In re Jackson

• Decision Date: 09 May 2003
• Docket Number: No. 02-236.,02-236.
• Parties: In re Appeal of Martha and Ira JACKSON (Town of Waitsfield, Appellant).
• Court: Vermont Supreme Court

830 A.2d 685

In re Appeal of Martha and Ira JACKSON

(Town of Waitsfield, Appellant).

No. 02-236.

Supreme Court of Vermont.

May 9, 2003.

Amanda S.E. Lafferty of Stitzel, Page & Fletcher, P.C., Burlington, for Appellant.

Christina A. Jensen of Lisman, Webster, Kirkpatrick & Leckerling, P.C., Burlington, for Appellees/Cross-Appellants.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

DOOLEY, J.

¶ 1. This case arises from the modification of a barn, sited within the setback distance from a watercourse under zoning of the Town of Waitsfield (the Town), and owned by Ira and Martha Jackson (the Jacksons). The barn modification was initially permitted by the Town, but the owners added another floor to the modified barn without seeking an amendment to the permit. After the Town Zoning Board of Adjustment (ZBA) refused to issue a permit for the expanded barn, and ordered that the upper story be removed, the environmental court reversed the standard used by the ZBA, allowed the owners to litigate whether the watercourse was a stream, and held that it was. Both the owners and the Town appeal, contesting the parts of the environmental court decision adverse to them. We vacate the environmental court decisions and remand for issuance of a permit.

¶ 2. Although the foregoing states the case, the primary question presented is whether municipalities may authorize zoning boards of adjustment to grant special exceptions to deviate from area restrictions, and if so, whether there are minimum statutory standards that apply. We find that the so-called area special exception is a type of conditional use permit, and, therefore, the statutory criteria for conditional uses apply.

¶ 3. The Jacksons own 7.3 acres of land along Shepard Brook in Waitsfield. The property contains an old mill pond and an artificially-created watercourse that once diverted water from Shepard Brook to the pond, through a mill, and back to the brook. The mill is now long gone. The upstream segment of the watercourse — from the brook to the pond — has been replaced by a pump and pipeline that the Jacksons sometimes use to feed the pond. Otherwise, the pond fills from precipitation events, surface flow, groundwater, and agricultural runoff from an adjacent property. Overflow from the pond intermittently drains through the downstream segment — the former millrace¹ — which runs past a barn, though a driveway culvert, and then back towards Shepard Brook. It is disputed how much and how often water runs through the millrace, and whether the water dissipates before it reaches the brook.

¶ 4. The Jacksons' property is located in Waitsfield's Agricultural-Residential zoning district. The Town zoning ordinance requires that all structures in this district be set back fifty feet from the top of a stream bank, or seventy-five feet from the edge of the stream where there is no identifiable bank. Town of Waitsfield Zoning Ordinance, Art. III, § 3(D) (1995). In 1998, the Jacksons applied to the Waitsfield Zoning Board of Adjustment for a permit to rebuild and enlarge the barn, one end of which sits just twelve feet from the millrace. The proposed enlargement would be no closer to the stream than the footprint of the existing barn. Although the Jacksons contested at the time whether the millrace was a stream for purposes of Art. III, § 3(D), they also asked the ZBA to vary the stream setback requirements under a special provision authorizing the ZBA to do so "[i]f the applicant can demonstrate that setback of the structure less than the above standard will be accomplished in a manner which will not adversely affect water quality or scenic beauty." Town of Waitsfield Zoning Ordinance, Art. V, § 9(A). After providing public notice and a hearing, the ZBA varied the stream setback under the ordinance. It issued a permit authorizing the Jacksons to reconstruct the barn using salvaged materials, and to expand it from a 30' × 18' × 24' shed/barn into a 30' × 30' × 24' combined barn, garage, and storage facility. The permit expressly limited the reconstruction and enlargement of the barn to the plans submitted by the Jacksons on September 29, 1998. Additionally, four conditions were included in the permit to protect water quality and scenic beauty. The Jacksons did not appeal the permit, and it became final pursuant to 24 V.S.A. §§ 4471, 4472(d).

¶ 5. Sometime thereafter, the Jacksons changed their minds about the barn's design. Their architect discussed these changes with the Town zoning administrator by telephone. The Jacksons claim that the zoning officer orally advised the architect that the Jacksons could amend their permit after construction by submitting asbuilt plans and payment of an additional fee, although the Town disputes this. The Jacksons then went ahead with construction. The rebuilt barn followed the 1998 permit requirements on the ground floor, but the Jacksons added a full second story housing a half-court for indoor tennis and basketball, a balcony, and a bath plumbed into an existing septic system. They used all new materials, added ten feet in height, and doubled the permitted size of the barn to 1,800 square feet (30' × 30' × 34').

¶ 6. After construction, the Jacksons applied for a revised zoning permit for the as-built structure. The zoning administrator denied the request for a permit, and served notice that the barn was in violation of the 1998 permit. The Jacksons then appealed to the ZBA, contesting the denial of the permit and the notice of violation on the grounds that the millrace was not a stream, and therefore there was no basis to deny the permit or to enforce the 1998 permit conditions. Before it heard the case, the ZBA informed the Jacksons that because the original barn violated the stream setback requirement, it was a noncomplying structure and a nonconforming use under 24 V.S.A. § 4408. Therefore, the ZBA warned, in order to receive approval for the as-built barn, the Jacksons had to also apply for a variance pursuant to the zoning ordinance's provisions for noncomplying structures, Town of Waitsfield Zoning Ordinance, Art. V, § 11(B), and a conditional use permit pursuant to the provisions for nonconforming uses, id. Art. V, § 11(A). The ZBA acknowledged that it had not required this review when it approved the rebuilding of the barn in 1998. The Jacksons applied as requested "under protest."

¶ 7. Subsequently, in August 2000, the ZBA upheld its 1998 decision that the millrace was a stream. It concluded, however, that its 1998 decision to apply the Town's stream setback exception, Art. V, § 9, without requiring general variance and conditional use review, did not comport with state law. The ZBA denied the permit application primarily because it did not meet the requirements of a variance under Art. IV, § 4, which incorporates the variance standards of 24 V.S.A. § 4468(a). It upheld the administrator's determination that the Jacksons were in violation of their 1998 zoning permit, and ordered the Jacksons to remove all portions of the barn that did not comply with the September 29, 1998 plans. ¶ 8. The Jacksons appealed the ZBA's rulings to the environmental court. Meanwhile, the Town sought an injunction from the environmental court to enforce the ZBA's order requiring the Jacksons to remove the noncompliant construction. The two cases were consolidated, and shortly thereafter the parties filed cross-motions for summary judgment. By the time of this appeal, both sides had fundamentally changed their legal position from that in the 1998 proceeding. The Jacksons, who were originally willing to accept the Town's characterization of the millrace as a stream to obtain their permit, were now challenging this characterization. The Town ZBA, which originally ruled that the Jacksons must meet only the standards of the special provision in Art. V, § 9 of the zoning ordinance to build in the stream setback, were now ruling that the Jacksons must additionally meet both variance and general conditional use standards.

¶ 9. On October 10, 2001, the environmental court ruled that, contrary to the Town's claims, the Jacksons were not precluded by 24 V.S.A. § 4472(d) from contesting whether the millrace was a stream. Next, the court held that the stream setback special exception was valid under 24 V.S.A. § 4407, and therefore ordered the ZBA to reconsider the Jacksons' application to revise their 1998 permit. Lastly, the court held that if a special exception was granted, no variance or conditional use permit would be required. Before remanding to the ZBA, the environmental court held a hearing on the merits to determine whether the millrace qualified as a stream for the purposes of the Waitsfield zoning ordinance. The court found that, although it was originally artificially created and although water flow is sometimes intermittent, the millrace is indeed a protected stream under the ordinance. This appeal followed.

¶ 10. On appeal, the Town argues that the Jacksons are precluded from contesting whether the millrace is a stream because they failed to appeal from the 1998 decision to that effect. Second, it argues that the environmental court erred in not requiring the Jacksons to obtain a variance and a conditional use permit, in addition to the special exception, to convert the barn because it was a nonconforming use within the stream setback.

¶ 11. In the decisions we are reviewing, the environmental court granted summary judgment finding no disputed issue of material fact. In reviewing a summary judgment ruling, we apply the same standard as the trial court and will affirm the grant of summary judgment "if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Springfield Hydroelectric Co. v. Copp, 172 Vt. 311, 313, 779 A.2d 67, 70 (2001); V.R.C.P. 56(c).

¶ 12. We begin with the second issue raised by the Town because we...