is changed to another nonconforming
use or discontinued and then restored. This construction is simply not
rational. See Stowe Club Highlands, 164 Vt. at 280, 668 A.2d at 1277
(rejecting as irrational construction of zoning regulation that
reconstruction or replacement of nonconforming structure is allowed while
enlargement or substantial alteration is prohibited).
To avoid this irrational result, and the alternative, a standardless
approval procedure, we construe § 280 narrowly to address only a change to
the nonconforming use. Applicants here do not propose to change their
nonconforming use, the setback. They plan to change only from one
permitted use to another permitted use, a change that is not regulated by §
280. Thus, under § 280, applicants may continue the nonconforming use of
the land -- the setback -- indefinitely, provided they do not move,
enlarge, alter, extend, reconstruct or restore the nonconforming use --
again, the setback. Accordingly, we hold that applicants do not need
approval to proceed with their plans because they do not propose any
change to the nonconforming use; they propose only to change the use of
the barn from agricultural to residential. This construction also resolves
any ambiguity in § 280 in favor of the landowner.
Our holding is consistent with the majority of decisions in other
jurisdictions. Although it is difficult to analogize to other cases
because zoning regulations differ widely, courts have generally allowed a
change from one permitted use to another permitted use within a
noncomplying structure. See, e.g., Petruzzi v. Zoning Bd. of Appeals, 408 A.2d 243, 246-47 (Conn. 1979) (board must issue permit to plaintiffs
seeking to alter interior of existing noncomplying building from one
permitted use -- church -- to another permitted use -- single family
dwelling); Singh Sukthankar v. Hearing Bd. of Radnor Township, 280 A.2d 467, 470 (Pa. Commw. Ct. 1971) (ordinance does not restrict change from
one conforming use -- carriage house -- to another conforming use --
dwelling house -- in building nonconforming only as to setback); see also
Goldhirsh v. McNear, 590 N.E.2d 709, 712 (Mass. App. Ct. 1992) (remanding
for board to determine whether change from one permitted use -- carriage
house --
to another permitted use -- single-family dwelling -- will increase
nonconformity); Spring Garden Civic Ass'n v. Zoning Bd. of Adjustment, 617 A.2d 61, 64 (Pa. Commw. Ct. 1992) (existing nonconforming structure may be
put to any permitted use so long as altered use does not increase
nonconformity of structure).
Even where the zoning regulation specifically requires a permit for a
noncomplying structure to change from one permitted use to another
permitted use, courts have viewed favorably changes that do not increase
the nonconformity. See, e.g., Nichols v. Board of Zoning Appeal of
Cambridge, 530 N.E.2d 1257, 1260 (Mass. App. Ct. 1988) (permit required
for structural alterations to noncomplying structure to change from one
permitted use -- garage -- to another permitted use -- office; however,
board should consider that following factors favor grant of permit: change
of use involves no change in footprint of building, no increase in
nonconformity and improves appearance of garage).
We also conclude that the environmental court erred in denying
change-of-use approval solely on the grounds that the change in use from
agricultural to residential would increase the intensity of the use of the
noncomplying part of the structure. Section 280 does not specifically
address an increase in intensity of use of a nonconforming use. Decisions
addressing an increase in intensity of use ordinarily involve
nonconforming business activities. In such cases, most courts have held
that a mere increase in the volume or intensity of a nonconforming business
activity is not prohibited by a zoning regulation prohibiting an extension
or enlargement of a nonconforming use. See K. Young, 1 Anderson's
American Law of Zoning §§ 6.38, 6.50 (4th ed. 1996); see, e.g., DiBlasi v.
Zoning Bd. of Appeals, 624 A.2d 372, 376 (Conn. 1993) (mere increase in
amount of business is not illegal expansion of original nonconforming use).
Although there are few cases addressing an increase in intensity of
use of a noncomplying structure, generally, a mere increase in the
intensity of use of a noncomplying structure is not prohibited. See,
e.g., Seaside Properties v. Zoning Bd. of Appeals, 542 A.2d 746, 747 (Conn.
App. Ct. 1988) (regulations do not prohibit change in use of summer
cottage, with
nonconforming lot size and setback, to year-round use); Cirullo v. Old Lyme
Zoning Bd. of Appeals, No. 533659, 1996 WL 694626 at *6 (Conn. Super. Ct.
Nov. 22, 1996) (intensification of use of nonconforming residential
structure is not prohibited expansion of nonconforming use). We recognize
that a goal of zoning is to phase out nonconforming uses, see Weeks, 167
Vt. at 555, 712 A.2d at ___, but absent a regulation specifically
prohibiting an increase in the intensity of use of a noncomplying
structure, we decline to create a rule contrary to the majority of law on
this issue.
Finally, we conclude that the ruling of the environmental court --
restricting residential use to the part of the barn behind the forty-foot
setback -- is clearly erroneous. Nothing in 24 V.S.A. § 4408 or zoning
regulation § 280 directs such a result. Allowing applicants to use only
part of the barn is impractical. Not surprisingly, no case has been
presented to us that limits a permitted activity to the complying part of
a noncomplying structure.
Much of the difficulty in this case arises from the merger of the
concepts of nonconforming activities and noncomplying structures under the
single denotation "nonconforming use." In general, zoning law
distinguishes between the two concepts. "Use" restrictions limit the
activities that may take place within a certain area, while "bulk"
restrictions control setbacks and size, shape and placement of buildings
on the property. See P. Rohan, 7 Zoning and Land Use Controls § 42.01[4],
at 42-9 (1991). Thus, zoning regulations usually provide different
restrictions for nonconforming activities and noncomplying structures.
See, Stowe Club Highlands, 164 Vt. at 278, 668 A.2d at 1276 (definitions
in Stowe zoning ordinance carefully differentiate nonconforming use and
nonconforming structure). This distinction is helpful because rules
applying to nonconforming activities often cannot be easily applied to
noncomplying structures and vice versa.
Zoning regulation § 280 does not distinguish between the two concepts,
and therefore, it is difficult to apply in this case because its
directives more aptly apply to nonconforming activities than to
noncomplying structures. Restrictions that specifically address
noncomplying
structures are preferable because they provide clearer guidance to
landowners, zoning boards and courts. There are three common types of
restrictions on alterations to noncomplying structures. First, some
limitations may be very restrictive, confining alterations to those related
to safety regulations. K. Young, supra § 6.56, at 658. Second, the most
common type of limitation prescribes the maximum amount of money, often as
a percentage of the value of the building, that may be spent to alter a
noncomplying building. See id. at 659. Finally, some regulations limit
alterations of noncomplying structures to those that do not increase the
nonconformity. See, e.g., Letourneau, ___ Vt. at ___, 726 A.2d at 37
(Derby ordinance provides that any nonconforming structure shall not be
moved enlarged, altered or extended in any manner that would make
nonconforming structure more nonconforming); Spring Garden, 617 A.2d at 64
(existing nonconforming structure may be put to any permitted use that does
not increase nonconformity of structure); Goldhirsh, 590 N.E.2d at 711
(question is whether proposed changes to nonconforming residential
structure will increase nonconforming nature). Our decision here is
consistent with the third and least restrictive of these options.
In sum, the nonconforming use, the setback of the barn, may be
continued indefinitely. See Town of Clarendon Zoning Regulations § 280.
Only a change in the nonconforming use, in this case the setback, requires
approval. See id. None of the changes applicants want to make involve a
change in the setback. Thus, they need no change-in-use approval, no
conditional-use permit and no variance.
Reversed.
FOR THE COURT:
_______________________________________
Associate Justice
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