In re Jenness and Berrie, 07-318.

• Decision Date: 05 September 2008
• Docket Number: No. 07-318.,07-318.
• Citation: 968 A.2d 316,2008 VT 117
• Parties: In re Appeal of JENNESS and BERRIE.
• Court: Vermont Supreme Court

968 A.2d 316

2008 VT 117

In re Appeal of JENNESS and BERRIE.

No. 07-318.

Supreme Court of Vermont.

September 5, 2008.

Thomas W. Costello of Costello Wright and Timothy J. O'Connor, Jr. of O'Connor Law Offices, Brattleboro, for Appellants.

Robert M. Fisher of Fisher & Fisher Law Offices, Brattleboro, for Appellee Town of Dummerston.

Walter G. French, West Dummerston, for Appellees/Cross-Appellants Enello.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and GREARSON, D.J., Specially Assigned.

REIBER, C.J.

¶ 1. This appeal from the Environmental Court raises three issues. The first, raised by permit applicants Jenness and Berrie, is whether the court erred in concluding that a lot they owned was not entitled to an existing-small-lot exemption under 24 V.S.A. § 4406(1).¹ The second issue, raised on cross-appeal by neighboring landowners, is whether the Environmental Court erred in holding that an existing small lot need not comply with the generally applicable dimensional requirements of the local zoning ordinance. Third, neighbors contend that the court erred in concluding that this property has three "front" setbacks and one "side" setback, but no "rear" setback. Because the court's conclusion that the lot had merged with a lot on the other side of a public road was erroneous as a matter of law, we reverse and remand. We find no error on either of the cross-appeal issues.

¶ 2. The property at issue is a 1.1-acre field in the Town of Dummerston. The field was in common ownership between 1961 and 2001 with a 0.9-acre parcel—site of an existing house and garage—on the other side of a town road. In 2001, the common owner conveyed the field to applicants and the 0.9 acres to a third party. The field is roughly the shape of a pear sliced in half lengthwise, and measures roughly 500 feet along its long axis, from east to west. At its midpoint, the field measures approximately 110 feet from north to south, and the north-south dimension diminishes gradually on the east and west ends of the property. The field is bordered to the east, north, and west by a curving road, and to the south by the property of neighbors who are parties to this appeal.

¶ 3. The Town passed its first zoning ordinance in 1971. Under that ordinance, the field is subject to Rural Residential zoning requirements, including a two-acre minimum lot size. As mandated by 24 V.S.A. § 4406, the ordinance contains an exception to the minimum lot size for small lots already in existence at the time of the passage of the ordinance. As noted, this field was in common ownership with the 0.9-acre parcel across the street in 1971, although both properties were held by separate deeds.

¶ 4. Applicants bought the field in 2001, and first applied for a permit to place a manufactured home on the site in February 2003. That application, #2796, requested a variance to the ordinance's presumptive seventy-five-foot rear-yard setback, and designated the southern portion of the field as the "rear" yard. In this application, the front of the house faced almost due north. The zoning administrator denied the variance request on February 11, 2003. Applicants appealed to the zoning board of adjustment (ZBA), which also denied the request. Applicants' subsequent appeal to the Environmental Court was dismissed with prejudice on January 13, 2004, leaving the denial of the variance request in place, and allowing applicants to submit a new and different application to the zoning administrator at a later date.

¶ 5. In late June of 2003, while application # 2796 was still pending, applicants had submitted application # 2831 to the zoning administrator. This time, applicants had rotated the proposed house ninety degrees, so the front of the house faced east. On this application, applicants designated the western border of the field as the "rear." The zoning administrator denied this application on July 16, 2003, finding that the application "[did] not meet Lot Depth Minimum." No appeal was taken from this denial.

¶ 6. Applicants submitted their third application, # 2872, on March 23, 2004, after both previous applications had been finally resolved against them. The house was now rotated back to the original north-south orientation. In application # 2872, the front and back of the house were not labeled, but the plan now designated the eastern portion of the field as the "rear setback" and the west as the "front." The zoning administrator granted this application without written explanation. Neighbors appealed, and the ZBA revoked the permit, reasoning that the field was not an existing small lot, that it did not meet the minimum width requirements, and that applicants could not rotate the house to satisfy the width requirement because they had failed to appeal the denial of application # 2831.

¶ 7. Applicants appealed to the Environmental Court on July 29, 2004, and both parties eventually moved for summary judgment.² In its decision on those motions, issued in September 2005, the Environmental Court reached several conclusions. First, it noted that the location of the front, rear, and side setbacks would be determined based on the location and shape of the field, without reference to the orientation of the building. That is, merely rotating the proposed building would not change the setbacks. Because of the unusual shape of the lot, the court determined that it has three front yards—facing three segments along the curve of Stickney Brook Road—no rear yard, and one side yard bordering neighbors' land to the south. The court also concluded that the existing-small-lot exemption "reliev[es] an applicant from the lot size, width and depth requirements but [from] no other dimensional requirements," i.e., not from setback requirements. Finally, the court held that, because the size of the lot and the proposed placement of the building had changed since the last ZBA decision, the revised application would still need approval from the zoning administrator and the ZBA.

¶ 8. In its order disposing of the summary-judgment motions, the Environmental Court also held that issues of fact remained in dispute as to whether, at the time the Dummerston zoning ordinance was adopted, the field had "merged" with the 0.9-acre parcel, and whether the field was entitled to the existing-small-lot exemption.³ An evidentiary hearing was held on that question, and the Environmental Court issued a decision in July 2007. The dispositive issue in deciding the question, according to the court, was "whether, in 1971 . . . . Stickney Brook Road's use was such that it functionally separated [the field] from the 0.9-acre parcel across the road." After hearing testimony concerning the character and usage of the road in 1971, the court concluded that the road was so little used at that time that it did not prevent the two parcels from being used "in the ordinary manner" as one parcel. Thus, the court concluded that the parcels had merged and that the field was not entitled to the existing-small-lot exemption. These appeals followed.

I. Merger

¶ 9. We first consider applicants' contention that the Environmental Court erred in concluding that the public road did not prevent the merger of the two parcels. Specifically, applicants contend that they were entitled to judgment as a matter of law that the two parcels, because they were separated in 1971 by a town highway, could not merge. Applicants urge us to rule that this issue is conclusively resolved in their favor by our recent decision in In re Bailey, 2005 VT 38A, 178 Vt. 614, 883 A.2d 765 (mem.). We first outline briefly the state statutes and local regulations at issue in this appeal.

¶ 10. As noted, the Town enacted zoning bylaws for the first time in 1971. Under those bylaws, the parcels at issue here are located in the Rural Residential zoning district. As required by statute, the bylaws exempt certain preexisting small lots from that district's presumptive two-acre lot-size minimum. See 24 V.S.A. § 4406; Town of Dummerston Zoning Bylaws § 601. Applicants' field is approximately 1.1 acres in size, and thus cannot be developed without a variance unless it was an "existing small lot" at the time the bylaws became effective. Under the statute and the bylaws, an existing small lot is "[a]ny lot in individual and separate and nonaffiliated ownership from surrounding properties in existence on the effective date of any zoning regulation." Id. Such a lot "may be developed for the purposes permitted in the district in which it is located, even though not conforming to minimum lot size requirements, if such lot is not less than one-eighth acre in area with a minimum width or depth dimension of forty feet." Id. Thus, if the field was in individual and separate and nonaffiliated ownership from "surrounding properties" in 1971, it is eligible for the existing-small-lot exemption. The question before us is whether the 0.9-acre parcel, separated from the field by Stickney Brook Road, was a "surrounding" property such that the two properties merged in 1971 by virtue of their common ownership, and despite the fact that a public road separates them and renders them noncontiguous. This appeal thus turns principally on the definition of "surrounding," to which we now turn.

¶ 11. In construing a zoning ordinance, we employ ordinary rules of statutory construction. In re Vt. Nat'l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991). We consider the entire ordinance and strive to give effect to every part. Id. We will reverse the Environmental Court's construction of a zoning ordinance only if it is "clearly erroneous, arbitrary or capricious." In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998).

¶ 12. The Town places great weight on the distinction between the terms "surrounding" and "contiguous." The Town notes that § 4406(1) refers to "surrounding" properties, while the subsequent amendments to several related subsections use the term "contiguous."...