Appeal of Lowe, 94-421

• Decision Date: 01 September 1995
• Docket Number: No. 94-421,94-421
• Parties: In re Appeal of Beverly LOWE, et al. (Town of Colchester, Appellant).
• Court: Vermont Supreme Court

Page 1178

666 A.2d 1178

164 Vt. 167

In re Appeal of Beverly LOWE, et al. (Town of Colchester, Appellant).

No. 94-421.

Supreme Court of Vermont.

Sept. 1, 1995.

Marsha Smith Meekins of Roesler, Whittlesey, Meekins & Amidon, Burlington, for appellant.

Philip C. Linton and Robert H. Rushford of Linton & Hobson, Williston, for appellees.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The Town of Colchester appeals from the decision of the Chittenden Superior Court that Beverly and Debra Lowe (landowners) do not need a zoning or subdivision permit to convert rental camps on a lot near Lake Champlain to condominium ownership. The town argues that the permit is required by the town's subdivision ordinance and that the ordinance is valid. We affirm.

The lot in question borders Lake Champlain and contains six single-family camps which have been rented in the past. The lot does not conform to current zoning requirements because it contains multiple structures, some of which are too close to the lot boundary. Landowners proposed to transfer legal title to each of the camps to purchasers, who would own a camp building and an undivided interest in the surrounding land. The lot would not be subdivided; no change in the camps or their use is proposed.

The town subdivision regulations define subdivision to include "condominiums and cooperatives for the purpose, whether immediate or future, of sale." Based on these regulations, the Colchester zoning administrator decided that a subdivision permit was required before the condominium sale occurred, and this decision was upheld by the zoning board. On appeal, however, the superior court held the zoning enabling act did not grant the town the power to regulate a change in the form of ownership without physical construction, alteration, or modification of the buildings or a change in use or occupancy. It rejected the town's argument that the change in title is necessarily a change in use.

The Vermont Planning and Development Act authorizes a municipality to adopt both zoning and subdivision regulations, see 24 V.S.A. § 4401(b), but contains no definition of subdivision. The zoning authority of a municipality, however, extends to "land development" which is defined to include "the division of a parcel into two or more parcels." Id. § 4303(3).

The town makes two arguments to support its contention that it has the authority to regulate condominium sales. First, the town argues that the absence of a statutory definition for "subdivision" gives the town discretion to interpret the word's scope and meaning. Second, the town argues that the definition of "land development," the requirement for zoning review, authorizes a municipality to regulate condominium sales. Landowners, on the other hand, argue that no permit, whether zoning or subdivision, is required in this instance.

In addressing the town's first argument, we do not see controlling significance in the fact that this dispute arose as a ruling that a subdivision permit, rather than a zoning permit, was required. See Drumheller v. Shelburne Zoning Bd., 155 Vt. 524, 527 n. 3, 586 A.2d 1150, 1151 n. 3 (1990). In ruling on a subdivision request, the planning commission may require that the subdivided plots "at least comply with the requirements [of the zoning ordinance]." 24 V.S.A. § 4417(2). The language suggests that the Legislature did not intend that there be instances where a subdivision permit was required even though there are no applicable zoning requirements. See Vermont Agency of Transp. v. Mazza, 161 Vt. 564, 565, 632 A.2d 363, 364-65 (1993) (mem.) (in construing statute, primary goal is to implement legislative intent). Nor would it make sense to require zoning review of a landowner's actions because it involves a subdivision but conclude that subdivision review is definitionally inapplicable. In view of the interrelationship of zoning and subdivision regulation, we believe that the concept of subdivision should be the same for either regulatory scheme. See Nash v. Warren Zoning Bd., 153 Vt. 108, 112, 569 A.2d 447, 450 (1989) (in statutory construction, look to whole statute, subject matter, effects and consequences); In re McCormick Management Co., 149 Vt. 585, 592, 547 A.2d 1319, 1324 (1988) (construe statutes that are part of same overall scheme in pari materia).

For this reason, we reject the town's argument that the lack of a statutory definition for "subdivision" leaves a municipality free to define the term as it deems appropriate. ¹ Rather than part of a coordinated whole, this would create inconsistencies in the zoning and subdivision power. We conclude instead that the Legislature's concept of a subdivision can be found within the definition of land development.

Second, the town argues that the definition of land development is broad enough to authorize a municipality to regulate the conversion of rental units into condominium ownership. The argument is based on the full definition of land development:

"Land development" means the division of a parcel into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining, excavation or landfill, and any change in the use of any building or other structure, or land, or extension of use of land.

24 V.S.A. § 4303(3). The town emphasizes the use of the term "conversion," because it is defined in the Vermont Protection of Tenants in Conversion of Rental Units Act as "a change in character of residential real property from a rental to an ownership basis." 27 V.S.A. § 1331(2). It argues that because a condominium conversion triggers zoning review under the definition, it should be treated as a subdivision.

In approaching this question, we have looked at the many cases from other states which support the trial court's conclusion here. Although some states have addressed the issue in their subdivision law, see, e.g., Cohen v. Town of Henniker, 134 N.H. 425, 593 A.2d 1145, 1147 (1991) (statute defines condominium creation as subdivision); Ohio Mall Contractors, Inc. v. Dickinson, 65 Ohio App.3d 806, 585 N.E.2d 506, 508 (1990) (statute provides that transfer of condominium ownership is not subdivision), the overwhelming majority of decisions conclude that in the absence of a specific statute, no zoning or subdivision permit is required to establish condominium ownership of rental property. See City of Miami Beach v. Arlen King Cole Condominium Ass'n, 302 So.2d 777, 779 (Fla.Dist.Ct.App.1974) (no zoning permit required to convert hotel-apartment, a nonconforming use, to condominium ownership); McHenry State Bank v. City of McHenry, 113 Ill.App.3d 82, 68 Ill.Dec. 615, 446 N.E.2d 521, 524 (1983) (municipality may not use zoning power to prevent condominium conversion); CHR Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E.2d 788, 791 (1982) (local condominium conversion ordinance is not valid exercise of zoning power because statutory zoning power is restricted to regulating use of property rather than ownership); Town of York v. Cragin, 541 A.2d 932, 934 (Me.1988) (conversion of rental properties into condominium ownership is not subdivision for purposes of statute authorizing subdivision regulation); Supervisor v. Chase Assocs., 306 Md. 568, 510 A.2d 568, 571-72 (1986) (filing condominium declaration is not subdivision under land use laws); Maplewood Village Tenants Ass'n v. Maplewood Village, 116 N.J.Super. 372, 282 A.2d 428, 431 (Ch.Div.1971) (condominium conversion does not require subdivision permit because it is "nothing more than a change in the form of ownership" and "use of the land will not be affected"); Graham Court Assocs. v. Town Council of Chapel Hill, 53 N.C.App. 543, 281 S.E.2d 418, 420 (1981) (change in apartments from tenant rental to condominium ownership does not require zoning permit even though apartment is nonconforming use); McConnell v. Wilson, 543 A.2d 249, 251...