85-5-05 Vtec

STATE OF VERMONT=

ENVIRONMENTAL COU= RT

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Appeal of LaBounty Enterprises, Inc. = } = Docket Nos. 232-12-04 Vtec

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<= span style=3D'font-size:12.0pt;font-family:"Times New Roman"'>Decision and Orde= r on Cross-Motions for Summary Judgment

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In this consolidated proceeding, Appellant-Applicant LaBounty Enterprises, In= c. (LaBounty) appeals from two decisions of the Town of Grand Isle (Town) Development Review Boa= rd (DRB). The decisions, dated November 18, 2004 and April 20, 2005, denied permits for two properties located on Sturgeon = and Keel Roads. Appellant is represented by John W. O’Donnell, Esq.; the Town is represented by W= ill S. Baker, Esq. Both parties = filed Cross-Motions for Summary Judgment.

Factual Background<= /b>

            The following facts are undisputed unless otherwise noted. <= /p>
            1. Appellant owns two parcels in the= Town Rural Residential and Agricultural District: an L-shaped 0.41-acre lot at = 23 Sturgeon Road and a rectangular 0.14-acre l= ot on the south side of Keel Road.

2. The proposed dwelling on <= st1:Street>Sturgeon Road would have 120 feet of fronta= ge and a front setback of twenty-seven feet.

3. On July 22, 200= 4, LaBounty filed a zoning perm= it application for the Sturgeon Road= lot with the Administrative O= fficer, who denied the permit on August 20, 2004, on the ground that the propo= sed dwelling could not meet the setback requirements of the District (permit application #04-69). On November 18, 2004, the DRB affirmed the Administrative Officer’s denial of the <= st1:Street>Sturgeon Road permit.

4. The proposed dwelling on <= st1:Street>Keel Road would have sixty feet of fron= tage, a front setback of twenty-six feet, an easterly side setback of twenty feet,= a westerly side setback of twenty-four feet, and a rear setback of fourteen = feet.

5. On January 26, = 2005, LaBounty filed a zoning perm= it application for the Keel Road lot with the Administrative O= fficer, who denied the permit on January 26, 2005, because the proposed dwellin= g did not meet the setback requirements of the District (permit application #05-001). On April 26, 2005, the DRB affirmed the Administrative Officer’s denial. LaBounty appealed both denials to= this Court.

6. On May 4, 2005<= /span>, this Court granted LaBounty&= #8217;s unopposed Motion to Consolidate the two appeals.

Discussion

This case involves the proper interpretation of § 4.6 the Town Zoning Bylaw (Bylaw)[1] and its interplay with the language of the former 24 V.S.A. § 4406(1)= . The relevant portions of the Byla= w that regulate existing small lots as well as the dimensional requirements in the Rural Residential and Agricultural District are:

4.6       Exis= ting Small Lots

A= ny lot in individual and separate and non-affiliated ownership from surrounding properties and in existence on the effective date of this Bylaw may be developed for the purpose permitted in the District in which it is located= , even though it does not conform to the minimum lot dimensional requirements, providing that such lot:

<= span style=3D'mso-tab-count:1'>        =     1. is not less than one-eighth (1/8)= of an acre in area

<= span style=3D'mso-tab-count:1'>        =     2. has a minimum width or depth dimension of, at least, forty (40) feet.

<= span style=3D'mso-tab-count:1'>        =     3. has adequate access (see Section = 4.7); AND

<= span style=3D'mso-tab-count:1'>        =     4. complies with all wastewater disp= osal and other health and safety   &n= bsp; provisions herein.

<= span style=3D'mso-tab-count:1'>        =     5. Number of bedrooms in principal a= nd accessory dwellings must    = ;    conform to limitations of septic system.

Bylaw § 4.6 (emphasis add= ed).

Minimum Dimensional Requirements

Lot Size: &nb= sp;         1 Acre

F= rontage:        = 150 continuous feet

S= etback:        =    40 feet from near edge of public and private road Right-of-way. &= nbsp;           &nb= sp;                 =     (Corner lots have 2 setbacks)

Y= ard Setback: 25 feet to side and = rear property lines.

D= riveway:        = 15 feet setback from side boundaries. (See Section 4.7 for shared &= nbsp;           &nb= sp;             =     driveway rules.)

Bylaw § 3.2.2.3.

            The issue presented by these consolidated appeals in this de novo proceeding is: does the phrase “minimum lot dimensional requirements” refer only to the minimum lot size requirement, or doe= s it include the front, rear and side yard setback requirements of the relevant zoning district? If the phrase refe= rs only to minimum lot size, then the proposed development of a “small lot&#= 8221; must conform to the other “minimum dimensional requirements”, = or obtain the necessary variance. On the other hand, the phrase may refer to the entire set of minimum dimensio= nal requirements, not just the minimum lot size requirement. “Ordinances are to be inter= preted according to the basic rules of statutory construction and enforced in accordance with their plain meaning.” Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 525 (1999). The Court lo= oks to the plain meaning of the language in § 4.6, read together with and in= the context of § 3.2.2.3 and the state zoning statute, to determine = the meaning of “minimum lot dimensional requirements.”<= /span>

            “[I]t is a well-established rule = in this state that in construing land use regulations any uncertainty must be decided in favor of the property owner,” In re Vitale 151 Vt. 580, 584 (1= 989). However, we find no uncertainty h= ere in the plain meaning of the phrase “minimum lot= dimensional requirements.” Bylaw § 4.6 (emphasis added). The phrase can only be interpreted to mean the minimum required dimensions = of the lot, which is to say, the minimum lot size or area. This reading is consistent with t= he list of five dimensional requirements in § 3.2.2.3 (lot size, frontage, fr= ont setback, side yard setback, and driveway), the last four of which remain i= n effect for existing small lots. We construe § 4.6 independently of the minimum dimensional requirements = in § 3.2.2.3 as only controlling the development of lots that are less t= han one acre in area.

            If we were to accept Appellant’s argument that “minimum lot dimensional requirements” be read as “minimum dimensional requirements,”[2] we would be construing the Bylaw so as to conflict with the state zoning stat= ute. 24 V.S.A. Ch. 117. The DRB decisions at issue here w= ere decided under a version of the Bylaw adopted on Ma= rch 7, 2000. At that time, 24 V.S.A. §&nb= sp;4406(1) (now amended and codified as § 4412(2)) was still in effect and provi= ded:

(1) Existing Small Lots. Any lot in indiv= idual and separate and non-affiliated ownership from surrounding properties in e= xistence 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 wit= h a minimum width or depth dimension of forty feet.

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24 V.S.A. § 4406(1) (emph= asis added). Appellant’s re= ading of Bylaw § 4.6 is more permissive than the language of the enabling statute. In that situation, = state law operates to invalidate the offending bylaw provision. In= re Ric= hards, 174 Vt. 416, 424 (2002). = On July 1, 2005, the state zoning statute was amended to allow bylaw provisions to be less restrictive than the provisions in the statute. See 24 V.S.A. § 4412(2)(C).<= span style=3D'mso-spacerun:yes'> However, because the former § 4406(1) is the law of this case, Bylaw § 4.6 cannot be read to exempt existing small lots from the application of setback and other minimum dimensional requirements.

            We also find support for the more narrow interpretation of the exemption for = small lots from the manner in which that Ordinance is drafted. Bylaw § 4.6 allows pre-exist= ing small lots to be developed, provided the lots do not fall below certain absolute minimums as to lot size, width and depth. See Bylaw § 4.6(1), (2). But the Ordinance provides no such absolute minimums as to front, rear and side yard setbacks. Thus, if we were to adopt Appellant-Applicant’s more broad reading of § 4.6, there would = be no limit to the reduction of setbacks for pre-existing small lots. Parcels such as those owned by Appellant-Applicant could be developed without regard to setback protections. We find that to= be a practice unsupported by the Town Bylaw or state statute. Deviations from lawful zoning set= back restrictions should be carefully reviewed. That is one of the rationales for the statutory authority for varia= nce approvals.

            The setbacks required by § 3.2.2.3 apply to both existing small lots and = conforming lots (i.e.: lots that are one acre or greater in area). The dwellings as proposed violate = those setback requirements and cannot be built without obtaining a variance from= the DRB from those requirements. Therefore, Appellant-Applicant’s application must be denied.<= o:p>

            Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= 217;s Cross-Motion for Summary Judgment is GRANTED, and the Appellant’s Cross-Motion for Summary Judgment is DENIED. The result of these adjudications= is that Appellant-Applicant LaBounty’s two zoning applications are DENI= ED, without prejudice to resubmit such applications in the event that variances from the applicable setback requirements are obtained or the applicable By= law sections are revised so as to permit the applications to otherwise be appr= oved.

This decision concludes the pe= nding appeals.

Done at Berlin, Vermont, this 16^th day of September, 2005.



  &nb= sp;         _________________________________

  &nb= sp;            = ;            &= nbsp;           &nb= sp;            = ;            &= nbsp;       Thomas S. Durkin, Environmental Judge