In re Miserocchi, 99-166.

• Decision Date: 28 January 2000
• Docket Number: No. 99-166.,99-166.
• Citation: 749 A.2d 607
• Parties: In re Appeal of Jeff and Ann MISEROCCHI.
• Court: Vermont Supreme Court

749 A.2d 607

In re Appeal of Jeff and Ann MISEROCCHI.

No. 99-166.

Supreme Court of Vermont.

January 28, 2000.

Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for Appellants.

John D. Hansen, Rutland, for Appellee.

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

SKOGLUND, J.

Applicants appeal from decisions of the environmental court that (1) denied on summary judgment their request for a variance, and (2) denied after trial approval for a change in use from agricultural to residential. We conclude that applicants do not need either change-of-use approval or a variance to change the use of their nonconforming structure from one permitted use to another permitted use. Thus, we reverse the decisions of the environmental court to the extent that it held otherwise.

The environmental court made the following findings. In 1988, applicants acquired an eighteen-acre parcel in the Town of Clarendon with a barn that was formerly used to store agricultural equipment. The parcel is in a residential district of the town, in which both agricultural uses and one-family dwellings are permitted uses. The barn is forty feet wide and one hundred feet long, with the longer dimension running along the road. The barn is set back ten-to-twenty feet from the edge of the pavement. The town zoning regulations require, in a residential district, a minimum forty-foot setback from the edge of the road. Thus, the barn is nonconforming with the setback requirement.

Applicants claimed that the 1988 zoning administrator told them that they did not need a permit to alter the interior of the building for a residence, but that exterior renovations would require a permit. Applicants installed a water supply and sewage disposal system and installed a mobile home at the back of and partially inside the barn. In 1995, a subsequent zoning administrator told them that the residential use was a violation of the zoning regulations, and appellants applied for change-of-use approval. The zoning board of adjustment addressed the request as if it were a request for conditional-use approval. As the environmental court recognized, there is no zoning regulation that requires conditional-use approval to allow a change in use from one permitted use to another permitted use in a noncomplying structure. Nonetheless, the zoning board of adjustment granted a conditional-use permit to allow applicants to renovate part of the barn to use as a dwelling, by adding not more than two bedrooms and a bathroom, provided they did not change the shape of the building. The zoning board of adjustment also limited the use of the barn as a dwelling to ten years. Applicants did not appeal.

Subsequently, in 1996, applicants applied for (1) a change-of-use permit to remove the ten-year limitation on their residential use of the structure, and (2) for a variance to add skylights to the front and an addition to the rear of the building. The zoning board of adjustment denied both the change-of-use permit and the variance. On appeal, the environmental court ruled on summary judgment that applicants did not meet the criteria for a variance, but also ruled that "[i]n general, no variance should be necessary for a residence or an addition or accessory structure beyond the 40-foot setback." Because the applicants had not provided the court with sufficient information as to the specific project proposed, the court ruled that the issue was not suitable for summary judgment. Following a trial on the request for a change-of-use permit, the court reiterated that applicants need no permit for any of their plans for residential use behind the forty-foot setback because this is a permitted use in the residential zone. Although recognizing that the zoning board of adjustment erred in considering the change-of-use request as a request for conditional-use approval, the court also applied the conditional-use factors in 24 V.S.A. § 4407(2). The court denied the application for permanent residential use of the part of the barn within the forty-foot setback because it would increase the intensity of the use of the noncomplying part of the structure. The court found that, under 24 V.S.A. § 4407(2)(D) (adverse effect on bylaws), increased use would adversely affect § 280 (nonconforming uses) and § 430 (requiring the forty-foot setback) of the Clarendon zoning regulations. Applicants appeal.

We will uphold the environmental court's construction of a zoning regulation unless the construction is clearly erroneous, arbitrary or capricious. See In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909 (1998). Here, we conclude that the court's construction is clearly erroneous. To begin with, the court erred by considering the factors in 24 V.S.A. § 4407(2) in deciding whether to grant change-of-use approval. Section 4407(2) pertains to permitting for conditional uses. This section is not applicable because applicants want to use the barn as a residence. Residential use — one-family dwelling — is a permitted use in the residential district, not a conditional use. See Town of Clarendon Zoning Regulations § 430. Thus, applicants do not need a conditional-use permit to use the barn as a residence.

This case therefore involves a non-conforming use, rather than a conditional use. Nonconforming uses are governed by 24 V.S.A. § 4408. Section 4408(a)(1) defines a "nonconforming use" as "a use of land or a structure [that] does not comply with all zoning regulations" but that was in compliance prior to enactment of the regulations. (Emphasis added.) Section 4408(a)(2) defines a "noncomplying structure" to be a structure or part thereof that does not comply with the zoning regulations but was in compliance before the enactment of the regulations. Therefore, the barn in this case is a noncomplying structure because the structure is in the setback area. It is also a nonconforming use, however, because the structure does not comply with all zoning regulations, specifically the setback requirements. Indeed, all noncomplying structures will also be nonconforming uses under the statute. See In re Stowe Club Highlands, 164 Vt. 272, 279 n. 5, 668 A.2d 1271, 1276 n. 5 (1995); see also In re Letourneau, 168 Vt. 539, 546, 726 A.2d 31, 37 (1998) (§ 4408(a)(1) defines noncomplying structure as nonconforming use).

Section 4408(b) authorizes municipalities to "regulate and prohibit expansion and undue perpetuation of nonconforming uses," which includes noncomplying structures. It specifies four actions that the municipalities may control: (1) changes of nonconforming uses to other nonconforming uses, (2) extension or enlargement of nonconforming uses, (3) resumption of nonconforming uses after abandonment or discontinuance, and (4) movement or enlargement of a structure containing a nonconforming use. The statute authorizes municipalities to regulate these changes in nonconforming uses but does not command any particular action. See Stowe Club Highlands, 164 Vt. at 278, 668 A.2d at 1276. Thus, we turn to the municipal zoning regulation to determine how the municipality regulates nonconforming uses. See id.

Section 4408 is implemented by Town of Clarendon Zoning Regulations § 280, which provides:

Any non-conforming use of structures or land except those specified below may be continued indefinitely, but:

1. Shall not be moved, enlarged, altered, extended, reconstructed or restored (except as provided below).

2. Shall not be changed to another non-conforming use without approval by the Board of Adjustment.

3. Shall not be re-established or restored without approval by the Board of Adjustment if such use has been discontinued for a period of six months, or has been changed to, or replaced by a conforming use.

Zoning regulations are construed under general rules of statutory construction. See Weeks, 167 Vt. at 554, 712 A.2d at 909. Thus, we are bound by the plain and ordinary meaning of the language, unless it is uncertain. See id. Because land use regulation is in derogation of the common law, any ambiguity is resolved in favor of the landowner. See id. at 555, 712 A.2d at 910.

The plain and ordinary meaning of § 280 allows any nonconforming use of structures or land to be continued indefinitely; however, the nonconforming use "[s]hall not be moved, enlarged, altered, extended, reconstructed or restored." Section 280 provides two exceptions to the general rule: (1) a nonconforming use may be changed to another nonconforming use with approval, and (2) a nonconforming use may be re-established or restored after discontinued with approval. Thus, to obtain approval for a change to a nonconforming use, a proposal must be covered by one of these exceptions. Neither exception in § 280 is applicable here because applicants do not seek to (1) change from one nonconforming use to another nonconforming use, or (2) restore a discontinued, nonconforming use. Because applicants' proposal does not fall within either exception, § 280 provides no procedure for applicants to obtain approval. Applicants' proposed change in use is either unregulated by § 280 or prohibited by § 280.

There are two problems with the framework of § 280. First, § 280 fails to provide any criteria for the two exceptions under which the board of adjustment may evaluate whether to approve a change in nonconforming use. Absent any criteria or guidelines, "the applicant for a permit is left uncertain as to what factors are to be considered." Town of Westford v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973). Moreover, a decision arrived at without reference to any standards or principles is arbitrary and capricious, see id.; such ad hoc decision-making denies the applicant due process of law. See Lewandoski v. Vermont State Colleges, 142 Vt. 446, 453-54, 457 A.2d 1384, 1388 (1983) (United States Supreme Court defines arbitrary decision as one reached without consideration or reference to principles); State v. Buelow, 155 Vt. 537, 547, 587...