mime-version: 1.0 content-type: multipart/related; boundary="----=_NextPart_01C56838.955F3870" This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer. ------=_NextPart_01C56838.955F3870 mime-version: 1.0 content-location: file:///C:/23575755/eo04-495.htm content-transfer-encoding: quoted-printable content-type: text/html; charset="us-ascii"
= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-495
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
In re Appeal of Sisters and Brothers  = ; } = APPEALED FROM:
Investment Group, LLP &n= bsp; &nbs= p; = = }
= &n= bsp; &nbs= p; = &n= bsp; &nbs= p; } = Environmental Court
} DOCKET NO= . 281-12-02 Vtec
Trial Judge: Merideth Wright
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
This is an appeal from an environmental court decision denying approval for a proposed convenience store with gasoline pumps in the Town of Colchester.<= span style=3D'mso-spacerun:yes'> The appellant, Sisters and Brothe= rs Investment Group, LLP (SBI), contends the environmental court erred by concluding that (1) a convenience store with gasoline sales is not a permi= tted use in Colchester’s GD-1 zoning district, and (2) the proposed proje= ct does not meet the applicable conditional use criteria. We reverse, concluding that the environmental court misconstrued the zoning regulations on permitted uses = in GD-1 zoning district.
In 2002, SBI sought approval from the Town of Colchester for a convenience st= ore with gasoline pumps on property SBI owns along College Parkway. The property is located in the GD= -1 zoning district. The zoning regulations in effect at the time describe the GD-1district as providing f= or “residential and compatible commercial and limited light manufacturi= ng activities in an environment featuring convenience of required facilities = and essential services.” Town of Colchester, Vt., Zoning R= egulations § 1200 (Sept. 9, 1997). After the town denied the application, SBI appealed to the environmental court.<= span style=3D'mso-spacerun:yes'> The environmental court also deni= ed SBI’s application. The= court held that SBI’s proposed use was not permitted under the zoning regulations. After a contest= ed evidentiary hearing on the issue, the court concluded that the project did= not qualify for conditional use approval under established criteria. The court denied the permit appli= cation, and SBI appealed to this Court.
On appeal, SBI argues that its project is permitted under the zoning regulati= ons because even if the regulations are ambiguous the ambiguity must be resolv= ed in SBI’s favor; and, in any event, the project qualifies for conditiona= l use approval. We do not address = the last argument because we find the first one controlling.
the environmental court, this Court interprets zoning ordinances according=
the rules of statutory construction.
In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 5=
(mem.). We apply the plain m=
of the ordinance’s text, unless that text is uncertain. In re Miserocchi, 170 Vt. =
324 (2000). In that event, w=
resolve the uncertainty in favor of the property owner because zoning is in
derogation of common law property rights.=
Id.; accord Bennington Sch., 2004 VT 6, ¶ 12.
Section 1201 of the Colchester ordinance provides that the uses permitted in the G= D-1 district are listed in a “Table of Permissible Uses.” Town of Colchester, Vt., Zoning Regulations § 1201 (Sept. 9, 1997).&= nbsp; The Table of Permissible Uses identifies both permissible and conditional uses in certain of the Town’s various zoning districts.<= span style=3D'mso-spacerun:yes'> The Table also denotes whether any listed use is permissible, but only with conditions. Any uses not expressly permitted = in the Table are prohibited, except certain conditional uses. Id.
text of the Table therefore controls whether a use is permitted or not.
&= nbsp; &nb= sp;  = ; &= nbsp; &nb= sp;  = ; &= nbsp; &nb= sp;  = ; &= nbsp; &nb= sp;  = ;
Rather than holding that a convenience store as described in § 2.111 must me= an one with gasoline pumps, the environmental court turned to a different sect= ion of the ordinance, the provision for conditional uses in the GD-1 district.= The court reasoned that condition= al uses in the GD-1 district include “other commercial uses” not liste= d as permitted uses in the Table. The table also provides that gasoline sales are a permitted use in the Commerc= ial district, but not in the GD-1 district.&n= bsp; Therefore, the court concluded, a convenience store must obtain conditional use approval if it wants to sell gasoline in the GD-1 district because the sale of gasoline is an “other commercial use” requ= iring conditional use approval in the GD-1 zone.
We conclude that the environmental court’s analysis conflicts with the = plain meaning of the ordinance. Pu= rsuant to § 1201, the Table governs whether or not a use is permitted in any particular zoning district. = The Table provides two categories of convenience stores, a “convenience store” in § 2.111 and one “without gas pumps” in &s= ect; 2.112. By modifying “convenience store” with the words “without gas pumps= 221; in § 2.112, the only rational inference one may draw is that a § 2.111 “convenience store” is a store that has gas pumps. That inference is further support= ed by the different zones in which “convenience stores” and “convenience stores without gas pumps” are listed as permitted uses. A “convenience store”—that sells gas—is limited to the GD-1 and Commerc= ial districts, whereas a “convenience store without gas pumps” is allowed in two additional zoning districts, namely GD-3 and GD-4C.
The only rational purpose for listing two categories of convenience stores in = the Table of Permissible Uses is= to draw a distinction between the permissible uses in the corresponding zoning districts. If “conveni= ence stores” and “convenience stores without gas pumps” were intended to describe the same use, as the environmental court concluded, t= hen the Table of Permissible Uses would show them as permitted uses in the same zoning districts. It does no= t. A “convenience store withou= t gas pumps” is allowed in more zones than a “convenience store.R= 21;
The Town argues that the reason for the two categories is logical and rational. It asserts that wh= en the Town created the GD-3 and GD-4C districts, it wanted to emphasize that gas sales would not be permitted, even in combination with a convenience store. The Town explains tha= t it left § 2.111 unchanged when it added § 2.112 for emphasis o= nly. A “convenience store” remains defined by § 101, according to the Town, and that definition = does not include gas sales.
If this were a matter of policy, we might be persuaded by the Town’s claim. It is however a matte= r of ordinance construction where the language of the ordinance is clear. In context, a convenience store as described in § 2.111 can only mean one with gas pumps, and the langua= ge allows such a store in the GD-1 district.= Section 1201 makes the provisions of the Table of Permitted Uses the controlling list of permitted uses. The text of the Table contains a list of zones in which a “convenience store” is permitted and a different list where a “convenience store without gas pumps” is allowed. In this context, a “conveni= ence store” can be understood to be one where gas is sold. To the extent that the § 101 definition of convenience store does not preclude gas sales, adding “convenience store without gas pumps” to the Table of Permissi= ble Uses could have been intended to clarify that “convenience stores= 221; generally have gas pumps, and as such, they are a permitted use in fewer z= ones than those without pumps. = p>
We note that the Town has now rewritten the definition of convenience store consistent with the policy it presented to the environmental court. The definition now clarifies when= gas sales are permitted with convenience stores.&nb= sp; See Town of Colchester, Vt., Zoning Regulations, § 12.02 (Nov.= 30, 2004) (providing in definition for convenience stores that they “may include gasoline sales as provided in Appendix Table A-1, the table of per= missible uses, herein”). This c= ase is governed by the regulations existing at the time, however, and the Table of Permissible Uses allows SBI to put its Colchester property to use as a convenience store with gasoline pumps.
Reversed and remanded for entry of judgment for Sisters and Brothers Investment Gro= up, LLP.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
 The regulations were amended effe= ctive November 30, 2004. The updat= ed regulations now describe the GD-1 district as follows: “To provide for residential= and compatible commercial featuring convenience of required facilities and essential services in the Colchester Village and Warner’s Corners neighborhoods.” Town of Colchester, Vt., Zoning Regulations § 4.01 (Nov. 30, 2004).
 We observe that the environmental= court agreed with our view of the regulations.&= nbsp; In a footnote to its decision, the court urged the Town to consider rewriting the ordinance for clarity. The Town has now adopted a new ordinance, which became effective in November 2004.
 The use is permissible in GD-4C a= rea with conditions.