In re Richards

Annotate this Case
In re Richards (2001-086); 174 Vt. 416; 819 A.2d 676

[Filed 20-Sep-2002]
[Motions for Reargument Granted 24-Dec-2002]

       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. 2001-086

  In re Appeal of Stuart Richards	         Supreme Court

                                                 On Appeal from
                                                 Environmental Court

                                                 March Term, 2002

  Merideth Wright, J.

  John D. Hansen, Rutland, for Appellant.

  John C. Candon Of Miller & Candon, LLC, Norwich, for Appellee Nowicki.

  Gary R. Wieland, White River Junction, for Appellee Town of Norwich.

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

       JOHNSON, J.   Appellant Stuart Richards appeals from an order of the
  Environmental Court affirming the decision of the Zoning Board of
  Adjustment of the Town of Norwich to grant a permit for appellee Paul
  Nowicki to construct a single-family residence on a parcel of land that
  abuts appellant's property.  Appellant contends that the parcel had merged
  with another parcel owned by Nowicki, which already contains a
  single-family residence, and the combined lot does not meet the minimum lot
  size for the second home.  The court held that the parcels had not merged
  and that each was a pre-existing use that Nowicki was entitled to develop. 
  Appellant also claims that the court erred when it approved a permit for
  Nowicki's septic system because the court made erroneous findings.  We
  reverse the court's determination that the parcels had not merged, but
  affirm, on different grounds, its holding that the septic system was
  properly permitted.

       This case arose from a long standing dispute between the parties over
  their neighboring properties.  Nowicki's property in Norwich originated as
  two separate, but adjoining parcels of land.  Parcel one is 14,950 square
  feet and parcel two is 24,000 square feet.  Alastair MacDonald acquired
  parcel one in 1950.  It contained a single-family residence that had been
  built approximately one hundred years earlier.  MacDonald jointly owned
  parcel two with Caryl Smith.  Smith also owned appellant's property, which
  is behind and adjoining the two parcels.  In 1967, MacDonald and Smith
  conveyed parcel two to MacDonald alone, and conveyed to Smith and her
  successors a right of way on parcel two to serve as a driveway for Smith's
  property, and a right of first refusal for any future sale of parcel two. 
  Thus, at the completion of these transactions, MacDonald owned both parcel
  one and two, bisected by the driveway to Smith's property, and Smith owned
  the setback property with a right of way, that is the driveway.  Appellant
  currently owns Smith's property and is her successor.  The two MacDonald
  parcels have been in common ownership ever since 1967.  In 1996, Nowicki
  acquired title to both parcel one and parcel two.

       The Town of Norwich first enacted zoning regulations in 1971.  Those
  regulations placed parcel one and two within a residential district in
  which the minimum lot size was 8,000 square feet.  Under these regulations,
  both lots were conforming lots.  In 1981, the town's zoning regulations
  were amended, increasing the minimum lot size in the relevant residential
  district to 20,000 square feet.  The minimum lot size for the district in
  question has not changed since.  Thus, in 1981, parcel one became a
  nonconforming, pre-existing lot that was developed with an existing house. 
  Parcel two was a conforming lot for single-family residential use that was
       In 1997, Nowicki applied for, and received, a permit to renovate the
  house located on parcel one, within the existing footprint.  At that time
  no question was raised as to lot size because the combined size of the two
  parcels was 38,950 square feet, well in excess of the minimum lot size.

  Nowicki next sought a permit to develop a residence on parcel two.  That
  permit is the subject of this litigation.  Before the Environmental Court,
  the principal issue in dispute was whether the two parcels had merged as a
  result of Vermont's small lot statute, 24 V.S.A. § 4406(1).  Appellant
  argued that the two parcels had merged and therefore should be treated as a
  single 38,950 square foot lot, in which case a second residence would
  violate the minimum lot requirements.  In seeking the permit, Nowicki
  argued that the parcels had not merged and should be treated independently. 
  According to Nowicki, parcel one remains an existing nonconforming lot,
  protected by §4406(1), and parcel two is a conforming lot of 24,000 square
  feet that meets the minimum lot size requirement.  On joint motions for
  summary judgment, the court ruled in favor of Nowicki.  Citing Lubinsky v.
  Fair Haven Zoning Board, 148 Vt. 47, 50, 527 A.2d 227, 228 (1986), the
  court held that § 4406(1) did not apply to these parcels because that
  section does not apply to undeveloped lots of sufficient size such as
  parcel two or developed lots of insufficient size such as parcel one. 
  Because the state statute regulating small lots does not apply, the court
  held that the parcels had not merged, and that the town's local regulations
  did not require that the properties merge.  Therefore, the court granted
  the permit.

       The court also addressed the issue of whether the septic system
  Nowicki designed and permitted for installation on parcel two will violate
  the town's regulations on "objectionable odor."  The court held that as
  designed, the sewage system would not release "objectionable odor," and
  that if at some point the system did fail then Nowicki assumes the risk
  that residential use of the building may be discontinued.  This appeal

       On appeal, the parties dispute whether 24 V.S.A. § 4406(1) permits
  parcel one to be treated as an existing small lot thus allowing parcel two
  to be developed as a separate, conforming lot, or 


  whether the parcels have merged because parcel one does not qualify as an
  existing small lot under § 4406(1).  At the center of this issue is whether
  the court was correct in determining that Lubinsky controls the inquiry
  into whether the parcels merged.  Appellant contends that  Drumheller v.
  Shelburne Zoning Board of Adjustment, 155 Vt. 524, 586 A.2d 1150 (1990)
  controls this case and that § 4406(1), as it was applied in Drumheller,
  does not allow the permitted development because parcel one is not an
  existing small lot and thus the parcels have merged.  Nowicki responds that
  even if § 4406(1) does not protect parcel one, the parcels have not merged
  because the town zoning ordinance is less restrictive on the development of
  small lots than the state statute.  Nowicki argues that the state statute
  merely sets a protective floor for property owners, and that the town may
  enact a regulation that is more protective of property owners.

       The first issue to be decided is whether § 4406(1) applies to the
  property at issue.  That statute, at the time the permit was sought,

    No municipality may adopt zoning regulations which do not provide
    for the following:
      (1) Existing small lots.  Any lot in individual and separate and
    non-affiliated ownership from surrounding properties in existence
    on the effective date of any zoning regulation, including an
    interim zoning regulation, may be developed for the purposes
    permitted in the district in which it is located, even though not
    conforming to minimum lot size requirements, if such lot is not
    less than one-eighth acre in area with a minimum width or depth
    dimension of forty feet.

  24 V.S.A. § 4406 (1992). (FN1)  The Environmental Court held that this
  statute does not apply to Nowicki's parcels because the provisions apply
  only to undeveloped undersized lots, a definition into which neither parcel
  fits.  To support this conclusion, the trial court relied on language from
  Lubinsky that states "the aim [of § 4406(1)] is to allow the stated use of
  lots already existing and not 


  yet developed or built upon."  Lubinsky, 148 Vt. at 50, 527 A.2d  at 228. 
  In Lubinsky, the property owners were seeking to convert a house into a two
  family dwelling on a lot that did not meet the town's minimum size
  requirement.  We held that although the lot fell within the statutory
  definition of an existing small lot under § 4406(1), that statute could not
  be interpreted to allow for unlimited development of a small lot.  Id. at
  50-51, 527 A.2d  at 228-29.  Rather, we held that the statute was a "limited
  grandfather clause allowing for limited development . . . that is not seen
  as unduly disruptive of the desired ends of zoning."  Id. at 51, 527 A.2d 
  at 229.  The case does not involve two contiguous parcels and is thus not
  relevant to the current case.  Furthermore, the language from Lubinsky
  relied upon by the Environmental Court to support its position is plainly
  obiter dicta.  In fact, in Lubinsky, we were clear that our discussion of
  the purpose of § 4406(1) "is not the issue presented to us nor the question
  argued . . . ."  148 Vt. 50, 527 A.2d  at 228.  Therefore, the court's
  reliance on Lubinsky was error.
       The proper framework for analyzing this case was laid out in
  Drumheller.  In that case, the appellants sought to sell a parcel of their
  property that did not meet the minimum lot size requirements, creating two
  lots, one conforming, and the other nonconforming but permitted as an
  existing small lot under § 4406(1).  The appellants relied on the fact that
  at one point in the property's history, the small parcel had been
  separately owned.  Similar to this case, however, the appellants in
  Drumheller purchased the parcels from a unified owner, and after the
  adoption of minimum lot size regulations.  155 Vt. at 526, 586 A.2d  at
  1150-51.  We held that because the small parcel was not held in individual
  and separated ownership when the minimum lot size restrictions were
  enacted, as required by § 4406(1), the small lot could not be developed. 
  Id. at 529, 586 A.2d  at 1152.  We stated that "[l]ots that are smaller than
  the minimum lot size requirements are nonconforming uses, allowed only
  because the use preexists the applicable zoning requirement.  A 


  goal of zoning is to phase out such uses."  Id. We prohibited the proposed
  use because permitting it "would allow the re-creation of such a use after
  it was extinguished."  Id. at 529-30, 586 A.2d  at 1152.

       Applying Drumheller to this case, we conclude that Nowicki's two
  parcels had already merged when he purchased the property in 1996.  For
  Nowicki to successfully invoke the small lot exemption of § 4406(1), he
  would have to show that the parcels were held in "individual and separate
  and non-affiliated ownership" when the 20,000 square foot minimum lot size
  regulations were enacted in 1981.  In re Weeks, 167 Vt. 551, 555-56, 712 A.2d 907, 909 (1998). (FN2)   Due to the unified ownership of the parcels
  in 1967, however, the enactment of the minimum lot size regulations in 1981
  prevented any subsequent landowner from taking advantage of § 4406(1)'s
  small lot exception to treat parcel one separately from parcel two.  For
  the purposes of development, therefore, the parcels had merged into one
  property subject to a 20,000 square foot minimum lot size requirement at
  the time Nowicki purchased them in 1996.  See Drumheller, 155 Vt. at
  529-30, 586 A.2d  at 1152; see also Brum v. Conley, 572 A.2d 1332, 1336
  (R.I. 1990) (holding that under similar statute, where "no evidence of
  unnecessary hardship exists and two contiguous lots have been purchased
  under single ownership after the effective date of the zoning ordinance . .
  . . [t]he lots should . . . be merged . . ."). 
       Furthermore, although parcel two on its own is a conforming lot, its
  development would create a nonconforming lot in parcel one.  This is
  precisely the "re-creation" of nonconforming uses 


  we forbade in Drumheller.  155 Vt. at 529, 586 A.2d  at 1152.  By developing
  parcel one first, when there was no question as to lot size and then
  seeking to develop parcel two as an independent lot, Nowicki seeks to
  "distinguish a situation where the building construction precedes the land
  subdivision from a situation where the subdivision occurs first, even
  though the result - an undersized lot with a home on it - is the same in
  either circumstance."  Drumheller, 155 Vt. at 530, 586 A.2d  at 1152-53.  As
  in Drumheller, we will not permit Nowicki "to create a distinction with no
  difference in terms of the purposes the zoning ordinance is intended to
  implement."  Id.  Nor are we swayed by the fact that the parcels may be
  treated as separate lots for tax purposes or by deed. "[I]t is entirely
  proper for a town to treat property as a single lot for one purpose and as
  more than one lot for another purpose, given the different reasons for the
  classifications."  Id. at 531.  Therefore, § 4406(1) does not permit
  Nowicki to treat parcel one as an existing small lot.
       Nowicki's remaining argument is that while the parcels may have merged
  and do not qualify as an existing small lot according to the state statute,
  the town zoning regulation is more protective of property owners and
  preserves his right to create the nonconforming lot.  The zoning
  regulations for the Town of Norwich in effect at the time of this permit
  application state that "[a]ny lot, structure, or use which conformed to the
  zoning ordinance when it was established may be utilized lawfully under
  this ordinance with the following restrictions: [1.] A lot may not be
  developed if it is less than one-eighth acre with a width or depth of less
  than 40 ft." (FN3)  Town of Norwich Zoning Regulations § 8 (1992).  The
  town's zoning regulation does not contain the requirement that a
  nonconforming lot be owned independently from surrounding properties to
  qualify for exemption from new ordinances.  Instead, any property that at
  one time conformed to a zoning ordinance may 

  be developed in accordance therewith.  This standard is more permissive
  than the state statute.  See 24 V.S.A. § 4406(1).  Nowicki argues that the
  local zoning ordinance is therefore more protective of property owners and
  should control this case.  He contends that the state statute sets a floor
  protecting property owners, which local ordinances may raise.  The Town of
  Norwich, he argues, has done just that with its existing use ordinance. 
  For the purposes of argument, we accept that if the town ordinance
  controlled, Nowicki's development of parcel two would be acceptable.

       The central flaw in Nowicki's argument is that he misapprehends the
  context in which zoning ordinances are enacted.  Zoning laws are not
  protective of property owners, but rather restrictive of property owners'
  rights, as compared to their rights under the common law.  See Kalakowski
  v. Town of Clarendon, 139 Vt. 519, 522, 431 A.2d 478, 479 (1981) (zoning
  ordinances are in derogation of common law rights).  In passing a state
  zoning statute, the Legislature determines the appropriate limitations on
  how property owners can lawfully use their property.  Municipal ordinances
  that permit a use limited by a state statute undermine these restrictions. 
  If state zoning statutes merely set a floor protective of property owners,
  as Nowicki contends, then municipal ordinances, in the interest of being
  "more protective" of property owners, could undo any state zoning law.
       Instead, to determine if Nowicki can invoke the town's ordinance to
  create the nonconforming small lot by developing parcel two, we look to
  whether the local ordinance conflicts with the state statute.  The state's
  authority to impose zoning restrictions is derived from the state's
  inherent police powers.  Hinsdale v. Vill. of Essex Junction, 153 Vt. 618,
  626, 572 A.2d 925, 929 (1990).  Thus, a "municipality has zoning authority
  only in accordance with, and subject to, the terms and conditions imposed
  by the state in making the power grant."  Flanders Lumber & Building Supply
  Co. v. Town of Milton, 128 Vt. 38, 45, 258 A.2d 804, 808 (1969).  Because


  authority is derived from the state's authorization, it would be anomalous
  if state zoning laws could be replaced, overruled, or rendered ineffective
  by a municipal zoning ordinance.

       Therefore, when confronting cases in which a local zoning ordinance is
  either more restrictive or more permissive of development than state zoning
  regulations, courts have held that a municipality "may not exercise [its]
  grant of power in a manner inconsistent with State law - unless the power
  to amend or supersede State law has been expressly conferred."  Tpk. Woods,
  Inc. v. Town of Stony Point, 514 N.E.2d 380, 381 (N.Y. 1987).  Accord
  Helicopter Assocs., Inc. v. City of Stamford, 519 A.2d 49, 52 (Conn. 1986)
  ("a local ordinance is preempted by a state statute . . . whenever the
  local ordinance irreconcilably conflicts with the statute") (internal
  citations omitted); Emerson Coll. v. City of Boston, 471 N.E.2d 336, 338
  (Mass. 1984) ("local regulations are presumed valid unless a sharp conflict
  exists between the local and the State regulation").  This standard applies
  regardless of whether "the local law is a barrier to what the state has
  required to be done, or allows what the state has said must be prohibited." 
  In re Zoning Permit Application of Patch, 140 Vt. 158, 177, 437 A.2d 121,
  130 (1981); see also Township of Chester v. Dep't of Envtl. Prot., 438 A.2d 334, 337 (N.J. Super. Ct. App. Div. 1981) (local ordinance may not conflict
  with state law if "the ordinance forbid[s] what the Legislature has
  permitted or . . . the ordinance permit[s] what the Legislature has
  forbidden").  Whether a local ordinance conflicts with a state zoning
  statute depends, in part, on the purpose and policy of the state law. 
  Helicopter Assocs., Inc., 519 A.2d  at 52.
       Based on the conflict between both the plain language and the purposes
  of the two regulations, we conclude that there is no way to reconcile the
  town's ordinance with the state's existing small lot statute.  First, as to
  plain language, the municipal ordinance fails on its face to fulfill the
  statutory mandate of 24 V.S.A. § 4406(1).  The statute requires that "[n]o
  municipality may adopt zoning regulations which do not provide for . . .
  [the existing small lots exception of § 


  4406(1)]." 24 V.S.A. § 4406.  The municipal ordinance does not contain the
  existing small lot language of § 4406(1).  Specifically, the municipal
  ordinance omits the requirement that an existing small lot must be owned
  independently from surrounding properties.  We have stated that "for a
  municipality to effectively adopt subdivision and area development
  ordinances, all of the provisions of [what is now 24 V.S.A. Chapter 117]
  must be complied with."  Flanders Lumber, 128 Vt. at 46, 258 A.2d  at 809. 
  See also City of Scottsdale v. Scottsdale Associated Merchants, Inc., 583 P.2d 891, 892 (Ariz. 1978) (municipality that has been delegated power to
  enact zoning ordinance "must strictly comply" with state statute that
  provides for the method of eliminating nonconforming uses).  Although the
  question of whether this omission in the municipal ordinance violates state
  law is not squarely before us, the discrepancy in language is highly
  probative of the conflict between the ordinance and the statute.
       Additionally, as to purpose, the local ordinance's expansive approach
  to the use of nonconforming lots undermines the legislative purpose of
  eliminating nonconforming uses.  See In re McCormick Mgmt. Co., 149 Vt.
  585, 589-90, 547 A.2d 1319, 1322 (1988) (goal of zoning is to eliminate
  nonconforming uses; rules that protect preexisting small lots in affiliated
  ownership undermine that legislative policy).  In similar situations, other
  courts have invalidated local ordinances regardless of whether the
  controlling state statute is perceived as a floor or a ceiling on
  regulation.  For example, in Morehart v. County of Santa Barbara, 872 P.2d 143, 146 (Cal. 1994), the court held invalid a local ordinance that
  restricted development by imposing merger on parcels in more situations
  than the state statute authorizing local authorities to enact such an
  ordinance permitted.  In so holding, the court determined that the state
  statute reflected the legislature's concern for uniformity in the
  conditions under which a local agency could impose merger on parcels to
  regulate development, and the local ordinance undermined that uniformity. 
  Id. at 168.  See also In 


  re Decertification of Eastlake, 422 N.E.2d 598, 601 (Ohio 1981) (local
  ordinance that imposed higher standards for building construction "would
  defeat the avowed purpose of the state building code to encourage
  standardization of construction methods") (internal quotation omitted).

       Similarly, in Avalon Home and Land Owners Ass'n v. Borough of Avalon,
  543 A.2d 950 (N.J. 1988), the court confronted a local ordinance that
  permitted the development of nonconforming uses beyond those permitted by a
  state statute.  Because New Jersey's zoning statutes are intended to
  eliminate nonconforming uses, the court noted that the development of
  nonconforming uses should be limited.  Id. at 952.  The local ordinance at
  issue permitted the reconstruction and renovation of nonconforming uses by
  allowing the structure to have a new configuration and increases in the
  land coverage of the structure.  Id. at 951.  The court agreed with the
  trial court's conclusion that "the ordinance impermissibly authorized the
  reconstruction of nonconforming structures under conditions significantly
  broader than the limited grant of authority in the [state statute]."  Id.
  at 953.
       In this case, the town's ordinance permits the development of
  nonconforming small lots where the state statute would not.  The two
  regulations are therefore in direct conflict.  Because this conflict
  concerns the central purpose of the zoning statute - to eliminate
  nonconforming uses - the state statute must control.  See id. at 953 ("It
  is fundamental that the municipal zoning power cannot be exercised in a
  manner inconsistent with the legislatively authorized grant of that
  power.").  Where our Legislature has spoken clearly about the circumstances
  under which existing small lots may be developed, we will not give effect
  to a municipal ordinance that would allow such development under more
  expansive circumstances.  The municipality has no authority to overrule the
  clear intent of the Legislature.  See Burlington Elec. Dep't v. Vt. Dep't
  of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990).  We therefore find that the Town of Norwich's zoning
  regulation does not authorize Nowicki to develop parcel two as a conforming


       Finally, we address the issue of whether the trial court properly
  granted Nowicki's permit for his septic system.  Although the case before
  the Environmental Court focused on whether the proposed system would
  violate the town's general odor regulation, see Town of Norwich Zoning
  Regulation § 6.1 (1992) ("There shall be no objectionable odors."), we
  affirm on other grounds. Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (This Court "may affirm a correct judgment even though
  the grounds stated in support of it are erroneous.").  On appeal, appellant
  argues that the court's findings were clearly erroneous in its
  determination of how the sewage system would function, and that this
  functioning would not lead to the release of "objectionable odors."  We
  need not reach this issue, however, because the Environmental Court should
  not have addressed the permit of the sewage system.

       Prior to the current litigation, Nowicki applied for a permit for his
  septic system under the town's septic ordinances.  That permit was granted
  by the town and appellant appealed to superior court.  The court held that
  the permit was properly granted under the town's special cases provision of
  the septic ordinance.  On appeal to this court, we affirmed the grant of
  the permit.  Richards v. Nowicki, 172 Vt. 142, 151, 772 A.2d 510, 518
  (2001).  In the current proceeding, appellant is attempting to challenge an
  already-permitted septic system, this time through the town's general
  zoning ordinance, having already lost a challenge based on the town's
  septic ordinance.