In re Tyler Self–storage Unit Permits (angela Arkway

• Decision Date: 23 June 2011
• Docket Number: No. 10–307.,10–307.
• Citation: 27 A.3d 1071,2011 VT 66
• Parties: In re TYLER SELF–STORAGE UNIT PERMITS (Angela Arkway, et al., Appellants).
• Court: Vermont Supreme Court

27 A.3d 1071

2011 VT 66

In re TYLER SELF–STORAGE UNIT PERMITS (Angela Arkway, et al., Appellants).

No. 10–307.

Supreme Court of Vermont.

June 23, 2011.

Robert E. Woolmington of Witten, Woolmington & Campbell, P.C., Manchester Center, for Appellants.David R. Cooper of Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, for Appellee.Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and CRAWFORD, Supr. J., Specially Assigned.BURGESS, J.

¶ 1. A group of neighbors in the Town of Dorset appeal from a Superior Court, Environmental Division (Environmental Court) decision granting Bradford Tyler's application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District. Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district. We reverse.

¶ 2. Applicant Tyler owns and resides on a 5.6–acre property located in the Village Commercial District (VC District) of the Town of Dorset. He filed for a zoning permit to construct a self-storage facility on his property. The proposed facility consists of three one-story buildings, each twenty feet wide and one hundred feet long and containing twenty-four individual storage bays for a total of seventy-two bays. Applicant intends to rent the bays to customers who, according to the application, “would place and store belongings in them.”

¶ 3. The town planning commission issued written approval of applicant's site development plan. Following this, the town zoning administrator issued a zoning permit. Interested neighbors appealed to the Dorset Zoning Board of Adjustment, contending that applicant's proposed self-storage facility is not a “retail sales/rentals” use, as required by the town's zoning bylaws for development in the VC District. See Town of Dorset Zoning Bylaw [hereinafter Bylaws] § 6.3.4(b)(3) (2005). By a vote of four to three, with two members of the nine-member Board not voting, the Board determined that applicant's proposed facility was not permitted in the VC District.

¶ 4. Neighbors, in response to applicant questioning the validity of a decision rendered by less than a majority of the Board, appealed to the Environmental Court. They asserted that, regardless of the majority vote issue, the earlier approval by the zoning administrator was erroneous and should be voided. Applicant cross-appealed, arguing that the Board's denial was invalid and that the proposed facility was a permitted use in the VC District. The parties filed cross-motions for summary judgment on the question of whether a storage facility was permitted. The Environmental Court granted applicant's motion and denied neighbors', holding that the proposed use was permissible as a “retail rental.”

¶ 5. Neighbors appeal now to this Court, contending that the Environmental Court erred: (1) by ignoring a straightforward reading of the Bylaws and substituting its own construction of “retail rental” to expand the scope of permitted uses in the VC District in a manner inconsistent with the zone's stated purposes; and (2) in finding that applicant's proposed facility would provide “retail rentals” serving individual uses when applicant's affidavit indicated that most customers interested in renting space were not individuals, but businesses planning to store equipment and excess inventory. Applicant disagrees with both contentions and also argues that the Bylaws should be interpreted in his favor because they are internally inconsistent and the ordinance's reliance on “any readily available dictionary” to define words not specifically defined in the Bylaws renders them standardless and unconstitutionally vague. We hold that the plain language of the Bylaws precludes applicant's self-storage facility.

¶ 6. The Environmental Court construed the “retail sales/rental” language to mean “ ‘retail sales or retail rentals' in the VC District,” and defined “retail rental” as “a commercial establishment” that “involve[s] small-quantity rentals directly with a consumer, as opposed to wholesale rentals.” “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 Pierce Subdiv. Application, 2008 VT 100, ¶ 8, 184 Vt. 365, 965 A.2d 468 (quotation omitted). When interpreting the language of a zoning ordinance, we are “bound by the plain meaning of the words ... unless the express language leads to an irrational result.” Id.

¶ 7. Dorset's Zoning Bylaws permit “retail sales/rentals” in the VC District, subject to site plan approval and several restrictions:

Retail sales/rentals. All sales, storage and display of merchandise shall occur within an enclosed structure, except for temporary display of merchandise outdoors, on-site during the operating hours of the business or from 8:00 a.m. to 6:00 p.m., whichever is later, provided that all such merchandise is stored in a building or screened storage area at the close of business each day. Agricultural products are exempted from the outdoor storage restrictions. No sale of automotive or diesel fuel is permitted.

Bylaws § 6.3.4(b)(3).

¶ 8. The Environmental Court initially construed the phrase “retail sales/rentals” to mean “retail sales or retail rentals.” This was reasonable. The virgule (“/”) is used “to separate alternatives,” American Heritage Dictionary of the English Language 1922 (4th ed.2006), and is reasonably understood to be disjunctive, another expression of the word “or.” Danco, Inc. v. Commerce Bank/Shore, N.A., 290 N.J.Super. 211, 675 A.2d 663, 666 (1996). The canon of statutory construction of ejusdem generis dictates that, when words “bearing a specific description are followed by words of more general import, the sense of the adjective first used is applied to the words that follow.” Kalakowski v. John A. Russell Corp., 137 Vt. 219, 224, 401 A.2d 906, 909 (1979). “Retail,” a specific description, is followed by “sales” and “rentals,” words of more general import. Thus, the court appropriately concluded that the phrase “retail sales/rentals” translates to “retail sales or retail rentals.” Cf. id. at 223–24, 401 A.2d at 909 (applying “retail” in phrase “retail store, stand, sales and sales rooms” to each term following “retail”).

¶ 9. The court next examined how the Bylaws' definition of “retail” informs the term “retail rentals.” The term “retail” is defined in the ordinance to mean “a shop or store for the sale of goods, commodities, products or services directly to the consumer, as opposed to wholesale.” Bylaws app. A at 7. The court noted that to define retail rentals in terms of sales results in internal inconsistency within the Bylaws because sales and rentals are distinctly separate concepts. To resolve this conflict, the court first focused on the distinction between retail sales to individual customers and wholesale sales to business or industrial customers. The Bylaws note this distinction, a fact the court interpreted as indicative of the drafters' intent to define “retail rentals” as involving “small-quantity rentals directly with a consumer, as opposed to wholesale rentals.” The court then fleshed out its construction of “retail rentals” based on the inclusion of “shop or store” in the ordinance's definition of “retail,” choosing a broad dictionary definition for the terms: “any commercial or industrial establishment.” Using this definition, the court concluded that so long as a facility is a “commercial establishment” and rents to individuals, rather than to industrial customers or on a wholesale basis, the facility is permissible in the VC District.

¶ 10. There are several problems with this construction of “retail rentals.” The court placed too much emphasis on the distinction between retail and wholesale and ignored the ordinance's language defining “retail” establishments as shops or stores providing goods and services. Specifically, the court failed to attend to the most ordinary contexts of “shop” and “store,” instead choosing a much broader definition that can encompass virtually all businesses regardless of dimension or purpose. “Shop” has several definitions, the first and most common being a “small retail store or a specialty department in a large store.” American Heritage Dictionary, supra, at 1609; see also Webster's New International Dictionary 2319 (2d ed.1961) (defining “shop” as “[a]n artisan's place of manufacture and sale .... In the United States shop means esp. a place of manufacture or repair ....”). Applicant's facility clearly does not fit this description; it is neither small in scale nor a specialty department within a larger store. “Store” likewise has several definitions, but primarily refers to a “place where merchandise is offered for sale; a shop.” American Heritage Dictionary, supra, at 1708; see also Webster's New International Dictionary 2486 (defining “store” as “[a]ny place where goods are kept for sale, whether by wholesale or retail; a shop.”). The centrality of merchandising to this definition combined with the analogy to a shop suggests that applicant's proposed facility, which would offer neither goods nor services for sale or rent, is no more a “store” than it is a “shop.”

¶ 11. The court's definition also fails to take into account the subsections surrounding the ordinance's “retail sales/rentals” provision. The Bylaws list numerous other permitted uses within the VC District, including “personal service establishments” and “contractors.” Bylaws § 6.3.4(b)5, 9. The examples of “personal service establishments” listed in the Bylaws, such as “barber shops, hairdressers [and] shoe repair” provide an illustration of the difference between applicant's facility and the approved uses for the VC District. Id. § 6.3.4(b)5. Not only do these businesses all appear to involve foot-traffic between the street...