In re Bailey

Annotate this Case

In re Bailey (2003-263); 178 Vt. 614; 883 A.2d 765

2005 VT 38A

[Filed 26-July-2005]

ENTRY ORDER

SUPREME COURT DOCKET NO. 2003-263

JULY TERM, 2005

In re Appeal of Richard Bailey } APPEALED FROM:
}
}
} Environmental Court
}
}
} DOCKET NO. 230-10-02 Vtec

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

In response to appellee's April 5, 2005 motion for reargument, this
Court's March 22, 2005 decision is amended by revising the language in the
last two sentences of paragraph 9 and adding a footnote to that paragraph.
The amended decision also includes Chief Justice Reiber's dissenting
statement that he would allow reargument. In all other respects, the
decision remains unchanged, and appellee's motion for reargument is denied.

Dissenting: BY THE COURT:

______________________________ _____________________________________
Paul L. Reiber, Chief Justice John A. Dooley, Associate Justice

_____________________________________
Denise R. Johnson, Associate Justice

_____________________________________
Marilyn S. Skoglund, Associate Justice

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ENTRY ORDER

2005 VT 38A

SUPREME COURT DOCKET NO. 2003-263

APRIL TERM, 2004

In re Appeal of Richard Bailey } APPEALED FROM:
}
}
} Environmental Court
}
}
} DOCKET NO. 230-10-02 Vtec

Trial Judge: Merideth Wright

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

¶ 1. Plaintiff Richard E. Bailey appeals from an environmental
court order affirming a decision by the Town of Arlington's Zoning Board of
Adjustment (Board) that granted a variance from the front and rear setback
requirements for an undersized land parcel owned by Black Locust
Development, LLC (applicant). Plaintiff contends that the court erred when
it included a strip of land which is used as a public highway, although
owned by applicant, in determining whether applicant's property qualifies
for treatment as a pre-existing small lot under 24 V.S.A. § 4406(1) and the
Arlington zoning ordinance. Plaintiff further argues that if the property
is a pre-existing small lot, applicant cannot demonstrate that it meets all
five of the requirements necessary to obtain a variance. We reverse.

¶ 2. The facts of this case are undisputed and can be summarized
as follows. Applicant owns a parcel of land on Route 7A adjacent to a U.S.
Post Office. The lot as deeded is approximately 8100 square feet in area
and has dimensions of 120' of frontage and 67 ½' of depth. The 67 ½'
dimension includes approximately 33 ½' of highway over which the State
holds a public easement for road travel. Without including the public
highway, the parcel is 34' deep and has an area of approximately 4080
square feet. During the 1970s, a 1770 square foot service station operated
on the disputed property. After the service station discontinued
operations, it was used by the then owner as a residence until it was
purchased by applicant in 1999. In the spring of 2000, applicant tore down
the former service station. Several months later, plaintiff purchased an
adjacent vacant parcel. Plaintiff purchased his lot for the purpose of
preserving undeveloped land in the Arlington area with the expectation that
applicant's land would remain undeveloped.

¶ 3. Applicant has entered into a purchase and sale agreement with
Frank A. Molgano contingent on the issuance of a zoning permit for his
proposed 640 square foot commercial building. The proposed building would
house a real estate office with four parking spaces. This lot is located
in Arlington's commercial residential zone. In order to allow development
in this zone, the town's zoning ordinance requires that a lot be at least ½
acre in size and allow for a front yard set-back of 25' and a rear yard
set-back of 15'-applicant's lot cannot meet these requirements.

¶ 4. The zoning ordinance allows certain preexisting undersized
lots to be developed:

Any lot in individual and separate non-affiliated ownership from
surrounding properties in existence on the effective date of this
Bylaw (August 28, 1973) 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 (1/8) acre in area with a minimum width or
depth dimension of forty (40) feet.

This ordinance provision is identical to 24 V.S.A. § 4406(1), which
requires its inclusion in every zoning ordinance in the state. See
Drumheller v. Shelburne Zoning Bd. of Adjustment, 155 Vt. 524, 527, 586 A.2d 1150, 1151 (1990). Applicant claimed the lot is covered by this
provision and, therefore, could be developed even though it did not meet
the minimum lot size requirement for the zone. He also sought a variance
from both the front and rear setback requirements.

¶ 5. At the Board hearing, plaintiff challenged both the status of
applicant's lot as a preexisting undersized lot under the ordinance and
applicant's variance request. Over plaintiff's objections, the Board
granted applicant's variance, after concluding that it did not have to meet
the minimum size requirement. Plaintiff appealed the Board's decision to
the environmental court.

¶ 6. Plaintiff argued in the environmental court that applicant's
lot did not meet the requirement of a preexisting undersized lot because it
was neither 1/8 acre in area nor 40' deep if the highway area was excluded
when calculating the lot size and depth. The environmental court rejected
plaintiff's argument that the area under the road should not be considered,
explaining that "[n]othing in the state statute [24 V.S.A. § 4406(1)] or
town ordinance requires that all the land in such an undersized lot be
useable land, or that it would in any way be practical actually to develop
the lot . . . the practical ability to develop the lot does not affect its
status as an existing small lot." The court also found that applicant
satisfied the variance criteria.

¶ 7. Plaintiff appeals the court's ruling, challenging the
decision to treat applicant's lot as a preexisting undersized lot and the
grant of the variance. We conclude that the area under the highway cannot
be included in the lot size calculation and therefore that the lot is not a
preexisting undersized lot as defined by the ordinance. We do not reach
whether the court erred when it determined that applicant met the variance
criteria.

¶ 8. The pre-existing undersized lot provision acts as a
grandfather clause allowing development of lots that do not meet a town's
minimum lot size requirements. In Lubinsky v. Fair Haven Zoning Board, 148
Vt. 47, 51, 527 A.2d 227, 229 (1987), we explained that the purpose of §
4406(1) is "to retain for usefulness pre-existing lots of satisfactory
size, even though they do not quite meet zoning limits as to size." It is
undisputed in this appeal that if the land under the Route 7A right of way
is counted, applicant's lot is a preexisting undersized lot under §
4406(1), but if the land is not included, applicant's lot is not so
protected. Thus, we must determine whether the statute and ordinance
contemplates the inclusion of land under a public highway when calculating
lot size. Essentially, we must determine the meaning of the word "lot."

¶ 9. In construing a statute we first look at the plain, ordinary
meaning of the language. State v. Baron, 2004 VT 20, ¶ 6, 176 Vt. 314,
848 A.2d 275. If the plain language of the statute "resolves the conflict
without doing violence to the legislative scheme, there is no need to go
further." Lubinsky, 148 Vt. at 49, 527 A.2d at 228. Ordinarily when we
review the environmental court's interpretation of a zoning ordinance, our
review is deferential, and we accept the court's construction unless it is
clearly erroneous, arbitrary, or capricious. In re Weeks, 167 Vt. 551,
554, 712 A.2d, 907, 909 (1998). In this case, however, the town did not
deviate from the statute. See In re Richards, 174 Vt. 416, 424-25, 819 A.2d 676, 683 (2002). Thus, the interpretation of the statute, 24 V.S.A. §
4406(1), controls. (FN1)

¶ 10. The Zoning Enabling Act does not contain a definition of
"lot." To the extent the environmental court construed the statute, it
held that the term "lot" does not require that land be useable. This is
consistent with our holding in Town of Castleton v. Fucci, 139 Vt. 598,
600-01, 431 A.2d 486, 488 (1981), that land under Neshobe Brook should be
included when calculating minimum lot size for purposes of § 4406(1).
Expanding this theory, the environmental court held that the land under the
highway would also be included in determining whether applicant's land
qualified as a preexisting undersized lot and held, therefore, that it met
the minimum size and depth requirements for such status.

¶ 11. A more relevant precedent is Wilcox v. Village of Manchester
Zoning Board of Adjustment, 159 Vt. 193, 616 A.2d 1137 (1992). In that
case, plaintiff owned three parcels of land. One portion of parcel 1 was
subject to a right-of-way benefitting a parcel not owned by plaintiff,
while the unburdened portion of parcel 1 was contiguous with parcel 3. 159
Vt. at 195, 616 A.2d at 1138. Plaintiff argued that parcel 1 was in
"individual and separate and non-affiliated ownership" within the meaning
of 24 V.S.A. § 4406(1). In contrast, the Village contended that the
right-of-way did not interfere with the contiguous nature of the parcels
and therefore the parcels constituted a single lot. The trial court agreed
with the Village, and granted its summary judgment motion. On review, we
explained that "a right-of-way which, because of location and function,
effectively separates the parcels that it physically connects, so that they
cannot be used in the ordinary manner as a single 'lot,' may render those
parcels separate for purposes of 24 V.S.A. § 4406(1)." Id. at 197, 616 A.2d at 1139.

¶ 12. We remanded Wilcox for factual findings regarding the nature
and use of the right-of-way recognizing that right-of-ways can range from
well-traveled roadways to mere lines on a plan. Id. at 198, 616 A.2d at
1140. We did explain, however, that a well-traveled roadway would
effectively separate the parcels for purposes of § 4406(1). Id.
Underpinning this assertion is the notion that a well-traveled roadway
cannot be considered part of a "lot." The Court viewed the right-of-way
and the lot as separate physical entities and was unwilling to see a true
right-of-way as part of a "lot."

¶ 13. Wilcox relies on three cases from other jurisdictions, and
they are particularly relevant here. The most important is Loveladies
Property Owners Assoc. Inc. v. Barnegat City Service Co., which squarely
holds that the land area under a road, public or private, cannot be
included in determining whether a lot meets minimum size requirements. 159 A.2d 417, 424 (N.J. Super. Ct. 1960) ("[U]nless otherwise specifically
provided, the meaning of the word 'lot' requires, in order to preserve the
integrity and purpose of the zoning scheme, the exclusion of access
easements, whether public or private."). The court explained that
including roads in calculating lot sizes "would be antithetical to the
rationale justifying the requirement of open lot spaces in zoning
regulations." Id. at 422. It relied on earlier cases in Indiana and
California that held that a lot did not include the abutting street. Id.
See Montgomery v. Hinds, 33 N.E. 1100, 1101 (Ind. 1893) (stating that "lot"
and "street" are two distinct terms and that "lot" is the "platted
territory" set apart for individual use and occupancy while "street" is the
area set apart for use by the public); Earl v. Dutour, 183 P. 438, 438
(Cal. 1919) ("[W]e are of the opinion that the word 'lot,' as generally and
customarily used does not include such portion of the street.").

¶ 14. The other two, Bankers Trust Co. v. Zoning Bd. of Appeals,
345 A.2d 544 (Conn. 1974) and Sommers v. Mayor & City Council of Baltimore,
135 A.2d 625 (Md. 1957), also support plaintiff's position here although
they involved easements rather than public streets. Sommers held that
because the public had regularly used an alley, the land under the easement
for the alley could not be considered part of the lot to meet minimum area
requirements. Sommers, 135 A.2d at 627. In Bankers Trust Co., the Court
held that a public right of way, over land owned by the owner of the land
on either side of the right of way, prevented the lots on either side of
the right of way from being merged for purposes of a minimum lot size
requirement. Bankers Trust Co., 345 A.2d at 549.

¶ 15. The three cases cited in Wilcox are representative of more
recent decisions. See Mudge v. Precinct of Haverhill Corner, 587 A.2d 603,
606-07 (N.H. 1991) (excluding land contained in streets, public or private,
which give access to lots); Mall, Inc. v. City of Seattle, 739 P.2d 668,
671 (Wash. 1991) (en banc) (holding same). Thus, a leading zoning treatise
states: "In computing the size of the lots, land contained in streets,
public or private, which give access to the lot is excluded." 3 E.
Zeigler, Rathkopf's The Law of Zoning and Planning § 51:17 (4th ed. 2004).

¶ 16. We recognize that the decisions relied upon in Wilcox in turn
rely upon definitions of "lot" contained in applicable zoning ordinances.
They demonstrate, however, the similarity of the definitions of the term
contained in zoning ordinances. The definition in the Arlington zoning
ordinance, although not controlling of the meaning of § 4406(1), shows the
similarity. Under the ordinance, "lot" is:

Land occupied or designed to be occupied by a building and its
accessory buildings, by a dwelling group and its accessory
buildings, together with such open space as is required under the
provisions of this Bylaw for a lot in the district in which this
land is located, and having its principal frontage on a street or
highway, or such other means of access as may be determined by law
to be adequate as a condition of issuance of a permit to build on
such land.

This definition is very close to that in the cases from other
jurisdictions. See Loveladies, 159 A.2d at 421; Sommers, 135 A.2d at 627;
Bankers Trust Co., 345 A.2d at 546 n.4. Anderson's American Law of Zoning
defines "lot" as:

a parcel of land occupied by one building and the accessory
buildings or uses customarily incident to it, including such open
spaces as are arranged and designed to be used in connection with
such buildings.

K. Young, Anderson's American Law of Zoning § 18.15 (4th ed. 1996). Under
any of these definitions, land can be included in the lot size only if it
is under buildings or represents open space or incidental uses.

¶ 17. We cannot consider a public highway to be a use incidental to
the primary use on an abutting property. Nor can it be considered open
space. See Bd. of County Comm'rs v. City of Aurora, 62 P.3d 1049, 1052-53
(Colo. Ct. App. 2002) (holding that a roadway could not be deemed open
space because it has been improved by grading and surfacing); Bankers Trust
Co., 345 A.2d at 549 (concluding that an unimproved roadway could not fall
under definition of "open space"); Loveladies, 159 A.2d at 422 (explaining
that private ways cannot be included as open spaces of a lot) . We do not
disagree with the environmental court's rationale that the practical
inability to develop land does not require its exclusion from a "lot"
within the meaning of the statute. For example, land under Neshobe Brook,
although not easily developed, is included in the minimum lot size
requirement for purposes of the statute. Town of Castleton, 139 Vt. at
601, 431 A.2d at 488. In contrast, land under a road is already developed
and for a use incompatible with other uses by the owner. We cannot
conclude that it should be included in the owner's lot for determining
compliance with § 4406(1).

¶ 18. Because we conclude that the environmental court erred in
finding applicant's lot to be a preexisting undersized lot which applicant
has a right to develop under 24 V.S.A. § 4406(1), we do not reach its
further holding that applicant is entitled to a variance from the setback
requirements. Nor do we consider whether applicant might qualify for a
further variance from the minimum lot size requirement.

Reversed.

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Dissenting

REIBER, C.J., dissenting. Applicant requests reargument pursuant to
Vermont Rule of Appellate Procedure 40. Rule 40 requires the movant to
state "points of law or fact, presented in the briefs upon the original
argument," which the movant contends the court overlooked or
misapprehended. In the proceedings below, the Town of Arlington construed
the local ordinance to provide for less restrictive development. The
environmental court concluded that applicant's lot qualified as an
existing small lot under the zoning bylaw. We reversed based on the state
statute, 24 V.S.A. § 4406(1).

Applicant, Black Locust Development, LLC, argues that we overlooked or
misapprehended issues before us. Applicant contends that the issue before
us concerned interpretation of a local ordinance, and not the state
statute. Applicant has brought to the Court's attention a recent amendment
to the controlling statute that permits local bylaws to be "less
restrictive of development of existing small lots." 24 V.S.A. § 4412(2)(C)
(effective July 1, 2004). This amendment became effective after the
parties briefed the issues and argued before this Court. The amendment
demonstrates the Legislature's intent to provide towns with more control
over local development.

In light of the amendment, we should allow the parties to present
argument on: (1) whether the amendment applies retroactively; and (2) if
the amendment applies to this case, how the amendment changes the analysis
of the existing small lot statute.

BY THE COURT:
Dissenting:

__________________________________ ______________________________________
Paul L. Reiber, Associate Justice John A. Dooley, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

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Footnotes

Note: Chief Justice Amestoy sat for oral argument but did not
participate in this decision.

FN1. In its motion for reargument, applicant points out that 24 V.S.A. §
4406(1) was amended effective July 1, 2004 to include a proviso stating
that the statute "shall not be construed to prohibit a bylaw that is less
restrictive of development of existing small lots." 24 V.S.A. §
4412(2)(C); see 2003, No. 115 (Adj. Sess.), § 119(c) (repealing 24 V.S.A.
§§ 4404-4409) and § 95 (replacing 24 V.S.A. § 4601(1) with 24 V.S.A. §
4412(2)). According to applicant, the proviso abrogated this Court's
earlier holding that § 4406(1) controls over a conflicting local zoning
ordinance, see In re Richards, 174 Vt. 416, 424-25, 819 A.2d 676, 683
(2002) ("Where our Legislature has spoken clearly about the circumstances
under which 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."), and thus we erred in this case by deferring
to the language of the statute rather than the environmental court's
interpretation of the local ordinance. We find this argument unavailing.
The town in this case adopted the language of the statute verbatim and
obviously did not intend to create an ordinance that was less restrictive
than the statute. This is not surprising considering that the proviso
applicant relies upon in his motion to reargue did not become law until
after this case was argued on appeal-and long after the town adopted the
ordinance in question. Further, applicant does not even argue, let alone
demonstrate, that the proviso should apply retroactively in this case. But
even assuming that it did, the interpretation of the statute would still
control because, as noted, the town simply adopted the statute verbatim.

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