In re Dunnett, 98-314.

• Decision Date: 04 May 2001
• Docket Number: No. 98-314.,98-314.
• Citation: 776 A.2d 406
• Court: Vermont Supreme Court
• Parties: In re George DUNNETT.

776 A.2d 406

In re George DUNNETT.

No. 98-314.

Supreme Court of Vermont.

May 4, 2001.

Matthew T. Birmingham, III of Fink & Birmingham, P.C., Ludlow, for Appellant.

George Dunnett, Pro Se, Ludlow, Appellee/Cross-Appellant.

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

MORSE, J.

Permit applicant Kenneth Tofferi, owner and operator of Totem Pole Ski Shop, Inc., appeals from the decision of the environmental court granting him a conditional use permit, but denying him a variance in connection with renovations of a ski shop located on a parcel of land in the Village of Ludlow. Tofferi argues on appeal that the environmental court erred by conducting a de novo hearing with regard to his applications instead of simply reviewing the decisions of the Ludlow Development Review Board on the record and that the court improperly denied him a variance. Adjoining landowner, George Dunnett, cross-appeals and argues that the court erred by granting Tofferi a conditional use permit. We affirm.

Tofferi owns and operates a ski shop on the corner of Pond Street and West Hill Road in the Village of Ludlow. Tofferi and Dunnett had previously operated the business as partners until Tofferi bought out Dunnett's share sometime around 1982. Dunnett now runs a separate ski shop on property he owns that adjoins the parcel that is the subject of this appeal. He also resides on the adjoining property.

The property on which the shop is located is comprised of what was originally two separate parcels of land designated 16½ and 18 Pond Street which had independent structures that Tofferi later connected. It is located in a residential-commercial district within the village. In December 1995, Tofferi applied to the village for a conditional use permit in order to undertake additional renovations to the property. He subsequently sought a variance which also appeared to be necessary for the proposed construction.

The renovations entailed improvements to and rebuilding of existing structures, as well as demolishing a portion of the existing ski shop and erecting an addition in a new location on the property. Tofferi planned to undertake the changes in part to alleviate a traffic problem created by the parking configuration on his lot. According to testimony before the environmental court, the village had threatened Tofferi with litigation and planned to deny him a certificate of occupancy unless he fixed his parking accommodations.

Tofferi's proposed changes resulted in a reduction in the square footage of the footprint of the building and a reduction in the overall gross square footage of the structure. Tofferi's lot, measuring roughly .37 acre, does not meet the minimum lot size requirement for the district in which it is located, however. Furthermore, the proposed new structure did not meet the minimum setback requirements contained within the village's zoning ordinance. Nor did the structures, either before or after the changes, conform with the maximum lot coverage limit established by the village.

Tofferi applied for a conditional use permit for the changes to the existing structures and a variance with respect to the new structure, both of which were granted by the village after hearings on the matter. Dunnett, Tofferi's neighbor, then appealed the decisions to the environmental court. After a de novo hearing, the court granted Tofferi a conditional use permit, excepting a dormer for which the court determined that Tofferi needed to seek an additional variance, and concluded that he was not entitled to a variance for the new structure based on a determination that he failed to meet any of the five criteria necessary for its grant. Tofferi now appeals to this Court, and Dunnett cross-appeals.

Tofferi argues that two 1995 resolutions by the village board of trustees creating the development review board and establishing that the board be governed by the Municipal Administrative Procedure Act entitle the board to on-the-record review by the environmental court pursuant to 24 V.S.A. § 4471(a) (allowing for on-the-record appeals to the environmental court from decisions of municipal boards). Both Tofferi and the environmental court also refer to an additional resolution or motion by the board of selectmen establishing that appeals of the development review board to the environmental court be on the record. This motion or resolution does not appear anywhere in the record, however.

The environmental court determined that the board's practice of simply keeping minutes of hearings as opposed to audio or video recordings did not satisfy the requirement that proceedings "be recorded" found in the Municipal Administrative Procedure Act, 24 V.S.A. § 1205(c), the application of which is statutorily required for on-the-record review under § 4471, and the requirement of an "adequate record" found in § 4471 itself. We find no error in the court's conclusion.

As the court noted, if minutes were sufficient to qualify for on-the-record review, the new amendments regarding the record, i.e., that proceedings "be recorded" and that an "adequate record" be produced, would have been superfluous because municipal boards have consistently been required to keep minutes under 24 V.S.A. § 4462 since its enactment in 1968.1967, No. 334 (Adj.Sess.), § 1, amended by 1993, No. 232 (Adj.Sess.), § 14; see also Payea v. Howard Bank, 164 Vt. 106, 107, 663 A.2d 937, 938 (1995) (when interpreting a statute, we will not construe it in way that renders language pure surplusage). Additionally, because municipal boards are required to keep minutes, all of their decisions would qualify for on-the-record review under Tofferi's argument if otherwise in compliance with the Municipal Administrative Procedure Act. This result is inconsistent with the statutory scheme which contemplates that only certain proceedings would be reviewed on the record, with the remainder proceeding in the environmental court de novo. See 24 V.S.A. § 4471(a) (requiring that municipal legislative bodies define "what magnitude or nature of development proposal" is the subject of on-the-record review); 24 V.S.A. § 4472(a) (providing that appeals from municipal boards, "if not on the record, as allowed under section 4471 of this title" shall be de novo).

Lastly, V.R.C.P. 74(d), applicable to on-the-record appeals via § 4771(a), provides that the record on appeal to the environmental court shall consist of, among other things, "a transcript of any oral proceedings," which entails a verbatim record of the proceedings. See Black's Law Dictionary 1497 (6th ed.1990) (defining transcript as a "[w]ord-for-word typing of everything that was said `on the record' during the trial"). Therefore, the environmental court's determination that the taking of minutes did not satisfy the requirements of § 4471 was not error. Because the hearings on Tofferi's applications were not recorded by the development review board, the court properly conducted a de novo hearing on his requests for a conditional use permit and a variance.

Tofferi also argues that the court improperly denied him a variance for the construction of the new structure on the property. The court determined that Tofferi had failed to meet any of the five criteria necessary for the grant of a variance under the village's zoning regulations. Village of Ludlow, Vt., Zoning and Flood Hazard Regulations § 350.3 (1990) [hereinafter Regulations]; see also 24 V.S.A. § 4468(a) (listing criteria necessary for grant of variance). We have stated, "[a] zoning variance must be based on a showing of conformance with each of the five statutory criteria set forth in 24 V.S.A. § 4468(a)." Blow v. Town of Berlin Zoning Adm'r, 151 Vt. 333, 335, 560 A.2d 378, 379 (1989) (emphasis added). Therefore, if we find that the court did not err on any one of the factors, we must affirm. See Gadhue v. Marcotte, 141 Vt. 238, 240, 446 A.2d 375, 376 (1982). Furthermore, we will uphold the environmental court's construction of a town's zoning ordinance unless clearly erroneous, arbitrary or capricious, In re Miserocchi, 170 Vt. 320, 323, 749 A.2d 607, 610 (2000); see also In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998) (applying standard to environmental court's construction of town zoning ordinance which mirrored statutory language), and review determinations of fact for clear error. See In re Miller, 170 Vt. 64, 69, 742 A.2d 1219, 1223 (1999).

Because we cannot say that the court erred in its determination on each and every factor, we are compelled to affirm the denial of the variance. For instance, the court determined that a variance was not necessary for reasonable use of the property, see Regulations § 350.3(2) (requiring that authorization of variance is necessary to enable reasonable use of the property); 24 V.S.A. § 4468(a)(2) (same), noting that the property has several current structures that may serve as a retail space for the ski shop. Cf. Gadhue, 141 Vt. at 240-41, 446 A.2d at 377 (reversing judgment granting variance for addition of structure to property based on a failure to meet second criterion and noting "the property was already developed and being used as both a residence and a retail business"); Sorg v. North Hero Zoning Bd. of Adjustment, 135 Vt. 423, 426, 378 A.2d 98, 101 (1977) (reversing judgment granting a variance for an addition to an existing inn and noting "the property here is not only useable as an inn, but has been and still is so used, since 1890"). The court's determination that Tofferi can currently make reasonable use of the property without the addition of the new structure, and therefore failed to qualify for a variance under the second criterion, is neither clearly erroneous, arbitrary nor capricious. See Gadhue, 141 Vt. at 240, 446 A.2d at 376 (noting that "if any reasonable use can be made of the property" in conformity with current zoning regulations, criterion two is not satisfied) (emphasis added).

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