In re Appeal of Richards, 2005 VT 23 (VT 2/9/2005)
| Decision Date | 09 February 2005 |
| Docket Number | No. 2003-543.,2003-543. |
| Parties | In re Appeal of Stuart Richards |
| Court | Vermont Supreme Court |
In the above-entitled cause, the Clerk will enter:
¶ 1. This is the second appeal in litigation between neighbors Stuart Richards and Paul Nowicki concerning Nowicki's desire to build a house on 84 Elm Street in the Town of Norwich. In this appeal, Richards claims the environmental court erred by concluding that 84 Elm Street and an adjoining parcel Nowicki owns are two separate lots for zoning purposes because a right-of-way providing access to Richards's property divides them. We reverse.
¶ 2. In 1996, Nowicki bought 84 Elm Street and an adjoining parcel, 76 Elm Street, from an individual who had held title to both parcels since 1967. Richards and his wife live behind 76 Elm Street and must access their property by a right-of-way over 84 Elm Street along the border with 76 Elm Street. The 76 Elm Street parcel had been improved with a house when Nowicki purchased the property, but 84 Elm Street was an empty lot. Nowicki sought a building permit to construct a house for his mother on 84 Elm Street. Richards opposed the permit, and the present litigation ensued.
¶ 3. Richards continued his challenge to the building permit for 84 Elm Street all the way to this Court. See In re Richards, 174 Vt. 416, 819 A.2d 676 (2002). In his first appeal, Richards argued that Nowicki could not legally develop the 84 Elm Street property because the parcel had legally merged with 76 Elm Street in 1981 when the town adopted zoning regulations establishing a minimum lot size of 20,000 square feet. The 76 Elm Street parcel did not meet that minimum size requirement, and therefore it merged with 84 Elm Street to form one conforming lot. Once merged, Richards argued, Nowicki could not develop the parcels separately without violating the town's minimum lot size ordinance. This Court agreed with Richards, concluding that 84 Elm Street could not be developed separately because doing so would leave the 76 Elm Street parcel nonconforming under the zoning ordinance. Id. at 420, 819 A.2d at 679. We explained that the state's small lot statute, 24 V.S.A. § 4406(1), did not protect 76 Elm Street as an undersized lot because of the unified ownership of the properties since 1967:
Due to the unified ownership of the parcels in 1967, however, the enactment of the minimum lot size regulations in 1981 prevented any subsequent landowner from taking advantage of § 4406(1)'s small lot exception to treat [76 Elm Street] separately from [84 Elm Street]. For the purposes of development, therefore, the parcels had merged into one property subject to a 20,000 square foot minimum lot size requirement at the time Nowicki purchased them in 1996.
Id. at 420-21, 819 A.2d at 680. Notwithstanding that conclusion, we remanded the case to the environmental court so that it could consider, in the first instance, Nowicki's argument that the right-of-way between 76 and 84 Elm Street effectively separated the parcels, preventing the merger that otherwise took place by operation of law in 1981. Id. at 426, 819 A.2d at 684; see Wilcox v. Vill. of Manchester Zoning Bd. of Adjustment, 159 Vt. 193, 197, 616 A.2d 1137, 1139 (1992) ().
¶ 4. The court took evidence on the issue and rendered the decision that forms the basis of this appeal. In its order, the court found that 84 Elm Street and Richards's property are bounded on one side by the Blood Brook. The 84 Elm Street boundary with Blood Brook is about eighteen feet lower in elevation than 76 Elm Street, and both properties slope away from Elm Street down towards Richards's land. The court found that the right-of-way at issue is a twenty-foot-wide private road or driveway used by Richards and his wife for ingress and egress to their property behind 76 Elm Street. The right-of-way has been used to access the rear basement entrance of 76 Elm Street as well. After purchasing the property, Nowicki regraded the right-of-way by removing a hump that impaired the view of Elm Street from Richards's property at the end of the right-of-way. Nowicki also installed a three-foot-high retaining wall running alongside the right-of-way from Elm Street to the back of the house on 76 Elm Street. The environmental court concluded that the parcels had not merged due to the right-of-way, reasoning:
[A]lthough the right-of-way is private, these properties are equivalent to those at the end of and flanking the end of a short dead-end village street. While a person capable of walking and of going up and down steps or a slope would be able to cross from the 76 Elm Street parcel onto the 84 Elm Street parcel, or vice-versa, it is not possible to use the two parcels as a single parcel, primarily because the owners of those two parcels cannot block the use of the right-of-way by the owners of [Richards's] parcel. The right-of-way occupies the entire adjacent boundary; that is, it is not possible to cross from the 76 Elm Street parcel onto the 84 Elm Street parcel without crossing the right-of-way. . . . While the 84 Elm Street parcel could have been used as a single lot if it had been in common ownership with [Richards's] property, it cannot be used as a single lot in common ownership with the 76 Elm Street lot.
The court emphasized that Richards's property had numerous potential uses under the town's zoning ordinance, including a day care center, a small group home, a home occupation, or a two-family residence. The potential for Richards to use the right-of-way so intensively prevented the two lots from merging. Thus, the court concluded, Nowicki could develop the two lots separately. This appeal followed.
¶ 5. On appeal, Richards argues that the environmental court's findings do not support its conclusion that Nowicki's two Elm Street parcels had not merged. According to Richards, upholding the environmental court's decision here would defeat the Legislature's intent to limit nonconforming uses of property to uses existing prior to the effective date of zoning. Because Richards does not contest the findings upon which the environmental court's decision rests, we review the court's legal conclusions using a nondeferential and plenary standard. Catamount Slate Prods., Inc. v. Sheldon, 2003 VT 112, ¶ 14, 845 A.2d 324.
¶ 6. At issue here is the impact of the state's small lot statute, 24 V.S.A. § 4406(1), to property divided by a right-of-way that was held in common ownership at the time zoning became effective in the Town of Norwich. The statute exempts from the town's minimum lot size regulation any property held in separate and unaffiliated ownership from "surrounding properties" on the effective date of a town's minimum size zoning regulation. Richards, 174 Vt. at 419-20, 819 A.2d at 678-79. Adjoining property held in common ownership on the effective date of zoning is deemed merged by operation of law under the statute because one goal of zoning is to phase out nonconforming uses, including undersize lots. Id.; Drumheller v. Shelburne Zoning Bd. of Adjustment, 155 Vt. 524, 529, 586 A.2d 1150, 1152 (1990). Once merged, the property may not be developed in a manner that would re-create the nonconforming use. Drumheller, 155 Vt. at 529-30, 586 A.2d at 1152.
¶ 7. Although § 4406(1) establishes a bright line rule for the merger of adjoining lots held in common ownership, there are limited circumstances under which the bright line rule may not apply. In Wilcox, this Court explained that contiguity "is a strong indicator that two lots should not be deemed separate within the meaning of § 4406(1)," but noted that contiguity is not the only factor. 159 Vt. at 197, 616 A.2d at 1139.
Wilcox held that, depending on its location and function, a right-of-way could separate a piece of property so that it cannot be used in the ordinary manner as a single lot. Id. In those circumstances, § 4406(1) would not consider the properties adjoining and no merger would occur. Id.
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In re Jenness and Berrie, 07-318.
...§ 4406 as applying generally to "contiguous" or "adjoining" parcels. Id. at 555, 557, 712 A.2d at 910. ¶ 14. In a more recent case, In re Richards, 2005 VT 23, 178 Vt. 478, 872 A.2d 315 (mem.), we similarly assumed that simply means "adjoining." There, we noted that "[a]djoining property he......
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