In re Brewster River Mountain Bike Club, Inc.

• Docket Number: 24-AP-022
• Decision Date: 17 January 2025
• Citation: 2025 VT 4
• Parties: In re Brewster River Mountain Bike Club, Inc. Conditional Use Application David Demarest & Jeff Moulton, Appellants
• Court: Vermont Supreme Court

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2025 VT 4

In re Brewster River Mountain Bike Club, Inc. Conditional Use Application David Demarest & Jeff Moulton, Appellants

No. 24-AP-022

Supreme Court of Vermont

January 17, 2025

On Appeal from Superior Court, Environmental DivisionThomas S Durkin, J.

Jeremy S. Grant, Burlington, for Appellants.

Nicholas A. E. Low of Tarrant, Gillies & Shems Montpelier, for Appellee.

PRESENT: Reiber, C.J., Eaton, Cohen and Waples, JJ., and Johnson, J.(Ret.), Specially Assigned

COHEN J.

¶ 1.This case involves a foot bridge on the property of landowners, Nicole Ritchie and Elisabeth McIntee, in the Town of Underhill.Neighbors David Demarest and Jeff Moulton appeal an Environmental Division order holding that improvements to the bridge amounted to a de minimis use of private property for recreational purposes and, therefore, were not subject to the Town's zoning regulations.We agree that landowners' improvements to the bridge are not subject to zoning regulation and affirm.

¶ 2.The record provides the following background facts, which are not disputed.In May of 2021, landowners worked with a local mountain biking nonprofit, Brewster River Mountain Bike Club, to replace the foot bridge at issue in this case to make a more secure crossing over Settlement Brook for access to the Club's recreational trail network.The old bridge was two feet wide and eight feet long and rested on the bed of the brook.The new bridge measured four feet wide and sixteen feet long and spanned the brook at the top of the banks.A new ramp was also put in place to connect the existing bike trail to the new bridge, and the old bridge was repurposed as a boardwalk a few feet away.Uncontested trail camera footage recorded forty people crossing the bridge over the course of one month.The new bridge was connected to a trail network managed by the Club across various parcels of private property, subject to verbal agreements with each property owner including landowners.

¶ 3.In August of 2021, the Town of Underhill Developmental Review Board granted the Club a retroactive conditional-use permit and variance for the bridge and ramp.Neighbors appealed that decision to the Environmental Division, arguing that the Club lacked standing to seek a permit and that the bridge contravened the Town regulations.After a site visit and one-day merits hearing, the Environmental Division made the following findings regarding the improvements on landowners' property.Installation of the new bridge created little to no land disturbance to either the brook or surrounding area.Since its installation, the bridge had been used by landowners, their neighbors, and some other members of the public for recreational purposes such as walking, hiking, and mountain biking.The bridge was open to the public but information about the bridge and other trails used by the Club was not readily available and there was no map of the trail network.There were no fees to use the trail system.The Environmental Division rendered the underlying permit void, holding that the bridge was a de minimis recreational use of private property and, therefore, not subject to zoning regulations.The Environmental Division made no findings concerning whether the bridge was permissible if the Underhill zoning regulations applied.

¶ 4.On appeal, neighbors argue that the new bridge is not a de minimis recreational use and that the Town's zoning regulations apply to the improvements made to the bridge and ramp.They contend that the Town's zoning regulations preclude this improvement and that the Club lacked standing to seek a permit in the first place.We disagree.An appropriate reading of the zoning ordinance's intended scope indicates that the small bridge-which was created with little to no land disturbance, has a small footprint, was built with wood and hand tools, poses minimal health and safety risks, was used recreationally, and is aligned with zoning ordinance goals to encourage recreation-is a de minimis recreational use of private property outside the scope of the zoning ordinance.Consequently, we do not reach neighbors' other argument that the underlying permit was given in error and that the Club lacked standing.

¶ 5."We review the [Environmental Division's] factual findings for clear error and its findings of law de novo."In re Korrow Real Est., LLC Act 250 Permit Amend. Application, 2018 VT 39, ¶ 17, 207 Vt. 274, 187 A.3d 1125."We approach the interpretation of [zoning] ordinances and permits as a legal question that we resolve without deference to the trial court."In re Confluence Behav. Health, LLC, 2017 VT 112, ¶ 17, 206 Vt. 302, 180 A.3d 867.^[1] Furthermore, "because zoning ordinances are in derogation of private property rights, they must be construed narrowly in favor of the property owner."In re Application of Lathrop Ltd. P'ship I, 2015 VT 49, ¶ 29, 199 Vt. 19, 121 A.3d 630(quotation omitted).Therefore, we review the Environmental Division's legal conclusion that the bridge is a de minimis recreational use and not subject to zoning regulations without deference to the Environmental Division.

¶ 6.We have addressed de minimis recreational uses in two prior cases: In re Scheiber, 168 Vt. at 539, 724 A.2d at 478, andIn re Laberge Moto-Cross Track, 2011 VT 1, ¶ 7.In Scheiber, the landowners created a shooting range by "removing approximately ten trees, moving topsoil to fashion an earthen backstop or berm, and erecting a small platform."168 Vt. at 535, 724 A.2d at 476.The Court did not specify what sort of materials the landowners used to create the platform or whether the materials were brought in from offsite.Id.The shooting range was thirty feet wide and 300 feet long.Id.The landowners used the range for target shooting with family, friends, and members of a local club.Id.This Court determined that the shooting range was not a "structure,""accessory use," or "private club," nor constituted "private outdoor recreation" as defined by the applicable zoning ordinance and that the ordinance did not explicitly address target shooting.Id. at 536-38, 724 A.2d at 476-77.The analysis focused on several different factors that distinguished the shooting range from the type of "land development" given as examples in the ordinance that would require a permit.Id. at 536, 724 A.2d at 477.The Court pointed out the minimal land disturbance and alteration, small size of the platform, and low volume of public use as differentiating features.Id.We concluded that the shooting range fell into the category of "certain recreational activities . . . [that] are de minimis uses of private property which are neither regulated nor contemplated by the zoning regulations."Id. at 539, 724 A.2d at 478.

¶ 7.In Laberge, the landowners created a moto-cross track on their private property by "fashioning a series of earthen jumps and berms using a small lawn-tractor to shift on-site excavation materials left over from the earlier construction of their house and driveway."2011 VT 1, ¶ 2.The track was approximately three feet wide, one-half mile long, and snaked over about one acre of land.Id.The landowners used their track for moto-cross races with their family, friends, and guests.Id.¶ 3.This Court held that the track was not a "structure" or a "substantial change in use" as defined by the zoning ordinance.Id.¶ 13.Once again, we distinguished between the minimal changes needed to make the track and the significantly more disruptive examples given in the zoning ordinance.Id.¶ 11.We specifically pointed to the lack of impact to the land including minimal construction and no excavation, the small area of land affected, the lack of external material used, the lack of change to the character of the property, private use, and lack of health and safety risks.Id.We concluded that there was "no reason to believe [the track] was contemplated for exclusion by the zoning regulations."Id.¶ 15.

¶ 8.From these prior cases, several considerations emerge as relevant to determining whether a land improvement is a de minimis recreational use of property and, therefore, not subject to local zoning.These include: (1) the extent to which the use is explicitly addressed in the zoning ordinance, (2) the land disturbance created by the use, (3) the size of the use's footprint relative to the overall lot size, (4) the type of materials used, (5) the use's potential impact on health and safety, (6) whether the use is recreational, and finally, (7) whether the outcome aligns with the goals of zoning.

¶ 9.We first look to the extent to which the bridge is explicitly addressed in the Town's zoning ordinance.We use familiar rules of statutory and ordinance construction."Words in statutes and ordinances should be given their plain meaning."In re Gregoire, 170 Vt. 556, 559, 742 A.2d 1232, 1235(1999)(mem.)."We adopt a construction that implements the ordinance's legislative purpose, and, in any event, will apply common sense."In re Lashins, 174 Vt. 467, 469, 807 A.2d 420, 423(2002)(mem.)(quotation and citation omitted).Furthermore, it is a well-established rule in this state that in construing land use regulations "any uncertainty must be resolved in favor of the property owner."In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 22, 195 Vt. 586, 93 A.3d 82.

¶ 10.Based on several provisions of the Town's regulations, neighbors argue that the bridge is subject to Underhill's zoning ordinance as "land development."The regulations require that "[n]o land subdivision or development shall commence in the Town of Underhill except in conformance with these regulations" and specify that "[l]and subdivision or development not specifically authorized under these regulations . . . is...