In re Korbet
Annotate this Case
In re Korbet (2002-501); 178 Vt. 459; 868 A.2d 720
2005 VT 7
[Filed 27-Jan-2005]
ENTRY ORDER
2005 VT 7
SUPREME COURT DOCKET NO. 2002-501
JUNE TERM, 2004
In re Appeal of Susan and Peter Korbet } APPEALED FROM:
}
}
} Environmental Court
}
}
} DOCKET NO. 171-10-01 Vtec
Trial Judge: Alan W. Cook
In the above-entitled cause, the Clerk will enter:
¶ 1. Brian Szad and Lois Patrie (applicants) appeal from an
environmental court decision denying their application for a conditional
use permit to operate a country store in the Village of Perkinsville, Town
of Weathersfield. Applicants contend the court erred in denying the
application by: (1) applying incorrect criteria for conditional use review
and considering the store's impact on an adjacent property owner; and (2)
characterizing the store as a nonconforming use. We affirm.
¶ 2. The material facts are undisputed. The subject property is
located on Route 106 in the center of the Village of Perkinsville. For
many years, the building housed a general store, post office, and owner's
apartment. In 1996, however, the store closed, and two years later the
post office moved to a location several miles outside of the Village. When
open, the store served as the center of activity in the village, and many
residents have expressed a desire to have it reopen.
¶ 3. In 2000, applicants - who own and operate a general store in
North Springfield, Vermont - purchased the subject property with plans to
reopen the Perkinsville store. In June 2001, they submitted applications
for site plan review and a conditional use permit (CUP). The Town planning
commission held hearings on the site plan application in July and August.
Appellees Susan and Peter Korbet, who reside on the property just south of
and adjacent to the store, attended one of the meetings and expressed some
concerns about the proposal. In August, the planning commission approved
the site plan, but imposed several conditions, including the elimination of
certain proposed parking spaces in the area of a leach field, and the use
of natural vegetation for a proposed privacy fence between the properties.
The Korbets did not appeal the planning commission decision.
¶ 4. The town zoning board of adjustment held hearings on the CUP
application in August and September. On September 19, the Board granted
the permit, requiring applicants to develop and operate the store in
conformity with the approved site plan and stated hours of operation. The
Korbets then appealed the Board's decision to the environmental court,
which conducted a site visit and held an evidentiary hearing in May 2002.
¶ 5. In October 2002, the court issued a written decision, denying
the CUP application because the proposal violated the Weathersfield town
bylaws. The court first noted that under the town's zoning bylaws, the
store is located in an area denominated the "Village" district, where
"Permitted" uses in the district include single- and two-family homes, bed
and breakfast inns, and home occupations. Uses that are "permitted upon
granting of a Conditional Use Approval" include "Small enterprise[s],"
defined as including a "small retail store." It is undisputed that the
proposed country store falls within this category of uses requiring a CUP.
¶ 6. In granting a CUP the town's zoning bylaws require the Board
to consider "whether the proposed use will adversely affect . . . the
character of the area; and/or traffic; as well as whether all applicable
general and special provisions of these Bylaws would be met."
Weathersfield Zoning Bylaws § 4.2.2; see 24 V.S.A. § 4407(2)(B)-(D),
repealed by 2003, No. 115 (Adj. Sess.), § 119(c) (authorizing local boards
to allow conditional uses if the use does not adversely affect the
character of the area, traffic and bylaws in effect). Most importantly,
the environmental court held that applicants' proposal did not meet the
zoning requirement that "[c]ommercial . . . parking lots adjacent to
residential uses shall be setback a minimum of fifty (50) feet."
Weathersfield Zoning Bylaws § 6.13.2. The proposed parking scheme-nine
spaces in the rear of the store and one on either side-violated the
fifty-foot setback and lacked adequate screening from the view of persons
within residential districts. (FN1)
¶ 7. Applicants argue that the environmental court incorrectly
classified the store as a nonconforming use. The bylaws define
nonconforming use as "[t]he use of structures or the use of land, which use
does not comply with all applicable regulations of the district in which it
is located, but which did comply . . . prior to the adoption of these
Bylaws." Id. § 6.4. The environmental court reasoned that this "small
enterprise" was nonconforming because it required a CUP and one had never
been obtained for the site. (FN2) The court also noted, however, that the
store's status as a nonconforming use did not advantage the applicants in
any way because the proposed parking plan was not preexisting. In any
event, status as a nonconforming preexisting use would not eliminate the
need for compliance with the current ordinance because such use has been
discontinued for more than one year.
¶ 8. Thus, applicants' only alternative is to prevail on the
theory of noncomplying structure. The relevant provision of the
Weathersfield Zoning Bylaws states:
A structure which does not comply with all applicable regulations
of the district in which it is located, but which did comply with
all applicable regulations prior to the adoption of these Bylaws,
or any subsequent amendments thereto, may be maintained and
repaired. Such structure may also be enlarged in any manner which
does not increase the degree of noncompliance, for example, such
an enlargement must be in a direction where at least the minimum
required setback would remain.
Id. § 6.5; see also id. § 8 (defining noncomplying structure). The
environmental court held that applicants' store is a preexisting
noncomplying structure under § 6.5 because it is on an undersized lot "and
the building does not comply with the setback requirements." Because the
"proposed project would not enlarge the building, [] the proposed use of
the building would comply with Section 6.5." The court held, however, that
noncomplying structure protection for the building does not encompass the
parking lot and therefore would not obviate the need for the parking lot to
comply with the current bylaws. Applicants argue that the parking lot, as
well as the building, is grandfathered by this status.
¶ 9. This conclusion is sustainable only if the parking lot is
considered part of the noncomplying structure. In fact, parking does not
fit the definition of structure contained in the bylaws. The bylaws define
"structure" as "[a]n assembly of materials for occupancy or use, including,
but not limited to: a building, mobile home or trailer, sign, wall, dock or
athletic court." Id. § 8. "We use familiar rules of construction in
interpreting zoning ordinances. We first construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of
the ordinance." In re Stowe Club Highlands 164 Vt. 272, 279?80, 668 A.2d 1271, 1276?77 (1995) (citing In re Vt. Nat'l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991)). The plain meaning of the definition excludes
parking from its scope.
¶ 10. The dissent argues that the environmental court was required
to accept the zoning administrator's testimony, which it asserts is
contrary to the court's conclusion. We agree that the interpretation of
the bylaws by the zoning board and the zoning staff "can be determinative
in a close case." In re Maple Tree Place, 156 Vt. 494, 500, 594 A.2d 404,
407 (1991). The weight to be accorded such testimony depends on the
explanation of a "reason or rationale for its decision" and a demonstration
that the interpretation has been consistent. In re Chatelain, 164 Vt. 597,
598, 664 A.2d 269, 270 (1995) (mem.). The zoning administrator's testimony
on this point was conclusory, (FN3) and there was no explanation of the zoning
board's rationale. Further, there is no indication that this
interpretation has been consistently applied by the board. The plain
meaning of the bylaw's language is contrary to the administrator's
interpretation. Under these circumstances, the court acted within its
discretion in not following the interpretation of the zoning administrator.
¶ 11. We recognize that the bylaw could be broader and it could
allow for grandfathering of noncompliant parking in the face of new
requirements. See 24 V.S.A. § 4408(a)(2) (defining noncomplying structure
as "a structure or part thereof not in conformance with the zoning
regulations covering . . . off-street parking or loading requirements").
The statutory definition allows a municipality to include off-street
parking within the structure for grandfathering purposes even though the
parking is not itself a structure. See id. § 4303(27) (defining
"structure"). The bylaw, however, failed to capture this aspect of the
statutory definition. The state statute is an authorization that does not
"command any particular action." In re Stowe Club Highlands, 164 Vt. at
278, 668 A.2d at 1276. Thus, the definition in the bylaw controls. Id.,
668 A.2d at 1277. The trial court determined that parking was not part of
the structure, unlike minimum lot or setback requirements. We must uphold
its construction of the bylaw unless it is "clearly erroneous, arbitrary or
capricious." In re Casella Waste Mgmt., 2003 VT 49, ¶ 6, 175 Vt. 335,
830 A.2d 60. Here, the court's construction is entirely reasonable, indeed
unavoidable, given the limits of the definition.
¶ 12. Even if the court was incorrect and the parking could
properly be considered as part of the noncomplying structure, the proposal
still does not meet the requirements set out in the bylaws. Under § 6.5,
noncomplying structures may be enlarged but only in a "manner which does
not increase the degree of noncompliance." Previously, the rear of the
building was used for parking only by the owners, resulting in a small
number of vehicles that entered the setback area. The proposal makes the
rear of the building the primary location of customer parking, with nine
spaces set aside for this use, greatly increasing the traffic volume in the
setback area. The environmental court's conclusion that the parking
arrangement increases the degree of noncompliance is not erroneous,
arbitrary or capricious and must be upheld.
¶ 13. In view of our disposition, we need not address applicants'
argument that the environmental court misapplied the conditional use
criterion relating to the store's impact on the character of the area and
erred in holding that the proposed development did not meet this standard.
See 24 V.S.A. § 4407(2)(B) (allowing zoning board to issue CUP if the
proposed conditional use does "not adversely affect . . . [t]he character
of the area affected"). We conclude that the environmental court never
held that the application did not meet this conditional use criterion.
Rather, the court held that the permit could not be granted because the
application violated the parking setback requirement, whether or not the
other general conditional use standards-including that relating to effect
on the character of the neighborhood-were met. See Weathersfield Zoning
Bylaws §§ 4.2.2 (requiring proposed conditional use to meet all applicable
general and special provisions of the zoning ordinance), 6.13.2 (small
enterprise parking lots "adjacent to residential uses shall be setback a
minimum of fifty (50) feet").
¶ 14. We note that in presenting their evidence, applicants
presented an alternative parking plan and asked the environmental court to
remand the case to the zoning board to consider it. Applicants did not
follow through with this proposal in their requests for findings and
conclusions in the environmental court or their appeal to this court. (FN4)
Nevertheless, they are free to pursue the alternative they developed by a
new submission to the zoning board either for a CUP, if they can comply
with current parking requirements, or a variance.
The environmental court decision denying the conditional use
application is affirmed.
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Dissenting
¶ 15. SKOGLUND, J, dissenting. I respectfully dissent. The
majority dismisses applicants' claim that the trial court mischaracterized
the property as a nonconforming use, observing that the trial court found
that its "status as a nonconforming use did not advantage the applicants,"
and that "any nonconforming preexisting use status would not eliminate the
need for compliance with the current ordinance because any use has been
discontinued for more than one year." Ante, ¶ 7. Applicants, however,
were not arguing for nonconforming use status, much less for any
"advantage" from such a designation. On the contrary, they were arguing
that the property was not a "nonconforming use," and therefore that the
one-year discontinuance of use was irrelevant under the ordinance. There
is no question, moreover, that the issue was critical to the trial court's
ruling. As the court itself explained, "[i]n short, the proposed store is
a nonconforming use," and "[t]his factor weighs heavily against the
granting of a conditional use permit, given the important goal of gradually
eliminating nonconforming uses."
¶ 16. The trial court's ruling was erroneous. Although we have
observed that the parallel state statute, 24 V.S.A. § 4408(a)(1), defines a
noncomplying structure as a nonconforming use, In re Stowe Club Highlands,
164 Vt. 272, 278, 668 A.2d 1271, 1276 (1995), the Town's bylaws clearly
differentiate between the two. Under the ordinance, a nonconforming use is
"[t]he use of structures or the use of land" which does not comply with
current regulations and which "may be continued indefinitely" unless
discontinued for one year. (Emphasis added.) A noncomplying structure is
separately defined as "[a] structure which does not comply with all
applicable regulations of the district" but which may be maintained or
repaired or "enlarged in any manner which does not increase the degree of
noncompliance."
¶ 17. The issue here involved a noncomplying structure rather than
a nonconforming use because the noncompliance was caused by a conflict
with the current off-street parking requirements, not by a land use
impermissible in the Village zoning district. See In re Stowe Club
Highlands, 164 Vt. at 278-79, 668 A.2d at 1276 (noting that under town
zoning bylaw which differentiated between noncomplying structure and
nonconforming use, the issue "involves a noncomplying structure, and not a
nonconforming use, because the nonconformity is caused by a violation of
setback requirements and not a land use impermissible in the zone
involved"). The fact that a small enterprise such as the proposed country
store is "permitted [only] upon granting of a Conditional Use Approval" in
the Village district does not render it a nonconforming use. See id. at
279 n.5, 668 A.2d at 1276 n.5 (where barn and proposed house were
"authorized or conditionally authorized uses" in the district where they
were located "there [was] no nonconforming use problem").
¶ 18. This interpretation is consistent with the Town's
interpretation of its own ordinance. See In re Kisiel, 172 Vt. 124, 133,
772 A.2d 135, 142 (2001) (in construing zoning ordinance we look to
interpretation by municipal bodies responsible for its implementation).
The zoning administrator testified at the hearing as follows:
Q: . . . [F]or the subject property, and it's use as a general
store, is it a non-conforming use, or is it a non-complying
structure; can you tell us?
A: Well, one of the first things the zoning board would do would
look at that and they would look at the table of district[s] and
uses, which is page five; look in the village zoning, which is
where the property is located. They would look for the use, a
retail store, which is what is being proposed, would come under
small enterprise. If you look under a conditional use [in the
ordinance] you'll see small enterprises listed. . . .
So therefore the use of a retail store would not be a
non-conforming use. To fall under that category, it would have to
be listed under uses not permitted.
Q: And that's not the case?
A: And that is not the case.
(Emphasis added.) Thus, in denying the conditional use permit, the trial
court erroneously relied on the general zoning goal of eliminating
nonconforming uses from districts where they are no longer permitted.
¶ 19. The majority is similarly mistaken in concluding that
off-street parking does not fall within the noncomplying structure
provision of the ordinance. The Weathersfield zoning administrator
testified that a noncomplying structure under the ordinance is "a structure
or part thereof that does not meet the items such as set-back, dimension,
off-street parking, [or] height." The administrator was then asked
point-blank whether the proposed store implicated the ordinance's provision
relating to nonconforming uses or noncomplying structures. The
administrator's response, part of which has already been quoted above,
continued as follows:
Q: So in the absence of it being classified, then, as a
nonconforming use, I believe you told us why, it is then
considered to be a non-complying structure?
A: That's correct.
The administrator went on to explain that the ordinance did not restrict
the continued use of the noncomplying structure, regardless of whether it
had been discontinued for over a year, so long as applicants did not
increase the degree of noncompliance.
¶ 20. The zoning administrator's explanation was cogent, and her
interpretation fully supports analysis of the parking requirement under the
noncomplying structure provision of the ordinance, rather than the
nonconforming use section. The latter, as noted, prohibits
re-establishment of a nonconforming use once it has been discontinued for
one year. The ordinance contains no such provision affecting noncomplying
structures, which-as the administrator explained-are limited only by the
requirement that they not be "enlarged in any manner" that would "increase
the degree of noncompliance." Thus, the building was effectively
grandfathered for purposes of compliance with the off-street parking
requirements unless the proposal "enlarged" the degree of noncompliance.
In this regard, there was testimony that store patrons in the past had
customarily parked in front of the store and had occasionally parked on the
side and in the rear to drop off recycling materials, that postal workers
and delivery trucks had regularly parked on the south side of the store
along the driveway adjacent to the Korbets, and that the owners had parked
in the rear.
¶ 21. With the designation of nine permanent spaces in the rear
lot, the plan approved by the planning commission and the Board modified
the former parking scheme, resulting in the trial court's finding that the
rear parking plan "would exceed any burden that existed under the prior
operation." Significantly, however, the court did not make findings as to
whether an alternative parking plan that called for only four spaces in the
rear lot which met the fifty-foot setback requirement from the Korbet
property would increase the degree of noncompliance. The court admitted
the alternative plan, over objection, based in part on applicants' argument
that the court could "send [the case] back down to the zoning board of
adjustment with instructions to consider that alternative plan as a
condition of a permit. I believe that is well within this Court's
authority to accomplish. And that's the purpose of our offering it."
¶ 22. Applicants were correct. We have held that notwithstanding
the environmental court's de novo standard of review, "a remand may be
appropriate . . . where the court is called upon to 'address[] new issues
never presented to the planning commission and on which interested persons
have not spoken in the local process.' " Timberlake Assocs. v. City of
Winooski, 170 Vt. 643, 644, 756 A.2d 774, 776 (2000) (mem.) (quoting In re
Maple Tree Place, 156 Vt. 494, 500, 594 A.2d 404, 407 (1991). Parking
became the critical issue in this case, and it was well within the court's
authority to admit the alternative plan. As this plan represents a
significant and viable alternative that does not appear to violate the
setback requirements of the bylaws, this Court should reverse the trial
court decision and remand the matter with directions to return the case to
the zoning board of adjustment for consideration of the alternative plan.
(FN5)
¶ 23. Finally, I am compelled to conclude that the trial court
misapplied the criterion relating to the store's impact on the character of
the area. The court found that although the Village is predominantly
residential in character, it contains several relatively low-impact
commercial uses, including a bed and breakfast inn, a garage, and a
barbershop. The testimony of the Village residents -including Susan
Korbet-was virtually uniform that the reopening of the store would have a
positive impact on the life of the Village. The court further found that
the store would not negatively impact Village traffic, nor was there any
evidence that it would generate other negative secondary effects in the
area. Nevertheless, the court found that this evidence was offset by Susan
Korbet's testimony that she had disliked the lack of privacy and noise
generated by delivery trucks, postal workers, and patrons parking or
driving in the driveway and rear lot adjacent to her property when the
store had been in operation. The court found that the reopening of the
store would have a negative impact on the Korbets. (FN6)
¶ 24. The trial court's conclusion is flawed in several respects.
First, there was no evidentiary basis to distinguish the amount of traffic
formerly generated by the post office, which has since moved, from that
attributable to the store. Furthermore, "[w]e have held that the adverse
effect test must be applied reasonably to prohibit only substantial and
material adverse effects," In re Miller, 170 Vt. 64, 69, 742 A.2d 1219,
1223 (1999), and that the "area affected" generally must consist of either
the entire zoning district or the local neighborhood, but cannot be limited
to one or two adjoining landowners. Id. at 70-71, 742 A.2d at 1224. Thus,
we have cautioned against the use of "general conditional use and
performance standards to resolve impacts on one specific residential
property. . . . [S]ite plan review, not conditional use review, is the
proper process to address such impacts." Id. at 71, 742 A.2d at 1225
(emphasis added). The record here shows that the Korbets had, in fact,
participated in the site plan review process, raised concerns about the
store's impact on their property, obtained several concessions including a
requested natural vegetative privacy fence, and failed to appeal the Town's
final approval. Indeed, the minutes of the Board's September 5, 2001,
meeting state that Peter Korbet had reviewed the site plan and "felt all
issues had been addressed and did not offer any suggestions for changes."
Thus, the court here erred in addressing these or other objections that the
Korbets should have explicitly raised with the planning commission and, if
dissatisfied, appealed to the environmental court. Site plan issues not
raised with the planning commission and preserved by appeal from its
decision should not be addressed through the "back door" of an appeal from
the issuance of a conditional use permit.
¶ 25. For all of the foregoing reasons, I would reverse the
judgment of the trial court, and remand for further proceedings consistent
with the views expressed herein. I am authorized to state that Justice
Reiber joins this dissent.
Dissenting: BY THE COURT:
________________________________ _______________________________________
Marilyn S. Skoglund, John A. Dooley, Associate Justice
Associate Justice
________________________________ _______________________________________
Paul L. Reiber, Associate Justice Denise R. Johnson, Associate Justice
______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. Under the zoning bylaws, the store was required to provide one parking
space for every four hundred square feet of commercial space.
Weathersfield Zoning Bylaws § 6.13.3(c). The store consists of 2800 square
feet and therefore needs seven commercial spaces. In addition, the bylaws
require two parking spaces per dwelling unit, resulting in a requirement of
four additional spaces for the rental unit and the owner's apartment within
the building, for a total of eleven required spaces. The original permit
application apparently accommodated thirteen spaces, including two in the
front of the store, but the site plan approved by the Town included eleven
spaces, nine in the rear and two on the sides.
FN2. The dissent has addressed this issue, although it is unnecessary to do
so. Because we do not believe that the dissent has accurately described
the state of the law, we respond in this footnote. The environmental
court's decision that a use that did not have a CUP or comply with all
aspects of a town's zoning bylaws was nonconforming is supported by our
opinion in In re Lashins, 174 Vt. 467, 470-71, 807 A.2d 420, 424 (2002),
which in turn relied upon the holding in Town of Brighton v. Griffin, 148
Vt. 264, 269, 532 A.2d 1292, 1294 (1987). To the extent that the brief and
vague footnote in In re Stowe Club Highlands, 164 Vt. 272, 279 n.5, 668 A.2d 1271, 1276 n.5 (1995), can be construed to the contrary, Lashins
clarified the law on this point and we follow that law here. The
environmental court did not err in rejecting the testimony of the zoning
administrator. The administrator's testimony purported to address a
question of law beyond her competence.
FN3. The zoning administrator first testified that the former store was a
noncomplying structure because it was not a noncomplying use. Later the
zoning administrator testified that any zoning parking setback requirements
do not apply because off-street parking is contained within the
noncomplying structure definition in 24 V.S.A. § 4407. The zoning
administrator was not attempting to interpret the term "noncomplying
structure" as used in the bylaws; instead she was relying on the statutory
definition. The court was not required to defer to this testimony as it
was a legal opinion, which the administrator was not qualified to give,
and, as discussed in ¶ 11, is incorrect.
FN4. Despite the total lack of preservation of this proposal, the dissent
argues that we should reverse the environmental court decision and direct
that court to remand the matter to the zoning board to consider the
alternative parking proposal. Applicants clearly waived any reliance on
the alternative parking plan by failing to formally request the remand or
make the plan a basis for relief in the proposed findings and conclusions.
See In re Lorentz, 2003 VT 40, ¶ 5, 175 Vt. 522, 824 A.2d 598 (mem.)
(refusing to consider arguments not contained in statement of questions on
appeal). They again waived any reliance on it by failing to present it to
this Court. Even if applicants preserved this proposal, we fail to see how
they are advantaged by a remand rather than a new submission to the zoning
board. As the dissent acknowledges, the proposal must be first presented
in the town review process with public notice to interested parties so they
can present their views. See Simendinger v. City of Barre, 171 Vt. 648,
652, 770 A.2d 888, 894 (2001) (mem.) (noting that environmental court
cannot consider issues not addressed at municipal board level); In re Maple
Tree Place, 156 Vt. at 500, 594 A.2d at 407.
FN5. Plaintiff's surveyor testified that he had created the alternative
parking plan in order to reduce the proposed number of parking spaces in
the rear lot to four, all of which complied with the fifty-foot setback
requirement from adjacent residential property. Testimony that the
building's former owners and that store patrons had occasionally parked in
the rear lot suggested that the four spaces would not tangibly increase the
pre-existing degree of noncompliance, although as noted the court did not
make specific findings in this regard. The alternative plan also called
for three commercial spaces in front of the store, a scheme that appears
to largely recreate the former practice of store patrons, although again
the court did not specifically address this issue.
FN6. The majority's assertion that the trial court "never held that this
conditional use standard was unmet," ante, ¶ 13, is not supported by the
record. The trial court carefully and explicitly addressed each of the
"factors listed in Section 4.2.2," which sets out the criteria for
"Conditional Uses." After finding that the store would not adversely
affect the traffic in the area, the court proceeded to consider the store's
impact on the "character" of the area. The court noted that although the
community as a whole would enjoy the benefits of the store, "the Korbets
would bear most of the negative impact," and the court observed that the
bylaws prohibit placing an "unfair burden on anyone." The unmistakable
implication of the court's findings is that the store's impact on one
neighboring landowner outweighed-in its view-the benefit to the community
as a whole, and this conclusion plainly contravenes our holding in In re
Miller, 170 Vt. 64, 69-71, 742 A.2d 1219, 1223-24 (1999).
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