In re Korbet

• Decision Date: 27 January 2005
• Docket Number: No. 02-501.,02-501.
• Citation: 868 A.2d 720
• Parties: In re Appeal of Susan and Peter KORBET.
• Court: Vermont Supreme Court

868 A.2d 720

In re Appeal of Susan and Peter KORBET.

No. 02-501.

Supreme Court of Vermont.

January 27, 2005.

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

ENTRY ORDER

¶ 1. Brian Szad and Lois Patrie (applicants) appeal from an environmental court decision denying their application for a conditional use permit to operate a country store in the Village of Perkinsville, Town of Weathersfield. Applicants contend the court erred in denying the application by: (1) applying incorrect criteria for conditional use review and considering the store's impact on an adjacent property owner; and (2) characterizing the store as a nonconforming use. We affirm.

¶ 2. The material facts are undisputed. The subject property is located on Route 106 in the center of the Village of Perkinsville. For many years, the building housed a general store, post office, and owner's apartment. In 1996, however, the store closed, and two years later the post office moved to a location several miles outside of the village. When open, the store served as the center of activity in the village, and many residents have expressed a desire to have it reopen.

¶ 3. In 2000, applicants — who own and operate a general store in North Springfield, Vermont — purchased the subject property with plans to reopen the Perkinsville store. In June 2001, they submitted applications for site plan review and a conditional use permit (CUP). The town planning commission held hearings on the site plan application in July and August. Appellees Susan and Peter Korbet, who reside on the property just south of and adjacent to the store, attended one of the meetings and expressed some concerns about the proposal. In August, the planning commission approved the site plan, but imposed several conditions, including the elimination of certain proposed parking spaces in the area of a leach field, and the use of natural vegetation for a proposed privacy fence between the properties. The Korbets did not appeal the planning commission decision.

¶ 4. The town zoning board of adjustment held hearings on the CUP application in August and September. On September 19, the board granted the permit, requiring applicants to develop and operate the store in conformity with the approved site plan and stated hours of operation. The Korbets then appealed the board's decision to the environmental court, which conducted a site visit and held an evidentiary hearing in May 2002.

¶ 5. In October 2002, the court issued a written decision, denying the CUP application because the proposal violated the Weathersfield town bylaws. The court first noted that under the town's zoning bylaws, the store is located in an area denominated the "Village" district, where "Permitted" uses in the district include single-and two-family homes, bed and breakfast inns, and home occupations. Uses that are "permitted upon granting of a Conditional Use Approval" include "Small enterprise[s]," defined as including a "small retail store." It is undisputed that the proposed country store falls within this category of uses requiring a CUP.

¶ 6. In granting a CUP the town's zoning bylaws require the board to consider "whether the proposed use will adversely affect ... the character of the area; and/or traffic; as well as whether all applicable general and special provisions of these Bylaws would be met." Weathersfield Zoning Bylaws § 4.2.2; see 24 V.S.A. § 4407(2)(B)-(D), repealed by 2003, No. 115 (Adj.Sess.), § 119(c) (authorizing local boards to allow conditional uses if the use does not adversely affect the character of the area, traffic and bylaws in effect). Most importantly, the environmental court held that applicants' proposal did not meet the zoning requirement that "[c]ommercial... parking lots adjacent to residential uses shall be setback a minimum of fifty (50) feet." Weathersfield Zoning Bylaws § 6.13.2. The proposed parking scheme — nine spaces in the rear of the store and one on either side — violated the fifty-foot setback and lacked adequate screening from the view of persons within residential districts.¹

¶ 7. Applicants argue that the environmental court incorrectly classified the store as a nonconforming use. The bylaws define nonconforming use as "[t]he use of structures or the use of land, which use does not comply with all applicable regulations of the district in which it is located, but which did comply... prior to the adoption of these Bylaws." Id. § 6.4. The environmental court reasoned that this "small enterprise" was nonconforming because it required a CUP and one had never been obtained for the site.² The court also noted, however, that the store's status as a nonconforming use did not advantage the applicants in any way because the proposed parking plan was not preexisting. In any event, status as a nonconforming preexisting use would not eliminate the need for compliance with the current ordinance because such use has been discontinued for more than one year.

¶ 8. Thus, applicants' only alternative is to prevail on the theory of noncomplying structure. The relevant provision of the Weathersfield Zoning Bylaws states:

A structure which does not comply with all applicable regulations of the district in which it is located, but which did comply with all applicable regulations prior to the adoption of these Bylaws, or any subsequent amendments thereto, may be maintained and repaired. Such structure may also be enlarged in any manner which does not increase the degree of noncompliance, for example, such an enlargement must be in a direction where at least the minimum required setback would remain.

Id. § 6.5; see also id. § 8 (defining noncomplying structure). The environmental court held that applicants' store is a preexisting noncomplying structure under § 6.5 because it is on an undersized lot "and the building does not comply with the setback requirements." Because the "proposed project would not enlarge the building, [ ] the proposed use of the building would comply with Section 6.5." The court held, however, that noncomplying structure protection for the building does not encompass the parking lot and therefore would not obviate the need for the parking lot to comply with the current bylaws. Applicants argue that the parking lot, as well as the building, is grandfathered by this status.

¶ 9. This conclusion is sustainable only if the parking lot is considered part of the noncomplying structure. In fact, parking does not fit the definition of structure contained in the bylaws. The bylaws define "structure" as "[a]n assembly of materials for occupancy or use, including, but not limited to: a building, mobile home or trailer, sign, wall, dock or athletic court." Id. § 8. "We use familiar rules of construction in interpreting zoning ordinances. We first construe words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance." In re Stowe Club Highlands, 164 Vt. 272, 279-80, 668 A.2d 1271, 1276-77 (1995) (citing In re Vt. Nat'l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991)). The plain meaning of the definition excludes parking from its scope.

¶ 10. The dissent argues that the environmental court was required to accept the zoning administrator's testimony, which it asserts is contrary to the court's conclusion. We agree that the interpretation of the bylaws by the zoning board and the zoning staff "can be determinative in a close case." In re Maple Tree Place, 156 Vt. 494, 500, 594 A.2d 404, 407 (1991). The weight to be accorded such testimony depends on the explanation of a "reason or rationale for its decision" and a demonstration that the interpretation has been consistent. In re Chatelain, 164 Vt. 597, 598, 664 A.2d 269, 270 (1995) (mem.). The zoning administrator's testimony on this point was conclusory,³ and there was no explanation of the zoning board's rationale. Further, there is no indication that this interpretation has been consistently applied by the board. The plain meaning of the bylaw's language is contrary to the administrator's interpretation. Under these circumstances, the court acted within its discretion in not following the interpretation of the zoning administrator.

¶ 11. We recognize that the bylaw could be broader and it could allow for grandfathering of noncompliant parking in the face of new requirements. See 24 V.S.A. § 4408(a)(2) (defining noncomplying structure as "a structure or part thereof not in conformance with the zoning regulations covering ... off-street parking or loading requirements"). The statutory definition allows a municipality to include off-street parking within the structure for grandfathering purposes even though the parking is not itself a structure. See id. § 4303(27) (defining "structure"). The bylaw, however, failed to capture this aspect of the statutory definition. The state statute is an authorization that does not "command any particular action." In re Stowe Club Highlands, 164 Vt. at 278, 668 A.2d at 1276. Thus, the definition in the bylaw controls. Id. at 278, 668 A.2d at 1277. The trial court determined that parking was not part of the structure, unlike minimum lot or setback requirements. We must uphold its construction of the bylaw unless it is "clearly erroneous, arbitrary or capricious." In re Casella Waste Mgmt., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60. Here, the court's construction is entirely reasonable, indeed unavoidable, given the limits of the definition.

¶ 12. Even if the court was incorrect and the parking could properly be considered as part of the noncomplying structure, the proposal still does not meet the requirements set out in the bylaws. Under § 6.5, noncomplying structures may be enlarged but only in a "manner which does not increase the degree of noncompliance." Previously, the rear of the building was used for parking only by the owners, resulting in a small number of vehicles that entered the...