Franklin County v. City of St. Albans

• Decision Date: 11 May 1990
• Docket Number: No. 89-224,89-224
• Citation: 154 Vt. 327,576 A.2d 135
• Parties: FRANKLIN COUNTY v. CITY OF ST. ALBANS.
• Court: Vermont Supreme Court

Page 135

576 A.2d 135

154 Vt. 327

FRANKLIN COUNTY v. CITY OF ST. ALBANS.

No. 89-224.

Supreme Court of Vermont.

May 11, 1990.

Richard A. Gadbois, Enosburg Falls, for plaintiff-appellee.

Farrar & Cuonos, P.C., St. Albans, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

The City of St. Albans appeals from a superior court order declaring that resumption of overnight housing of prisoners at the Franklin County jail would not constitute a prohibited change, expansion, enlargement or extension of a nonconforming use. We affirm.

The Franklin County jail was used to house overnight prisoners until September 4, 1981. Some remained there for as long as three months. Sheriff Roland Keenan announced that as of that date he was not accepting overnight prisoners or housing those over whom he had custody. His reasons were the age and condition of the facility and concern that he faced personal liability if he continued to allow use for overnight prisoners. The trial court found that after September 4, 1981 the jail has been used solely for daytime lockup, typically two to three times a week and for up to five or six persons at a time.

The present St. Albans zoning regulations were adopted in 1977 and place the facility in its high-density residential zone, which does not permit jails. Section 602 of the regulations relates to nonconforming uses; it states:

Any non-conforming use of structures or land, except those specified below, may be continued indefinitely, but:

....

[602.2] Shall not be changed to another non-conforming use without approval by the Zoning Board, and then only to a use which, in the opinion of the Zoning Board, is of the same or of a more restricted nature.

[602.3] Shall not be re-established if such use has been discontinued for a period of one year, or has been changed to, or replaced by, a conforming use. Intent to resume a non-conforming use shall not confer the right to do so.

However, § 604 of the ordinance permits the expansion of any legal nonconforming use, on Board approval, "providing it does not adversely affect the surrounding areas and providing it meets the same criteria as for special conditional use."

The present Franklin County sheriff, Dale Messier, appeared before the St. Albans Zoning Board of Adjustment in January and February, 1988 seeking the Board's approval of resumption of the jail's use as an overnight facility for prisoners. ¹ The Zoning Board denied the permission, and the County filed the present action for declaratory relief, together with an appeal of the Board's denial, pursuant to 24 V.S.A. § 4472. The trial court concluded that "the resumption of overnight housing of prisoners, and an increase in the number of occupied cells, at the Franklin County jail, will not constitute a prohibited change, expansion, enlargement, or extension of the preexisting nonconforming use." The present appeal followed.

The City's appeal interweaves, and sometimes combines, two distinct themes. First, it argues that the County in effect abandoned or discontinued the use of the jail as a facility for the housing of prisoners (other than what it characterizes as casual, nonovernight confinements). That abandonment left the jail as a nonconforming structure, but with its permitted uses limited to those that occurred after September, 1981--County administrative functions and the casual housing of a few daytime prisoners. The City then goes on to measure the scope of the County's proposed expansion against this post-1981 norm and to compare that level of proposed use to the uses in other cases where significant new activities were barred as impermissible for nonconforming structures.

In sum, the City first argues that the pre-1981 jail uses have been abandoned, leaving the jail as a nonconforming use with very limited functions, and then contends that, measured from its lowered threshold, the proposed use of the jail for housing prisoners in the pre-1981 manner would be an impermissible expansion of a nonconforming use.

We must first address the question of whether the County ever abandoned or discontinued the full range of nonconforming uses preserved for the jail prior to September 4, 1981, or whether, in the words of the trial court, there was, after that date, "very substantial attenuation, but not cessation," and hence no abandonment. Defendant contends that the essential nature of the jail facility was changed when it ceased to be a "correctional public facility." The County does not differ with the City that since September 4, 1981 no prisoners have been housed in the Franklin County jail by the Vermont Commissioner of Corrections. But the City's stress on the formal commitment of prisoners to the facility, as opposed to casual, but continuous use after 1981, is not sufficient to demonstrate abandonment. The trial court's findings that the jail has been used in the post-1981 period for daytime lockup, typically two to three times a week and for up to five or six persons at a time, is supported by the testimony of a deputy sheriff who was on hand in the intervening years. The record does not reflect the abandonment of jail functions claimed by the City and exemplified in the cases it relies on. In Wyatt v. Board of Adjustment-Zoning, 622 P.2d 85 (Colo.App.1980), a beauty shop ceased operations for twelve months, and the right to resume the nonconforming use was lost. There was no evidence, however, that the shop maintained any level of operations in the twelve months after shutdown. Id. at 86. Nor was it in doubt that the gas station and used car lot in Miorelli v....