In re Nott

In re Nott (2002-040); 174 Vt. 552; 811 A.2d 210

[Filed 23-Oct-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-040

                            SEPTEMBER TERM, 2002


  In re Appeal of Raymond Nott	       }	APPEALED FROM:
                                       }
                                       }
                                       }	Environmental Court
                                       }	
                                       }
                                       }	DOCKET NO. 141-6-00 Vtec

                                                Trial Judge: Merideth Wright

             In the above-entitled cause, the Clerk will enter:


       This is a dispute over the construction of a local zoning ordinance
  pertaining to the operation of a home business.  Town of Hartford (the
  "Town") appeals from a ruling of the environmental court holding that §
  3-12.2 of the Hartford Zoning Regulations requires that "no more than three
  employees who are not full-time residents of the dwelling shall be employed
  at the dwelling."  The Town argues that the environmental court's
  interpretation of § 3-12.2 is clearly erroneous, based on the plain meaning
  of the ordinance.  Appellee Raymond Nott argues to the contrary, and
  further challenges the zoning ordinance as violative of the Vermont
  Planning and Development Act, the Vermont Constitution, and the United
  States Constitution.  We affirm.

       Raymond Nott is the owner of a 90-acre parcel of land in the Rural
  Lands 5 ("RL-5") zoning district of the Town.  Nott lives on the site and
  operates an excavation business from his home.  The business consists of
  building roads, digging cellar holes, installing septic systems, and
  plowing snow.  The business currently employs seven people, none of whom
  live on the premises.  These employees come to the site only as necessary
  to pick up equipment and receive instructions.

       Nott applied for a Conditional Use Approval for approval to operate
  his business out of his  home.  On May 26, 2000, the Hartford Zoning Board
  of Adjustment ("ZBA") granted Nott's request, subject to a number of
  conditions.  Condition 2 provided that, "[n]o more than three persons may
  be employed by the business in compliance with section 3-12.2 of the Zoning
  Regulations."  On June 20, 2000, Nott appealed this decision to the
  environmental court, challenging the ZBA's interpretation of § 3-12.2, as
  well as the legality of the Town's interpretation of that section.  On
  August 9, 2001, the environmental court granted a motion for summary
  judgment filed by Nott, holding § 3-12.2 to mean that "no more than three
  employees who are not full-time residents of the dwelling shall be employed
  at the dwelling."

 
          
       The court asked the parties to attempt to stipulate to language
  altering the original conditions of approval.  After the parties were
  unable to agree upon a stipulation, the Town filed a motion to amend the
  conditional use approval on November 19, 2001, to which Nott filed a
  memorandum in opposition.  The parties apparently abandoned any effort to
  amend condition 2 and agreed on the following language for a new 
  condition 3:

         No more than ten round trips of vehicles may occur in any day
    to the property for business purposes, allocated as four round
    trips by [Nott] and a total of six round trips for the total of
    [Nott's] employees.  All employee trips are confined to the
    business hours articulated in Finding of Fact #15: 6:30 a.m to
    6:00 p.m., Monday through Sunday, except during a winter
    snowstorm.  Any vehicle driven by an employee, whether personal or
    business, shall be included in the calculation of the six round
    trips allowed per day.

       Nott, however, objected to the following fourth line suggested by the
  Town: "Any vehicle driven by [Nott] other than a car or pick-up truck will
  be considered to be for business purposes and included in the four round
  trips per day."  On December 17, 2001, the court issued an Entry Order
  deciding the disputed language in favor of Nott.  This appeal followed.

       The Town challenges the environmental court's decision on the grounds
  that its interpretation of § 3-12.2 of the Hartford Zoning Regulations is
  clearly erroneous, as the plain meaning of the ordinance limits the total
  number of employees of a home industry to three, regardless of whether the
  employees work at or out of the home site.

       These positions are to be evaluated under a limited standard of
  review.  This Court will overturn the environmental court's construction of
  a zoning ordinance only if it is clearly erroneous, arbitrary, or
  capricious.  Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864,
  865 (1994).  We will construe a zoning ordinance using the same rules as in
  the construction of a statute: words are construed according to their plain
  and ordinary meaning, and the whole of the ordinance is considered in order
  to try to give effect to every part.  In re Vt. Nat'l Bank, 157 Vt. 306,
  312, 597 A.2d 317, 320 (1991).  Further, we will adopt the interpretation
  that implements the legislative purpose.  Badger v. Town of Ferrisburgh,
  168 Vt. 37, 40, 712 A.2d 911, 913 (1998).  We have also recognized that
  zoning ordinances are in derogation of common law property rights, and
  therefore any uncertainty in such a regulation is to be decided in favor of
  the property owner.  In re Weeks, 167 Vt. 551, 555, 712 A.2d 907, 910
  (1998).

       Section 3-12.2 of the Hartford Zoning Regulations requires that, for
  the issuance of a conditional use approval for a home industry, "[n]o more
  than 3 employees . . . who are not full-time residents of the dwelling
  shall be employed in the business." The environmental court interpreted
  this section to mean that "no more than three employees who are not
  full-time residents of the dwelling shall be employed at the dwelling."

 
            
       Section  3-12.2 is one of a number of provisions that comprise the
  regulatory scheme for RL-5 districts and thus must be read in conjunction
  with the express objective of the RL-5 regulations:

         To limit developmental density in areas which are now largely
    in agricultural or forestry uses, where development may be
    difficult and/or undesirable, and public water and sewer services
    cannot be provided efficiently.  Since the rural character of
    these lands depends on open space and natural areas, protection of
    these features should be considered when evaluating proposed
    conditional uses.

       Thus, the permitted uses in such a district are limited to agriculture
  and single-family dwellings.  Six other uses, including home industry, are
  permitted only upon issuance of a conditional use permit under the
  standards set out in 24 V.S.A. § 4407(2).

       In this light, it is clear that § 3-12.2 was designed as a mechanism
  to regulate the number of persons who would regularly be on the site: the
  fewer the number of employees (those persons who are regularly on the site)
  working at or out of the dwelling, the lesser the disturbance to the rural
  character of the district.  We recognize the Town's argument that the more
  employees a business has means the more activity associated with it, but
  even the Town has accepted that if the employees worked out of another
  location they should not be counted against the limit in the ordinance.
  Employees of the business who are not full-time residents of the dwelling,
  who do not work at or out of the dwelling, and who rarely or never come to
  the dwelling, will have little or no effect on the rural character of the
  district.  Moreover, the ZBA has the power, pursuant to § 3-12.3 of the
  Zoning Regulations, to impose limitations "on the number of vehicle trips"
  and "parking, and other requirements" to further control the impact of the
  business.  We cannot conclude that the environmental court's construction
  of the ordinance is clearly erroneous, arbitrary, or capricious.

       In reaching this conclusion, we reject the argument of the Town that
  the court's decision actually allows more than three employees to be
  employed at the dwelling as long as only three are present at the dwelling
  at any time.  While we recognize there is some confusion caused by an
  apparent variance between Nott's proposed interpretation of the ordinance
  and the court's conclusions, we do not agree with this description of the
  decision.  The court on two occasions stated that the ordinance means that
  only "three employees who are not full-time residents of the dwelling shall
  be employed at the dwelling."

       Nor do we agree, as both parties suggest, that the court found lawful
  Nott's operation with seven employees.  This is not an enforcement action,
  and the court made no determination of the place of employment of any of
  Nott's employees.

 
        
       As we reject the Town's interpretation of § 3-12.2, we need not
  address Nott's other arguments that such an interpretation violates the
  Vermont Planning and Development Act, the Vermont Constitution, and the
  United States Constitution.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice