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


                                 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

       ¶  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.



       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:

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

                                       Denise R. Johnson, Associate Justice
                                       Marilyn S. Skoglund, Associate Justice


       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.