In re Pierce Subdivision Application

• Decision Date: 01 August 2008
• Docket Number: No. 07-121.,07-121.
• Parties: In re PIERCE SUBDIVISION APPLICATION (Robert Schumacher, Appellant).
• Court: Vermont Supreme Court

965 A.2d 468

2008 VT 100

In re PIERCE SUBDIVISION APPLICATION (Robert Schumacher, Appellant).

No. 07-121.

Supreme Court of Vermont.

August 1, 2008.

Christina A. Jensen of Lisman, Webster & Leckerling, P.C., Burlington, for Appellant.

David J. Shlansky of Shlansky & Co., LLP, Vergennes, for Appellee.

Present: REIBER, C.J., JOHNSON, SKOGLUND and BURGESS, JJ., and KUPERSMITH, D.J., Specially Assigned.

BURGESS, J.

¶ 1. Neighbor appeals the Environmental Court's approval of applicant's proposed Planned Residential Development (PRD) adjoining his property in Ferrisburgh, Vermont. Under the Ferrisburgh Zoning Bylaws, a qualified PRD that proposes cluster housing and preservation of open space may be authorized by the Planning Commission by waiver of the standard rules governing single-house lot development. On appeal, neighbor claims that the court erred by concluding that: (1) the proposed subdivision meets the definition of a PRD as specified in the bylaws; (2) the project satisfies the space and density limitations under the bylaws; (3) the bylaws supply adequate standards to guide the court's discretion; and (4) the project complies with the minimum-lot-size requirements of the bylaws. We affirm the project's approval.¹

¶ 2. Applicant proposed to subdivide a 113-acre portion of its property into a twenty-one lot PRD, with an additional lot reserved for common space. The bylaws define a PRD as "[a]n area of land to be developed as a single entity for a number of dwelling units, the plan for which does not conform to the zoning regulations." Zoning Bylaws for the Town of Ferrisburgh § 2.2 (as amended, March 6, 2001) [hereinafter Zoning Bylaws]. The sizes of the twenty-two lots range from under half an acre to 25.9 acres. These twenty-two lots are accessed by Pierce Woods Road, a twenty-foot-wide roadway within a sixty-foot-wide access easement.

¶ 3. Applicant's 113-acre parcel has varied terrain containing woods, wetlands, Lewis Creek, a stream, and steep slopes. The proposal creates a fifty-foot buffer along Lewis Creek and the stream. Applicant proposes to conserve seventy-six percent of the land in the PRD as open space through perpetual easements once the PRD is approved.

¶ 4. The parcel encompasses three different zoning districts: Rural Residential (RR-2), Rural Agricultural (RA-5), and Conservation (Con-25). Each district has a minimum lot size: RR-2 requires two acres, RA-5 five acres, and Con-25 twenty-five acres. Id. §§ 4.2(D), 4.2(C), 4.3(C). Because zoning regulations for these districts would effectively prevent applicant from clustering houses on the parcel, applicant requested six waivers of the district zoning regulations to reduce the required minimum lot size and acreage per dwelling, along with frontage, width, depth, and setback requirements.

¶ 5. The Planning Commission approved the proposed PRD. Neighbor appealed that decision to the Environmental Court, complaining, in pertinent part, that the development's compliance with the bylaw definition of PRD could not be determined from applicant's plans, that the Commission improperly included the untraveled portion of the right-of-way as part of the lands subject to subdivision for purposes of calculating allowable density, that the by-laws delegated standardless discretion to the Commission to grant waivers of the district zoning regulations, and that the PRD failed to meet minimum lot size requirements. The Environmental Court rejected neighbor's arguments, affirming the approval of the application. This appeal followed.

I.

¶ 6. Neighbor first contends that the court's conclusion that the project satisfies the definition of a PRD rests upon an erroneous interpretation of Bylaw § 2.2, and, consequently, that the court's decision lacks necessary findings. Section 2.2 defines PRD as an "allowed method of land development" wherein the number of dwelling units "shall not exceed the number which could be permitted if the land were subdivided into lots in conformance with the zoning regulations." Zoning Bylaws § 2.2 (emphasis added). To determine whether the proposed PRD was consistent with this definition, the court used a straightforward mathematical calculation—dividing total acreage of the parcel by minimum lot size as dictated by the three districts involved—to determine how many dwellings "could be permitted" under the bylaws.

¶ 7. Neighbor argues against this determination by simple long division, positing that slope, wetlands and stream characteristics of the parcel "potentially" limit the number of units available to a conforming subdivision, regardless of its aggregate acreage. Neighbor maintains that without a more detailed evaluation of the property vis-à-vis a conforming subdivision plan by which to determine the number of non-PRD units that could actually be built on the parcel, the court's conclusion of compliance with § 2.2 is unsupported by necessary findings. Neighbor characterized the § 2.2 definition as a "hurdle" arising at the outset of a PRD application, overcome only by the applicant engaging in a process before the Planning Commission to achieve approval for an identified number of units in a conventional subdivision plan.

¶ 8. We will uphold the Environmental Court's construction of a zoning ordinance "if it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary, or capricious." In re Bennington Sch., Inc., 2004 VT 6, ¶ 11, 176 Vt. 584, 845 A.2d 332 (mem.). Our interpretation is generally bound by the plain meaning of the words in the ordinance, In re Nott, 174 Vt. 552, 553, 811 A.2d 210, 211 (2002) (mem.), unless the express language leads to an irrational result. See State v. Forcier, 162 Vt. 71, 75, 643 A.2d 1200, 1202 (1994) (recognizing that given a statute's express terms, we "[n]onetheless ... avoid interpretations that would lead to an unjust, unreasonable and absurd consequence" (quotation omitted)).

¶ 9. Neighbor's construction of the bylaw is unreasonably burdensome and is not plainly mandated by the language. Since the density inquiry is triggered by an application for a PRD, rather than for a conforming development, the conforming subdivision contemplated by §§ 2.2 and 5.21(C)(2) can be only hypothetical. Nevertheless, neighbor reads both sections to require successive permit applications and proceedings, the first one for an imaginary development and the second one for the real proposal. If such a burden on the landowner was in place, we might question its reasonableness, Forcier, 162 Vt. at 75, 643 A.2d at 1202, but its drafters did not write the bylaw to require an applicant to obtain permission to build an unwanted subdivision in order to seek approval for a PRD. As § 2.2 does not plainly intend dual applications, it could, as the Environmental Court reasoned, require only an estimate of allowable density, rather than mandating full scale submission of an unwanted conventional subdivision plan for approval as a precondition to applying for the intended PRD development. That would be if the definition controlled the application at all.

¶ 10. It does not. Neighbor's reliance on § 2.2—a definitional section—to mandate nondiscretionary determination of allowed density is misplaced. While § 2.2 generally describes a PRD as an authorized unconventional development that may not exceed the number of units allowed to a conventional subdivision, the actual determination of allowed units is explicitly vested to the discretion of the Planning Commission under § 5.21(C)(2). Section 5.21(C) sets forth the "General Standards for Review" of PRD proposals, including the condition that before approving a PRD application, the Environmental Court, acting in the Planning Commission's stead, must find that:

The overall density of the project does not exceed the number of dwelling units which could be permitted, in the Planning Commission's judgment, if the land (excluding the area within the boundaries of any proposed road) were subdivided into lots in accordance with the district regulations and other relevant provisions of these bylaws.

Zoning Bylaws § 5.21(C)(2) (emphasis added). According to the plain language of the bylaw, § 2.2 summarizes what may qualify as a PRD, but § 5.21(C)(2) governs the actual determination of baseline density necessary for PRD approval.

¶ 11. Any hurdle to the applicant in this regard is specifically imposed by § 5.21(C)(2), and not by the § 2.2 definition. The density determination is left expressly a matter of "judgment," rather than a matter of such certainty as requiring the more exact finding following a fully documented hypothetical application like that envisioned by neighbor. The Environmental Court's finding as to the number of units allowed will not be disturbed "if it is rationally derived from a correct interpretation of the law and not clearly erroneous, arbitrary, or capricious." Bennington Sch., Inc., 2004 VT 6, ¶ 11, 176 Vt. 584, 845 A.2d 332.

¶ 12. We disagree with neighbor that the court's summary calculation is insufficient for either the § 2.2 definition or the § 5.21(C)(2) compliance determination. The bylaws require the court to consider the number of units which, in its judgment, could be permitted under the regulations. The court did so and explained its rationale based on the undisputed estimates by applicant's engineer of the acreage in each of the districts involved by the project, as offered to prove that the PRD proposed no more lots than could be achieved by a conventional subdivision conforming to all applicable district regulations. The evidence supported this rationale, and the court's conclusion cannot be overcome by neighbor's speculation that the wetlands, slopes and stream within the parcel could, without more, "potentially" limit the number of units or lots that could have been approved for a conventional subdivision.

¶ 13. The court's use of a summary calculation to determine the number of...