IN RE DEPT. OF BLDGS. AND GENERAL SERVICES

• Decision Date: 10 October 2003
• Docket Number: No. 02-134.,02-134.
• Citation: 838 A.2d 78
• Parties: In re Appeal of DEPARTMENT OF BUILDINGS AND GENERAL SERVICES.
• Court: Vermont Supreme Court

838 A.2d 78

In re Appeal of DEPARTMENT OF BUILDINGS AND GENERAL SERVICES.

No. 02-134.

Supreme Court of Vermont.

October 10, 2003.

William H. Sorrell, Attorney General, William H. Rice, Assistant Attorney General, and Stacy A. Butler, Special Assistant Attorney General, Montpelier, for Appellant.

J. Christopher Callahan and Brendan P. Donahue of Brady & Callahan, P.C., Springfield, for Appellee.

Jon Groveman, Montpelier, for Amicus Curiae Vermont League of Cities and Towns.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

¶ 1. The Vermont Department of Buildings and General Services (State Buildings) appeals from the environmental court's holding that the Town of Windsor (Town) may regulate aspects of certain uses—specifically, state or community owned and operated institutions and facilities—beyond those specifically enumerated in 24 V.S.A. § 4409(a) so long as the Town makes reasonable provision for the location of the use. More precisely, State Buildings maintains that, despite the Town's reasonable provision for the location of a state-owned maintenance facility, the Town exceeded its regulatory authority under 24 V.S.A. § 4409(a) by regulating the use of the facility as well as particular physical characteristics not enumerated in the statute. We agree and reverse.

¶ 2. The State of Vermont owns a parcel of land situated in a resource (R5) zoning district in the Town. The parcel contains two facilities, the Southeast State Correctional Facility and the Southern District Maintenance Facility, which are operated by different state departments. The correctional facility's fence and perimeter roadway separate it from the maintenance facility, which consists solely of an office building and an old one-bay garage. The maintenance facility is used by the State Buildings as an office for its southern district and for maintenance vehicles and equipment necessary for its maintenance activities.

¶ 3. On July 10, 2000, State Buildings applied for a zoning permit to replace the maintenance facility's existing one-bay garage with a three-bay garage. On July 19, the Windsor Zoning Administrator ruled that the application required site plan review by the Planning Commission and conditional use review by the Zoning Board of Adjustment (ZBA). State Buildings did not contest this determination. The Planning Commission approved the site plan a month later on August 21, and this approval was not appealed. On August 28, the ZBA approved the conditional use application, finding that the garage was an accessory structure allowed as a conditional use in the district and met the general standards found in the zoning ordinance and 24 V.S.A. § 4407(2). The findings reflect the representations of State Buildings in its application. The approval was subject to six conditions as follows:

2. Applicant must construct, maintain and operate the proposed 30×50' 3-bay replacement garage and related improvements in strict conformance with the Site Plan and project description submitted by them and specifically identified in the findings of fact.

3. The building shall meet all Labor and Industry requirements.

4. Landscaping shall be maintained at the standards consistent with the surrounding buildings.

5. Any exterior lighting added during construction will be directional in nature to shine forward and down.

6. Any proposed signage will meet the sign regulation of the Windsor Zoning Bylaws.

7. Applicants shall construct all improvements, including landscaping, authorized by this approval within one year of the date of this approval or this approval shall automatically become null and void.

¶ 4. State Buildings appealed the ZBA decision and the permit to the environmental court, arguing that the Town of Windsor exceeded its regulatory authority under 24 V.S.A. § 4409(a) by regulating aspects of the project, such as the intended use, beyond those enumerated in § 4409(a), and by requiring the project to conform to Town zoning requirements and bylaws. Specifically, State Buildings attacked conditions 2, 3, 5, 6, and 7 as beyond the power of the ZBA. In connection with its challenge to condition 2, it disputed ten of the findings of fact which reflected State Buildings' description of the new maintenance building or its use. State Buildings argued that the Town did not have the power to require it to adhere to its description through an approval condition. It also raised the more general question of whether the ZBA has the authority to grant conditional use approval for a state facility based upon findings of facts and conclusions of law that address elements outside the scope of 24 V.S.A. § 4409(a).

¶ 5. State Buildings filed for summary judgment, relying upon 24 V.S.A. § 4409(a), which provides:

Unless reasonable provision is made for the location of any of the following in a [zoning] bylaw ... the following uses may only be regulated with respect to size, height, bulk, yards, courts, setbacks, density of buildings, off-street parking and loading facilities and landscaping or screening requirements: ... (2) State or community owned and operated institutions or facilities....

State Buildings argued that § 4409(a) greatly restricts a municipality's ability to regulate state-owned land uses. Specifically, State Buildings argued that a municipality can regulate only with respect to the list of elements in the statute plus location, but with respect to the latter only if the municipality makes reasonable provision for the location of the state institution or facility within the municipality. The Town countered with its own motion for summary judgment, arguing that State Buildings read the statute too narrowly. It argued that § 4409(a) allows a municipality to regulate state-owned facilities and institutions to the same extent as private land uses as long as the municipality makes reasonable provision for the location of the state facilities and institutions. Only if the municipality fails to make reasonable provision for these facilities and institutions, the Town asserted, is it restricted to the statutory list of permissible zoning regulation subjects. Finally, the Town claimed that it made reasonable provision for the location of the correctional center and maintenance facility, and, as a result, it could apply its zoning regulations fully to the State Buildings' application with no limits imposed by § 4409(a).

¶ 6. Although the parties framed almost exclusively a question of law turning on the proper construction of § 4409(a), their filings did reveal a dispute over the nature of the development application and the review required under the zoning ordinance. The Town asserted that the maintenance facility was part of the correctional facility, which was an approved conditional use in the zoning district in which it was sited. Thus, the Town applied conditional use review to the State Buildings' development application. State Buildings claimed that the maintenance facility was a separate use, adjoining but unconnected to the correctional center. As the environmental court noted, a difficulty with State Buildings' position was that the zoning ordinance did not authorize the maintenance facility as either a permitted or conditional use in the district in which it was located. The ordinance did provide for Public Building: Maintenance & Storage as a conditional use in other districts. Thus, the court concluded that under State Buildings' theory, the application could be allowed only as an expansion to a preexisting nonconforming use or as an expansion to a use which holds an erroneously issued but final permit.

¶ 7. The environmental court did not resolve this conflict because it found that § 4409(a) did not limit the Town's ability to regulate the proposed replacement of the maintenance facility. In reaching this conclusion, it adopted the Town's interpretation of § 4409(a) and found that the Town had made reasonable provision for the location of state-owned facilities and institutions in its zoning ordinance. Thus, it affirmed the permit issued by the ZBA. State Buildings appeals here, making the same argument regarding the proper interpretation of 24 V.S.A. § 4409(a).

¶ 8. The primary question presented to this Court is whether the environmental court erred in interpreting 24 V.S.A. § 4409(a) to mean that once a municipality provides a reasonable location for a state facility, the municipality may regulate all aspects of the state project, even those not enumerated in the statute. Issues concerning the proper construction of a statute are questions of law, and thus reviewed on a nondeferential and plenary basis. State v. Koch, 169 Vt. 109, 112, 730 A.2d 577, 580 (1999).

¶ 9. The parties agree on part of the meaning of the statute. They agree that if a municipality fails to make a "reasonable provision ... for the location of ... State... owned and operated institutions and facilities," a municipality can regulate those institutions and facilities through zoning only "with respect to size, height, bulk, yards, courts, setbacks, density of buildings, off-street parking and loading facilities and landscaping or screening requirements." 24 V.S.A. § 4409(a)(2). They disagree, however, on the municipality's regulatory power if it makes reasonable provision for the location of state-owned and operated facilities and institutions. In the Town's view, a municipality is then free to exercise the same zoning power over those facilities and institutions as it could if they were privately owned— that is, without regard to any limitations imposed by § 4409(a). In State Buildings' view, the Town is then free to regulate location in addition to the statutory elements, but nothing more.

¶ 10. We have twice addressed § 4409(a) in the context of a state development application, but neither decision clearly answers the question before us. In Morse v. Vermont Division of State Buildings, 136 Vt. 253, 388 A.2d 371 (19...