In re Wesco, Inc.
Annotate this Case
In re Appeal of Wesco, Inc. (2005-138); 180 Vt. 520; 904 A.2d 1145
2006 VT 52
[Filed 12-Jun-2006]
ENTRY ORDER
2006 VT 52
SUPREME COURT DOCKET NO. 2005-138
OCTOBER TERM, 2005
In re Appeal of Wesco, Inc. } APPEALED FROM:
}
}
} Environmental Court
}
}
} DOCKET NO. 209-12-97 Vtec
Trial Judge: Merideth Wright
In the above-entitled cause, the Clerk will enter:
¶ 1. The City of Barre appeals from decisions of the Vermont
Environmental Court granting permits to Wesco, Inc. to enable it to convert
a full-service gasoline station, with automobile repair service, to a
convenience store and self-service gasoline operation. The City argues
that the court's decisions are inconsistent: (1) with an earlier decision
of this Court providing that the development proposals were modifications
of a preexisting nonconforming use into another nonconforming use; (2) with
24 V.S.A. § 4406(1) because Wesco seeks to both develop a preexisting
undersized lot and do so with a conditional use permit; (3) with the Barre
zoning ordinance which prohibits increased use of a noncomplying structure;
(4) with 24 V.S.A. § 4408(b) with respect to the discontinuance of
nonconforming uses; (5) with the Barre zoning ordinance by allowing an
additional structure-a canopy over the gas pumps-in a setback area; and (6)
with the requirement for conditional use approval that the court consider
the master plan and the economic plan. We conclude that the court acted
within its discretion on each of these issues and affirm.
¶ 2. This case involves an eleven-year conflict over Wesco's plan to
convert an existing gasoline service and repair station at 169 Washington
Street into a convenience store that sells gasoline. In 2001, this Court
decided some of the issues that had emerged, Simendinger v. City of Barre,
171 Vt. 648, 770 A.2d 888 (2001) (mem.), and remanded the case to the
Environmental Court for further action. That decision concluded in Wesco's
favor the first of three positive rulings that were required for the
project-approval from the planning commission, or the Environmental Court
on appeal from the planning commission, "under specific criteria for
nonconforming or conditional uses in a planned residential district." Id.
at 648, 770 A.2d at 890. This left two other necessary approvals: (1)
approval for the conditional use by the zoning board of adjustment, or the
Environmental Court on appeal from the zoning board; and (2) site plan
approval by the planning commission or the Environmental Court on appeal
from the planning commission. (FN1) On these approvals, this Court held
that the Environmental Court acted prematurely in granting conditional use
and site plan approval before these issues were addressed on the merits by
the zoning board and planning commission respectively. Id. at 652, 770 A.2d at 894.
¶ 3. We did, however, reach the merits of the Environmental
Court's conditional use review in one respect because the decisions
involved a determination of how the development proposal should be
considered under the Barre zoning ordinance. The Environmental Court ruled
that the proposal involved a modification of a gasoline station-a use
prohibited in the applicable district under the ordinance but preexisting
the zoning scheme-into a neighborhood grocery store-a use conditionally
permitted in the district. In order to reach this conclusion, the court
had to account for the fact that Wesco would still sell gasoline. It did
so by accepting Wesco's argument based on its proposal to replace the four
preexisting gas pumps with one "pump" that distributes gasoline through
four outlets. Because the Barre ordinance defines a "gasoline station" as
having more than one pump or dispenser, Wesco argued, and the court
accepted, that with the proposed equipment the development would no longer
be a gasoline station. Because it was not a gasoline station, the court
ruled it could be a neighborhood grocery store that could be approved as a
conditional use.
¶ 4. We rejected the Environmental Court's construction of the
ordinance as applied to the development proposal. We ruled that despite
the change in equipment to dispense the gasoline, the proposal still
involved a gasoline station. Id. at 651, 770 A.2d at 893. Thus, we held
that the proposal could not be viewed as involving only a neighborhood
grocery store: "Accordingly, we conclude that the court erred in
evaluating the proposal as a conditional-use neighborhood grocery store,
rather than as a proposal to alter a preexisting nonconforming service and
gasoline station to another nonconforming use within a planned residential
district." Id.
¶ 5. On remand, the Environmental Court then remanded to the Barre
zoning board and planning commission to remedy the procedural error. When
these boards again denied conditional use and site plan approval, Wesco
again appealed, and the court again reversed each decision. The court
responded to this Court's decision on the nature of review by holding that
the proposal involved two separate uses on the same lot and that multiple
uses are allowed by the Barre zoning ordinance. The first use is the
gasoline station, which is a preexisting nonconforming use that Wesco's
development proposal would modify. The second use is the convenience store
which is a neighborhood grocery store that can be approved as a conditional
use in the district. Thus, the court held that if the two separate uses
each met the applicable zoning requirements, the overall development
proposal could be approved. It went on to approve the development
proposal, with conditions, as discussed below.
¶ 6. The City challenges the court's power to approve the
development proposal on seven grounds. First, the City argues that the
Environmental Court's decision is inconsistent with our decision, which did
not separate the uses between gasoline sales and the sale of food items and
related products in the convenience store. In response, Wesco argues that
we should follow the approach of the Environmental Court or, alternatively,
rule that the proposal still involves only a gasoline station so that no
permit is needed.
¶ 7. The Environmental Court dealt with the alleged inconsistency
between our earlier decision and its view of the proper construction of the
ordinance:
Much confusion appears to have resulted from both parties'
unstated assumption that only one use may be located on the lot in
question. However, unlike many towns' zoning regulations, nothing
in the Barre City zoning regulations limits the use of a lot to a
single use category. . . .
. . . .
The parties did not have the occasion to discuss or point out this
unusual feature of the Barre City zoning regulations in their
presentations to the Vermont Supreme Court that resulted in the
Supreme Court's memorandum decision in Simendinger v. City of
Barre, 171 Vt. 648 (2001), in which the Court stated that the
Environmental Court "erred in evaluating the proposal as a
conditional use neighborhood grocery store, rather than as a
proposal to alter a preexisting nonconforming service and gasoline
station to another nonconforming use within a planned residential
district." (Emphasis added.) In fact, the proposal must be
evaluated both as a conditional use neighborhood grocery store (in
an existing nonconforming building) and as a proposal to alter a
preexisting nonconforming service and gasoline station to another
nonconforming use.
We defer to the Environmental Court's interpretation of a zoning ordinance
"unless it is clearly erroneous, arbitrary, or capricious." In re Cowan,
2005 VT 126, ¶ 7, 16 Vt. L. W. 403, 892 A.2d 207.
¶ 8. Although the City debates the application of the court's
analysis to this case, it does not debate the general proposition that the
Barre ordinance generally allows multiple uses on a single lot as long as
each of the uses complies with the ordinance. Thus, we are pointed to no
part of the ordinance that is inconsistent with the court's generalization,
and we have found none. We do not find the court's construction
inconsistent with our holding in Simendinger, which rejected the court's
earlier holding that the Wesco proposal could be evaluated solely as a
neighborhood grocery store use under the applicable conditional use
standards. We cannot find the court's construction "clearly erroneous,
arbitrary, or capricious." In re Cowan, 2005 VT 26, ¶ 7.
¶ 9. The City argues, however, that the court's generalization
that multiple uses can be allowed does not apply here because the ordinance
prohibits adding gasoline sales to other retail uses. This argument is
based on the ordinance's definition of retail store:
RETAIL STORE: Customary use of enclosed restaurant, cafe, shop and
store for the sale of goods at retail, personal service shop and
department store, excluding any drive-up service, freestanding
retail stand, gasoline service and motor vehicle repair service,
new and used car sales and service, trailer and mobile home sales
and service.
Barre Zoning Ordinance § 5.2.04(a). The City argues that this definition
means that the ordinance "prohibits the sale of gasoline at retail
establishments." The City reaches that conclusion based on the following
logic: (1) under the ordinance, the only use the convenience store can fit
within is as a neighborhood grocery store; (2) a neighborhood grocery store
is a retail store as defined above; (3) under the definition, a retail
store cannot sell gasoline.
¶ 10. We note that the City is relying only on a definition of a
retail store that nowhere precludes the uses excluded from the retail store
definition. Although we agree with steps (1) and (2) of the logic of the
City's argument, step (3) is debatable. On this third step, the
Environmental Court reached an alternative construction of the effect of
the definition of a retail store. The court held that the exclusions from
the definition are present because external components-sale of gasoline,
drive-up service, etc.-are outside the "enclosed" store and require
separate approval. Under this construction, a retail store can sell
gasoline, as long as that sale is permitted as a second use. We find the
court's construction of the ordinance more persuasive and affirm it within
the standard of review.
¶ 11. Second, the City argues that because the development
proposals involve an undersized lot, they cannot be implemented under 24
V.S.A. § 4406(1) as interpreted in Lubinsky v. Fair Haven Zoning Bd., 148
Vt. 47, 527 A.2d 227 (1986). The factual basis of the claim is that the
lot is approximately 16,000 square feet in area and the minimum lot size in
the zoning district is 80,000 square feet. Wesco asserts, and the
Environmental Court agreed, that its right to develop the undersized lot is
protected by § 5.1.05(3) of the Barre Zoning Ordinance. Section 5.1.05
provides:
Any parcel of land in individual and separate nonaffiliated
ownership from surrounding properties may be developed for the
purposes permitted in the district in which it is located even
though not conforming to minimum lot size requirement:
(1) If the parcel is not less than one-eighth of an acre in area
with a minimum width and depth dimension of forty feet; or
(2) If the parcel could have been developed under the Municipal
Zoning Ordinance of the City of Barre, which preceded these
regulations, for the purposes permitted in the district in which
it is located; or
(3) If a nonconforming structure or noncomplying building is
situated on the parcel, provided that the coverage of the building
is not enlarged.
The City responds by attacking its own ordinance, contending that
subsection (3) is inconsistent with the state authorizing statute, 24
V.S.A. § 4406(1), and, therefore, cannot serve as the basis for its
proposals. We assume, for the purposes of this case, that the city may
challenge its municipal regulations in this proceeding. The statute, as it
existed at the time of the application in this case, was substantially
similar to § 5.1.05(3) of the ordinance, except that subsection (3) of the
ordinance is not reflected in the statute. (FN2) That difference, and our
decision in Lubinsky, form the basis of the City's argument.
¶ 12. The City argues that the statute protects the right to
develop only an undeveloped undersized lot and a municipality is prohibited
from providing greater protection-here, the right to further develop a
developed undersized lot. Thus, the City quotes the following language
from Lubinsky:
There is no disagreement that a basic purpose of 24 V.S.A. §
4406(1) is to provide that lots of sufficient size whose existence
predates the enactment of zoning but whose size does not quite
comply with the new zoning law will not go to waste unused, but
must be allowed to be developed for purposes consistent with uses
permitted in the zone where located. It seems plain that the aim
is to allow the stated use of lots already existing and not yet
developed or built upon.
. . . .
In any event, given the limited purpose of qualifying such lots
for basic use within the zoning division, and weighing the
disarray to be brought about by unlimited application of the
language, we hold that the statutory function is exhausted when it
brings the "small lot" within the zone as a basic unit, and does
not continue to operate to give such lots expanded privileges not
available to standard lots in the division.
Lubinsky, 148 Vt. at 50-51, 527 A.2d at 228-29. The City then relies upon
In re Richards, 174 Vt. 416, 423, 819 A.2d 676, 681-82 (2002), for the
proposition that municipal zoning regulation with respect to undersized
lots cannot be either more permissive or more restrictive then the
regulation required by the statute. (FN3)
¶ 13. Although we understand the components of the City's argument,
we do not believe that they apply to this case. Lubinsky dealt with a
density limitation that required 10,000 feet of lot area per family
dwelling and a single-family dwelling that the owner sought to convert to a
two-family dwelling. Because the lot contained fewer than 20,000 square
feet, the owner sought to rely on the undersized lot statute to override
the density limitation in the ordinance. The Court recognized that
acceptance of the owner's argument would prevent any density limitation for
undersized lots. (FN4) Thus, it held that once the statute brought "the
'small lot' within the zone as a basic unit," it could not be used for
further development to add density in violation of the specific ordinance
provision. Lubinsky, 148 Vt. at 51, 527 A.2d at 229.
¶ 14. We emphasized in In re Richards, 174 Vt. at 420, 819 A.2d at
679, however, that the description of the limited purpose of § 4406(1) in
Lubinsky was "plainly obiter dicta" in that case, and relied upon a
different purpose for § 4406(1) that was developed in Drumheller v.
Shelburne Zoning Board of Adjustment, 155 Vt. 524, 586 A.2d 1150 (1990).
Similarly, we would find that the limited purpose recognized in Lubinsky
does not govern here.
¶ 15. Nonetheless, we conclude that, whatever its purpose, §
4406(1) does not apply to this case. Wesco's lot was developed into the
service station well before the adoption of zoning in the City of Barre,
and the station did not require the presence of § 4406(1) for its
authorization. Thus, Wesco does not rely upon § 4406(1) for its
redevelopment proposal; nor does § 4406(1) by its terms prevent the
redevelopment. Instead, Wesco relies upon the specific authorization in
zoning ordinance § 5.1.05(3) governing the modification of preexisting
nonconforming structures or noncomplying buildings on undersized lots. The
City has broad discretion within the statutory language to determine how it
will treat modifications of preexisting noncomplying structures. See In re
Stowe Club Highlands, 164 Vt. 272, 278, 668 A.2d 1271, 1276 (1995) (noting
approach of Legislature is to authorize municipalities to deal with such
modifications). The provision of the zoning ordinance governing
development of noncomplying structures on preexisting small lots falls
within that discretion.
¶ 16. Section 5.1.05(3) of the ordinance clearly covers the
redevelopment proposal before us. By its express terms, it can apply to
already developed lots. If it applied only to initial development on raw
land as the City suggests, there could not be a "nonconforming building or
noncomplying structure" on the land as the language provides for.
¶ 17. Next, and related, the City argues that § 4406(1) protects
only permitted uses on undersized lots and not conditional uses on such
lots. It derives this limited standard from the language of the statute,
particularly that an undersized lot "may be developed for the purposes
permitted in the district in which it is located." Id. The City argues
the term "purposes permitted" means only uses permitted as of right. Wesco
responds that the term "permitted" in the statute is synonymous with
"allowed," and a conditional use is allowed as long as the conditions are
met.
¶ 18. Again, we emphasize that Wesco's development proposal has
been approved because it is an authorized conversion of a preexisting
nonconforming use. Wesco does not have to fit within the language of §
4406(1) as long as it fits within § 5.1.05(3) of the ordinance.
Nevertheless, the City has incorporated the relevant language of § 4406(1)
into § 5.1.05 of the ordinance so even a conversion of a nonconforming use
on an undersized lot must be for "purposes permitted in the district."
Thus, we must address the language construction issue.
¶ 19. In making its argument, the City argues that we have held
that a conditional use is not a permitted use. On this point, the City
relies particularly on Town of Brighton v. Griffin, 148 Vt. 264, 532 A.2d 1292 (1987). In Griffin, the defendant purchased a property on which an
auto service station had operated a number of years earlier, and defendant
reopened the station. The Town brought an action to enjoin the operation
of the station arguing: (1) service stations had become conditional uses
after adoption of the zoning ordinance; and (2) although the station had
been a preexisting use, it lost that status because the use had been
discontinued for six months as specified in the ordinance. In response to
defendant's argument that the service station was a permitted use to which
the discontinuance provision did not apply, we relied upon two Rhode Island
cases for the proposition that a "conditionally permitted use is not
synonymous with the phrase 'permitted use.' " Id. at 269-70, 532 A.2d at
1294-95 (citing V.S.H. Realty, Inc. v. Zoning Bd. of Review, 390 A.2d 378, 382 (R.I. 1978) and Lindberg's, Inc. v. Zoning Bd. of Review, 262 A.2d 628,
629 (R.I. 1970)). Specifically, we held that "[a]n auto service station is
not permitted within the commercial district unless it complies with
certain requirements set forth in the zoning ordinance." Griffin, 148 Vt.
at 268, 532 A.2d at 1294. The holding of Griffin was recently restated in
In re Korbet, 2005 VT 7, ¶ 7 n.2, 16 Vt. L. Wk. 30, 868 A.2d 720: "a use
that did not have a CUP or comply with all aspects of a town's zoning
bylaws was nonconforming."
¶ 20. We recognize that the term "permitted use" can be used to
distinguish the use from a conditional use. See In re Miserocchi, 170 Vt.
320, 323, 749 A.2d 607, 610 (2000) (concluding a residential dwelling "is a
permitted use in the residential district, not a conditional use"). The
terms are distinguished generally by the regulatory requirements that must
be met to obtain a zoning permit. Thus, once conditional use permit
requirements are met, the use "complies with all applicable zoning
regulations" and is indistinguishable from a permitted use. In re Jackson,
175 Vt. 304, 313, 830 A.2d 685, 693 (2003). This is the necessary
implication of the holding in Griffin that a conditional use is not
permitted unless it complies with the requirements in the ordinance.
Griffin, 148 Vt. at 268, 532 A.2d at 1294. Conditional uses "are permitted
uses, generally compatible with the zoning district, but not at every
location, or without certain standards or other requirements being met." 8
P. Rohan, Zoning and Land Use Controls § 44.01[1], at 44-10 (2005).
¶ 21. If the ordinance used the term of art, "permitted use," in a
context where it was clear that it was distinguishing between a permitted
and conditional use, the City's argument would be strong. But here, the
ordinance requires only a permitted "purpose." As the above Rohan treatise
quote explains, the nature of a conditional use is that the purpose is
permitted, but the implementation of that purpose in the specific
development proposal must be specially examined to ensure it is compatible
with other uses. See 24 V.S.A. § 4407(2). We believe that a conditional
use is indistinguishable from a "permitted purpose" within the meaning of
the ordinance.
¶ 22. The City next argues that the proposed development involves
an "increased use" of a noncomplying structure as prohibited by §
5.1.104(c)(1) of the zoning ordinance. The subsection states that a
"nonconforming use or noncomplying structure may be maintained so long as
such maintenance does not result in increased floor area or increased use."
The City makes this argument based on the usage of the building that
formerly housed the office and automobile service facilities. Without
changing the footprint, these areas are to be converted to the convenience
store space. The City argues that because the use of these areas by the
public will increase markedly, both because private space was being
converted into public space and because the hours of operation were being
lengthened, the project would violate § 5.1.104(c)(1).
¶ 23. Initially, the Environmental Court held that the subsection
does not apply because the issue did not involve maintenance of the
preexisting use. It also ruled, however, that the City had shown "a mere
increase in the intensity of use of a noncomplying structure," which is
allowed under In re Miserocchi, 170 Vt. at 327, 749 A.2d at 612-13.
¶ 24. We note at the outset that the proposal involves maintenance
of a nonconforming use solely because the statute as it existed at the time
of the application defined a nonconforming use as including a noncomplying
structure. 24 V.S.A. § 4408(a)(1); In re Miserocchi, 170 Vt. at 323, 749 A.2d at 610. Otherwise, once the court found that the proposal complied
with the conditional use standards, it became fully permitted and no longer
was a nonconforming use. (FN5) We also note that there is no increase in
floor area because the footprint of the building has not changed and all of
the space was used by the office and automobile service facilities. See
Barre Zoning Ordinance § 5.2.03 (defining floor area as "the gross
horizontal area of the floors of a building"). Thus, the only argument that
the City can make is that there will be increased use of a noncomplying
structure.
¶ 25. Part of the City's argument is not supported by the wording
of the ordinance. The City argues that the level of use should be measured
exclusively by the amount of public use. The ordinance does not use the
word "public," and we see no grounds to add it. Under that argument,
structures that had no public use-for example, a factory-could never be
converted to some public use even if the extent of use overall went down by
any measure. We are left then with the argument that the longer hours of
operation necessarily increase the use.
¶ 26. In reviewing this argument, we note that the building is a
noncomplying structure because it is on an undersized lot. In that
situation, the concern of the ordinance is primarily with the floor area
used by the occupant. We noted in Miserocchi that when the use of the land
is changed from one permitted use to another, and there is no change in the
degree that the structure is noncomplying, court decisions are generally
favorable to the conversion. 170 Vt. at 327, 749 A.2d at 612-13. We went
on to note that decisions hold in that situation that "a mere increase in
the intensity of use of a noncomplying structure is not prohibited" and to
hold that "absent a regulation specifically prohibiting an increase in the
intensity of use of a noncomplying structure, we decline to create a rule
contrary to the majority of law on this issue." Id. The reason to apply
this rule here is even greater than in Miserocchi because in part Wesco is
converting the use from a nonconforming use to a permitted use. On this
basis, we affirm the decision of the Environmental Court on this issue.
¶ 27. Next, the City argues that its zoning provision on the effect
of discontinuance of a nonconforming use is invalid because it allows
restoration of the nonconforming use for twelve months after
discontinuance, rather than six months. The City makes this argument
because Wesco ceased gasoline sales for a period of ten months. In making
this argument, the City relies upon the wording of the governing statute,
24 V.S.A. § 4408(b)(3), as it existed at the time of the discontinuance:
(b) To achieve the purposes of this chapter set forth in section
4302 of this title, municipalities may regulate and prohibit
expansion and undue perpetuation of nonconforming uses.
Specifically, a municipality may control:
. . .
(3) Resumptions of nonconforming uses, by prohibiting such
resumption if such use is abandoned for any period of time or if
discontinued for six calendar months regardless of evidence of
intent to resume such use; . . . .
The City argues that under the statute a city can allow discontinuance for
only six months before preexisting nonconforming use status is lost and
Barre's ordinance is invalid because it allows discontinuance for up to
twelve months before that status is lost.
¶ 28. We again assume for purposes of this case that the City can
challenge its own ordinance. The City's construction of the statute was
rejected in Badger v. Town of Ferrisburgh, 168 Vt. 37, 41 n.1, 712 A.2d 911, 914 n.1(1998), where we held: "We construe the statute as a floor
that restricts the municipality from adopting a policy less favorable to
the landowner, but allows a more favorable policy. Thus, the Town was free
to establish a longer discontinuance period before a landowner lost their
right to resume a nonconforming use." (Citations omitted). The longer
discontinuance period in the Barre ordinance is valid under Badger. There
is no dispute that the Wesco discontinuance was within the period
authorized by the Barre ordinance.
¶ 29. Next, the City claims the Environmental Court erred when it
allowed Wesco to build a canopy over the gas pumps. The canopy is limited
in size to 4' by 22', the size of the pump island, and 15' high, with
lights recessed into the canopy. The preexisting pumps did not have a
canopy over them.
¶ 30. The City argues that the canopy is a new structure within the
setback area and it can not be justified as a preexisting noncomplying
structure. The Environmental Court disagreed and applied § 5.1.04(c)(2) of
the zoning ordinance, which provides: "A nonconforming use or noncomplying
structure may be altered with [development review board] (FN6) approval in
order to address considerations of energy, safety, environment and health
so long as such alteration does not result in increased floor area or
increased use." The court found that the canopy would not result in
increased floor area because floor area is defined in the ordinance as
"gross horizontal area of the floors of a building," id. § 5.2.03, and the
canopy is a structure but not a building. It also found that the canopy
would not result in increased use. It found that the canopy was an
alteration of the pump island and that the alteration would improve safety
by reducing glare from the lights and protect the flame suppression system.
¶ 31. The City's main argument on this point is that the canopy is
a separate structure and not part of the preexisting pumps and pump island
so it is not part of a nonconforming use. The purpose of the structure is
solely to light, shelter and protect the gasoline pumps; it is difficult to
separate the canopy from the pumping apparatus. Thus, we believe that
court's application of the zoning ordinance is not "clearly erroneous,
arbitrary, or capricious," In re Cowan, 2005 VT 126, ¶ 7, and affirm the
decision as within our limited standard of review.
¶ 32. The City's final argument is that the Environmental Court
erred in failing to consider Barre's Economic Action Plan, the master plan
and the general goal of the zoning ordinance to "provide for the orderly
development of the City of Barre." Barre Zoning Ordinance § 5.1.02. The
City particularly points to the Economic Action Plan that opposes changing
zoning to allow more retail uses along Washington Street.
¶ 33. While zoning ordinances have "the force and effect of a
legislative enactment," Kalakowski v. John A. Russell Corp., 137 Vt. 219,
223, 401 A.2d 906, 909 (1979), the municipal plans do not. As we explained
in Kalakowski:
The plan is merely an overall guide to community development. It
is a general guideline to the legislative body for its
consideration of the municipality's land use program and of the
community's needs and desires. Often stated in broad, general
terms, see 24 V.S.A. §§ 4382 4383, it is abstract and advisory.
Zoning bylaws, on the other hand, are specific and regulatory.
Zoning is properly conceived of as the partial implementation of a
plan of broader scope. It must reflect the plan, but it need not
be controlled by it. Although the plan may recommend many
desirable approaches to municipal development, only those
provisions incorporated in the bylaws are legally enforceable.
Id. at 225-26; 401 A.2d at 910 (citations omitted). Nothing in the Barre
ordinance requires that the zoning approval process adhere to the
aspirational provisions of the plans. Nor does the general language of the
zoning ordinance help the City's position. Although the City broadly
claims that "[w]hen the Development Review Board makes a decision to
approve or deny a conditional use application, it is bound to give weight
to . . . the City's Master Plan and the Economic Action Plan," we find no
legal support for such a procedure. Nor are we persuaded by the decisions
the City cites from other states; each relies on the unique wording of the
statute or regulation in its jurisdiction.
¶ 34. In this general section of its argument, the City also argues
that the Environmental Court gave no weight to the general policy of
phasing out nonconforming uses. We explained the legislative history of
the implementation of this policy in In re Letourneau, 168 Vt. 539, 545-46,
726 A.2d 31, 36 (1998). Without repeating that discussion, we note that
the authority to require the phasing out of nonconforming uses was removed
by the Legislature, and, in any event, never extended to noncomplying
structures. Short of a phase-out requirement, it is up to the municipality
to determine its policy with respect to nonconforming uses, including
noncomplying structures. The Environmental Court applied Barre's ordinance
provisions on nonconforming uses in reaching its decision, and we have
affirmed that application.
¶ 35. We also note that the Barre ordinance requires a very
extensive regulatory inquiry for conditional uses, and that process
involves the same issues as are covered in the plans. Thus, under §
5.14.02(c) of the ordinance, the court acting as the planning commission
had to determine that "the proposed use in the proposed location will not
be detrimental to inhabitants in the immediate vicinity of the proposed
location or to the public" after considering
[t]he location of the proposed use, its environmental impact on
residential use in the district, the need for the use in the
district, the need for the use in the district primarily and the
City of Barre secondarily, the generation of traffic likely to be
caused by the proposed use, the effect of the use on the safety or
health of adjacent inhabitants and the public, the fire hazard
generated, [and] the conformity of the use with standards set in
Article 11 . . . .
Then, the court acting as the zoning board also had to find that the
conditional use meets the standards of other Articles in the ordinance and
"the proposed conditional use will not adversely affect":
(1) The capacity of existing or planned community facilities;
(2) The character of the area affected;
(3) Traffic on roads and highways in the vicinity; and
(4) Ordinances or bylaws of the City of Barre then in effect.
Id. at § 5.32.04(c). Although the City disagrees with the result of those
reviews, the court conducted them properly, and we have affirmed the
results. It is difficult to see how consideration of the plan provisions
that Barre cites, or the policy of phasing out nonconforming uses, could
change the result.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
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Footnotes
FN1. Throughout the lengthy process in this case, the members of the
planning commission and the zoning board have been the same people. These
bodies have now been merged into the development review board which
performs the functions assigned to each of the predecessor boards.
FN2. The statute stated:
No municipality may adopt zoning regulations which do not provide
for the following:
(1) Existing small lots. Any lot in individual and separate and
non-affiliated ownership from surrounding properties in existence
on the effective date of any zoning regulation, including an
interim zoning regulation, 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 acre in area with a minimum width or depth
dimension of forty feet.
FN3. As noted in In re Bailey, 2005 VT 38, ¶ 9 n.*, 16 Vt. L. Wk. 107, 883 A.2d 765, § 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)). The amended statute is not applicable here. In any event, we
reject the City's claim.
FN4. Although the decision does not state so explicitly, apparently the lot
contained fewer than 10,000 square feet, the minimum area for a
single-family dwelling, and could be developed initially only because of §
4406(1). Thus, the owner argued that § 4406(1) could override the density
requirement entirely because § 4406(1) continued to apply beyond its
initial effect of allowing some development of the undersized lot. The
Court apparently believed that this argument could not be made except in
the circumstance that the initial development was allowed only because of §
4406(1). For this reason, the Court expressed that acceptance of owner's
argument would place the undersized lots "in a situation of special and
unique privilege not available to standard zoning lots in the district."
Lubinsky, 148 Vt. at 50, 527 A.2d at 228-29.
FN5. The City argues that this conclusion is wrong because, after the
Environmental Court granted the permit, the City amended the ordinance to
prohibit retail stores in the zoning district. This amendment was not
raised in the trial court and, in any event, does not apply to the
application that was submitted much earlier.
FN6. As discussed in footnote 1, the planning commission and zoning board
have now been merged into the development review board.
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