Kostenblatt, In re

• Decision Date: 28 January 1994
• Docket Number: No. 93-121,93-121
• Citation: 161 Vt. 292,640 A.2d 39
• Parties: In re Alfred KOSTENBLATT.
• Court: Vermont Supreme Court

Page 39

640 A.2d 39

161 Vt. 292

In re Alfred KOSTENBLATT.

No. 93-121.

Supreme Court of Vermont.

Jan. 28, 1994.

David Putter, Saxer, Anderson, Wolinsky and Sunshine, Montpelier, for appellant Dojka.

Donald and Bridget Pierce, pro se, appellants.

Alfred and M. Elaine Kostenblatt, pro se, appellants.

Robert E. Woolmington, Witten, Saltonstall & Woolmington, P.C., Bennington, for appellee Tschorn.

W. Michael Nawrath, Whalen and Nawrath, Manchester Center, for appellee Town of Arlington.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

This is an appeal of an order of the Bennington Superior Court granting summary judgment to appellee, Reginald Tschorn (landowner), in his appeal of a decision of the Town of Arlington Zoning Board of Adjustment (ZBA) to cite him for violation of a zoning permit. The appellants are adjoining landowners (neighbors) and the Town of Arlington, ¹ who claim that landowner violated certain express and implied conditions of his conditional use permit in operating a shooting facility. We agree with appellants in part and therefore reverse in part, and affirm the remainder of the trial court's decision.

Landowner's parcel is located in the Murray Hollow section of the Town of Arlington, which was designated, for zoning purposes, as part of Arlington's Forest and Recreation District. Within this district, agriculture, forestry and certain private uses are allowed as of right, while all commercial uses with the exception of commercial forestry are prohibited. Recreational uses are allowed only as a conditional use.

In March 1990, landowner submitted a conditional use permit application pursuant to § 6.5.3 of the Arlington Land Use (Zoning) Bylaws. This section designates as a conditional use: "Recreation areas operated by a government unit or a non-profit organization, including hiking trails, bridle paths, and overnight shelters." ² Pursuant to § 7.1 of the bylaws, the ZBA may approve a conditional use after public hearing if a majority of the ZBA finds the proposed use meets local ordinances, regulations and bylaws, and conforms with the following standards:

1. That it will not emit undue noise, odor, smoke, dust, or in other ways annoy nearby residents or be detrimental to the value of neighboring property.

2. That it will not create dangerous traffic conditions or unduly increase vehicular traffic in the neighborhood.

3. That it is in architectural harmony with neighboring structures.

4. That it is appropriately located with respect to water supply, fire protection, waste disposal and similar facilities, and that such facilities and installations comply with State regulations with respect to the individual building or use.

This appeal centers on the first two conditions, and more particularly, on representations landowner made in addressing these conditions during a public hearing held by the ZBA in May 1990.

At this hearing, landowner discussed his intentions for his Murray Hollow property, and addressed each of the above conditional use standards. He represented that his planned use for the property encompassed a barn for raising pheasants, a separate eight-stall barn for the boarding and possible treatment of horses, and "a hunting and fishing educational facility," which would include a sporting clays field and a pistol and rifle range. He testified that he was a state-certified instructor in hunter firearms safety, and indicated that he was "interested in ... having a [shooting] facility available where I could take father, mother, son and daughter--family groups-- ... and continue that educational [shooting] process."

Addressing the first conditional use standard, landowner testified that he expected to conduct weekly educational programs running three days per week and involving five shooters per program. Initially, landowner estimated that daily shooting would involve a total of "about 125 shots in a period of a couple of hours," but amended that to "125 rounds" (625 shots) per day over a period of approximately two hours. Addressing the second conditional use standard, he commented that "the maximum carrying capacity of a skeet range or trap ranges are five people.... If every member of the family drove a car, I could have a total of five cars as far as parking is concerned." He noted that this level of traffic would match the current level of activity on the road during most weekends, and represent far less traffic activity than the estimated thirty to forty vehicles that travelled the road during deer hunting season.

Following discussion, the ZBA approved landowner's conditional use permit. Although numerous concerns with the facility's operation were discussed, the permit was granted subject to only two conditions written on the face of the permit: (1) that the shooting range operate only from May through October, and (2) that it not operate on Sundays. The permit does not specifically require that the proposed activities be conducted on a nonprofit basis.

Pursuant to § 7.1 of the bylaw, landowner was also required to submit a site plan that showed exactly how the land would be developed and used. Landowner submitted such a site plan and it was approved.

Four months later, in September 1990, landowner filed a new application for a conditional use permit to extend his hours of operation. The application stated that the use of the property was "commercial." After an October public hearing, the ZBA granted landowner's permit, subject to the following: "Conditions revised from original permit to extend shooting to include Sundays and to allow the facility to operate from April through December except during deer hunting season."

In March 1991, landowner entered into a five-year lease with Orvis Services, a for-profit corporation, effective April 1, 1991. Under the terms of this agreement, he leased the sporting clay-shooting facility to Orvis, and assigned his rights under the conditional use permit to Orvis. Orvis constructed the site improvements to create the facility and operated it from 9:00 a.m. to 5:00 p.m. Fridays and Saturdays and 10:00 a.m. to 5:00 p.m. on Sundays with no daily limit on the number of shooters. The orientation of the facility, as constructed by Orvis, differs from that on the approved site plan.

In June 1991, some of the neighbors formally complained to the Arlington land use administrator following a Memorial Day weekend during which, as they alleged, shotgun pellets fell upon them while they walked along Buck Hill Road, which runs between their property and that of landowner. Neighbors claimed that landowner was exceeding the terms of his conditional use permit by operating a commercial shooting range, creating danger to abutting property owners, and creating an extremely high noise level. Following review, the land use administrator refused to issue a notice of violation, and neighbors appealed to the ZBA.

Following two hearings and a site visit, the ZBA issued a decision on August 7, concluding that although landowner possessed a valid conditional use permit, the permit terms had "been exceeded by the for-profit operation, the number of shots fired per day, ³ the number of cars, the hours and types of operation, and the changes to the approved site plan." The Board ordered landowner, as well as Orvis Services, to cease and desist from operating the sporting clays range as it was constructed, stating that the range could be operated only in accordance with landowner's representations to the Board during the May 16, 1990 public hearing, that is, by a not-for-profit organization, as an educational supplement to the Vermont Hunter Safety Course, catering to families and parties of five or less on a weekly basis, and limited to 125 shots fired per day. ⁴

In September 1991, landowner appealed the ZBA decision to the Bennington Superior Court, arguing that the ZBA was attempting to enforce unwritten conditions. In two summary judgment decisions, the court agreed with landowner, holding that in the absence of explicit conditions, the ZBA could enforce neither landowner's representations on the nature and intensity of shooting activities nor the bylaw requirement of operation by a "non-profit organization." ⁵ The Town subsequently moved to amend the judgment, reiterating that the facility was constructed in violation of the site plan and raising a new argument that landowner's operation without an Act 250 permit violated the Arlington bylaw. The motion was denied without opinion, and this appeal followed.

Neighbors and the Town make four arguments on appeal: (1) landowner's representations at the ZBA hearings about the operation of the facilities were binding on him; (2) the requirement of the bylaw that operation be by a nonprofit organization is binding upon landowner; (3) landowner's violation of the site plan supported the ZBA's enforcement action; and (4) operation of the facility without an Act 250 permit was a violation of the Arlington bylaw. We take these claims in order.

We begin with appellants' argument that the landowner was in violation of his conditional use permit because actual use of the shooting facility exceeded the use represented at the May 1990 ZBA hearing. They argue that landowner is bound by the representations as permit conditions. It is undisputed, however, that the only conditions explicitly imposed on landowner's original and amended conditional use permits concern the days and months of operation, and he is operating within these conditions. No conditions concerning number of shots to be fired per day, number of shooters, or number of cars allowed to enter the property were ever explicitly imposed in the permits.

In a case similar to this one, this Court quite clearly held: "Conditions imposed by a zoning board must be expressed with sufficient clarity to give notice of the limitations on the use of the land, and cannot incorporate by reference statements made...