In re Richards

Annotate this Case
In re Richards (2003-543); 178 Vt. 478; 872 A.2d 315

2005 VT  23

[Filed 09-Feb-2005]

                                 ENTRY ORDER

                                 2005 VT  23

                      SUPREME COURT DOCKET NO. 2003-543

                             OCTOBER TERM, 2004

  In re Appeal of Stuart Richards      }	APPEALED FROM:
                                       }	Environmental Court
                                       }	DOCKET NO. 236-12-99 Vtec

                                                Trial Judge: Merideth Wright

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

       ¶  1.  This is the second appeal in litigation between neighbors
  Stuart Richards and Paul Nowicki concerning Nowicki's desire to build a
  house on 84 Elm Street in the Town of Norwich. In this appeal, Richards
  claims the environmental court erred by concluding that 84 Elm Street and
  an adjoining parcel Nowicki owns are two separate lots for zoning purposes
  because a right-of-way providing access to Richards's property divides
  them.  We reverse. 

       ¶  2.   In 1996, Nowicki bought 84 Elm Street and an adjoining
  parcel, 76 Elm Street, from an individual who had held title to both
  parcels since 1967.  Richards and his wife live behind 76 Elm Street and
  must access their property by a right-of-way over 84 Elm Street along the
  border with 76 Elm Street.  The 76 Elm Street parcel had been improved with
  a house when Nowicki purchased the property, but 84 Elm Street was an empty
  lot.  Nowicki sought a building permit to construct a house for his mother
  on 84 Elm Street.  Richards opposed the permit, and the present litigation
       ¶  3.  Richards continued his challenge to the building permit for
  84 Elm Street all the way to this Court.  See In re Richards, 174 Vt. 416,
  819 A.2d 676 (2002).  In his first appeal, Richards argued that Nowicki
  could not legally develop the 84 Elm Street property because the parcel had
  legally merged with 76 Elm Street in 1981 when the town adopted zoning
  regulations establishing a minimum lot size of 20,000 square feet.  The 76
  Elm Street parcel did not meet that minimum size requirement, and therefore
  it merged with 84 Elm Street to form one conforming lot.  Once merged,
  Richards argued, Nowicki could not develop the parcels separately without
  violating the town's minimum lot size ordinance.  This Court agreed with
  Richards, concluding that 84 Elm Street could not be developed separately
  because doing so would leave the 76 Elm Street parcel nonconforming under
  the zoning ordinance.  Id. at 420, 819 A.2d  at 679.  We explained that the
  state's small lot statute, 24 V.S.A. § 4406(1), did not protect 76 Elm
  Street as an undersized lot because of the unified ownership of the
  properties since 1967:

    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 [76 Elm Street] separately from [84
    Elm Street].   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.  

  Id. at 420-21, 819 A.2d  at 680.  Notwithstanding that conclusion, we
  remanded the case to the environmental court so that it could consider, in
  the first instance, Nowicki's argument that the right-of-way between 76 and
  84 Elm Street effectively separated the parcels, preventing the merger that
  otherwise took place by operation of law in 1981.  Id. at 426, 819 A.2d  at
  684; see Wilcox v. Vill. of Manchester Zoning Bd. of Adjustment, 159 Vt.
  193, 197, 616 A.2d 1137, 1139 (1992) (holding that, in some circumstances,
  a right-of-way "because of location and function" may separate two parcels
  so that they cannot be used as one lot).

       ¶  4.  The court took evidence on the issue and rendered the
  decision that forms the basis of  this appeal.  In its order, the court
  found that 84 Elm Street and Richards's property are bounded on one side by
  the Blood Brook.  The 84 Elm Street boundary with Blood Brook is about
  eighteen feet lower in elevation than 76 Elm Street, and both properties
  slope away from Elm Street down towards Richards's land.  The court found
  that the right-of-way at issue is a twenty-foot-wide private road or
  driveway used by Richards and his wife for ingress and egress to their
  property behind 76 Elm Street.  The right-of-way has been used to access
  the rear basement entrance of 76 Elm Street as well.  After purchasing the
  property, Nowicki regraded the right-of-way by removing a hump that
  impaired the view of Elm Street from Richards's property at the end of the
  right-of-way.  Nowicki also installed a three-foot-high retaining wall
  running alongside the right-of-way from Elm Street to the back of the house
  on 76 Elm Street.  The environmental court concluded that the parcels had
  not merged due to the right-of-way, reasoning:

    [A]lthough the right-of-way is private, these properties are
    equivalent to those at the end of and flanking the end of a short
    dead-end village street.  While a person capable of walking and of
    going up and down steps or a slope would be able to cross from the
    76 Elm Street parcel onto the 84 Elm Street parcel, or vice-versa,
    it is not possible to use the two parcels as a single parcel,
    primarily because the owners of those two parcels cannot block the
    use of the right-of-way by the owners of [Richards's] parcel.  The
    right-of-way occupies the entire adjacent boundary; that is, it is
    not possible to cross from the 76 Elm Street parcel onto the 84
    Elm Street parcel without crossing the right-of-way. . . . While
    the 84 Elm Street parcel could have been used as a single lot if
    it had been in common ownership with [Richards's] property, it
    cannot be used as a single lot in common ownership with the 76 Elm
    Street lot. 

  The court emphasized that Richards's property had numerous potential uses
  under the town's zoning ordinance, including a day care center, a small
  group home, a home occupation, or a two-family residence.  The potential
  for Richards to use the right-of-way so intensively prevented the two lots
  from merging.  Thus, the court concluded, Nowicki could develop the two
  lots separately.  This appeal followed.

       ¶  5.  On appeal, Richards argues that the environmental court's
  findings do not support its conclusion that Nowicki's two Elm Street
  parcels had not merged.  According to Richards, upholding the environmental
  court's decision here would defeat the Legislature's intent to limit
  nonconforming uses of property to uses existing prior to the effective date
  of zoning.  Because Richards does not contest the findings upon which the
  environmental court's decision rests, we review the court's legal
  conclusions using a nondeferential and plenary standard.  Catamount Slate
  Prods., Inc. v. Sheldon, 2003 VT 112, ¶ 14, 845 A.2d 324.

       ¶  6.  At issue here is the impact of the state's small lot statute,
  24 V.S.A. § 4406(1), to property divided by a right-of-way that was held in
  common ownership at the time zoning became effective in the Town of
  Norwich.  The statute exempts from the town's minimum lot size regulation
  any property held in separate and unaffiliated ownership from "surrounding
  properties" on the effective date of a town's minimum size zoning
  regulation.  Richards, 174 Vt. at 419-20, 819 A.2d  at 678-79.  Adjoining
  property held in common ownership on the effective date of zoning is deemed
  merged by operation of law under the statute because one goal of zoning is
  to phase out nonconforming uses, including undersize lots.  Id.; Drumheller
  v. Shelburne Zoning Bd. of Adjustment, 155 Vt. 524, 529, 586 A.2d 1150,
  1152 (1990).  Once merged, the property may not be developed in a manner
  that would re-create the nonconforming use.  Drumheller, 155 Vt. at 529-30,
  586 A.2d  at 1152.  

       ¶  7.  Although § 4406(1) establishes a bright line rule for the
  merger of adjoining lots held in common ownership, there are limited
  circumstances under which the bright line rule may not apply.  In Wilcox,
  this Court explained that contiguity "is a strong indicator that two lots
  should not be deemed separate within the meaning of § 4406(1)," but noted
  that contiguity is not the only factor.  159 Vt. at 197, 616 A.2d  at 1139. 
  Wilcox held that, depending on its location and function, a right-of-way
  could separate a piece of property so that it cannot be used in the
  ordinary manner as a single lot.  Id.  In those circumstances, § 4406(1)
  would not consider the properties adjoining and no merger would occur.  Id. 
  The Court cautioned, however, that while contiguity does not "always
  equal[] unity," the existence of a right-of-way between two parcels does
  not always mean the parcels are separate.  Id. at 198, 616 A.2d  at 1140. 
  We noted that:

    The term "right-of-way" on a deed is traditionally construed as an
    easement, absent additional descriptive language.  However, a
    right-of-way could be a well-travelled road, or simply lines on a
    plan that pose few practical barriers to enjoyment of the property
    as a single parcel.

  Id. (citation omitted).  The Court concluded by emphasizing the "strong
  legislative intent to phase out nonconforming uses" and its expectation
  that the Wilcox holding would not "invite claims of separate-lot status
  based solely on the configuration of a lot as depicted on a deed."  Id.  

       ¶  8.  Wilcox did not elaborate on how a trial court must analyze a
  claim of non-merger due to the existence of a right-of-way.  Section
  4406(1) and the cases interpreting it establish, however, that the focus
  must be on the circumstances existing at the time zoning regulation became
  effective because the only property entitled to small lot protection is
  property held in individual and unaffiliated ownership on the effective
  date of zoning.  See Richards, 174 Vt. at 420, 819 A.2d  at 679 (explaining
  that the small lot statute applied only if Nowicki showed that his two
  parcels were in separate, individual, and non-affiliated ownership in 1981
  when Norwich adopted the 20,000 square foot minimum lot size ordinance); 3
  Rathkopf, The Law of Zoning and Planning § 49:13 (1997) (explaining that
  when dealing with substandard lots, "the point of reference is the
  effective date of the bylaw").  Unless the zoning ordinance provides
  otherwise, small lots held in unaffiliated and separate ownership on the
  effective date of zoning regulation do not lose their protected status if,
  subsequent to the effective date of zoning, they come into common
  ownership.  In re Weeks, 167 Vt. 551, 555, 712 A.2d 907, 909 (1998). 
  Conversely, once two parcels merge by operation of law, they remain so
  notwithstanding a subsequent owner's efforts or desire to separate them for
  development.  Drumheller, 155 Vt. at 529-30, 586 A.2d  at 1152.  Thus, in
  this case, either the adjoining parcels merged because they were held in
  common ownership in 1981 as we held in the earlier appeal, or they did not
  merge at that time because the location and function of the right-of-way
  rendered the two parcels functionally separate and distinct. 

       ¶  9.  Nowicki had the burden "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."  Richards,
  174 Vt. at 420, 819 A.2d  at 679.  His evidence, however, related
  exclusively to the present and potential uses of the right-of-way, and the
  environmental court's analysis was deficient in relying on this evidence. 
  We are left then with only the impediments to overall use of the lots that
  flow from the presence of a right-of-way.  See Restatement (Third) of
  Prop.: Servitudes § 4.9 (2004) (outlining servient estate owner's right to
  use property burdened by a servitude).  Nowicki cannot block the
  right-of-way by building a structure on it; he cannot fence his
  property-for example, to keep animals on it-because the fence would
  obstruct the right-of-way.  If we were to hold that these impediments alone
  were sufficient to prevent merger in 1981, then the existence of a
  right-of-way would always prevent merger, a conclusion we rejected in
  Wilcox.  159 Vt. at 197-98, 616 A.2d  at 1140.
       ¶  10.  The impediments do not prevent use of the property as one lot
  in many ways.  For example, in Weeks, owners of a preexisting small lot
  purchased a second adjoining lot on which they "maintained a garden, parked
  their mobile home, and built a garage for storage."  167 Vt. at 552, 712 A.2d  at 908.  Thus, 76 and 84 Elm Street can be used together in virtually
  any way a primary residence can be used with surrounding land.  It is not
  uncommon in Vermont that uses of land, for example, for a garden, are
  separated from the residence by a driveway.

       ¶  11.  Nowicki argues that the environmental court correctly
  determined that the two parcels did not merge because Richards's actual and
  potential use of the right-of-way impairs his ability to enjoy his property
  as a single lot.  Again, the present and potential use of the right-of-way
  cannot determine whether merger occurred in 1981 when the town adopted the
  20,000 square foot minimum lot size.  The Wilcox exception to merger asks
  the court to look at the function and location of the right-of-way to
  determine if it effectively prevents the use of the property as a single
  lot.  Here, the right-of-way functions as a driveway to serve a single
  residence.  Although it divides the 76 and 84 Elm Street parcels, it is
  apparent from the record that the right-of-way's location renders the
  configuration of the merged lot consistent with the configuration of many
  single lots with driveways that separate one part of the lot from another.  

       ¶  12.    We conclude that the environmental court's findings do not
  support its conclusion because the findings do not address the relevant
  inquiry under Wilcox as of 1981, and the use of a right-of-way as a
  driveway does not alone make the property on one side of the driveway
  separate from that on the other side.  Thus, the 76 Elm Street and 84 Elm
  Street properties merged to form a single conforming lot in 1981, and, as
  we held in our first decision, the development of 84 Elm Street would leave
  76 Elm Street nonconforming in violation of the Norwich zoning ordinance. 


                                       BY THE COURT:

                                       John A. Dooley, Associate Justice

                                       Denise R. Johnson, Associate Justice

                                       Marilyn S. Skoglund, Associate Justice

                                       Paul L. Reiber, Associate Justice

                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned