McLaughry v. Town of Norwich, 95-80

• Decision Date: 15 July 1981
• Docket Number: No. 95-80,95-80
• Parties: Robert D. McLAUGHRY v. TOWN OF NORWICH and Norwich Zoning Board of Adjustment.
• Court: Vermont Supreme Court

Page 319

433 A.2d 319

140 Vt. 49

Robert D. McLAUGHRY v. TOWN OF NORWICH and Norwich Zoning Board of Adjustment.

No. 95-80.

Supreme Court of Vermont.

July 15, 1981.

Laurence F. Gardner, Hanover, N. H., for plaintiff.

Michael F. Hanley of Black & Plante, Inc., White River Junction, for defendants.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ. BARNEY, Chief Justice.

In July, 1977, the plaintiff purchased a piece of property in Norwich, planning to convert a barn in the middle of the lot into a commercial office building. Before purchasing the property, the plaintiff was told by the zoning administrator that the property was located entirely within the business district, apparently by reference to one or two sketch maps attached to the town's zoning bylaw. After purchasing the property, the plaintiff learned that the boundary between the Business District A and the Village Residential District split the lot and divided the barn in half. The zoning administrator denied the plaintiff a permit for converting the barn into a commercial property.

The plaintiff appealed to the Zoning Board of Adjustment claiming that the property was located solely within the business district. In the alternative he sought a variance. The Board found that the barn was in both districts, and also denied the variance.

The plaintiff then took his case to superior court under 24 V.S.A. § 4471, again contending that his property was all in the business district. He also contended that if his property and barn were in fact split between two districts, it amounted to an arbitrary and capricious use of zoning authority. He waived his right to appeal the denial of the variance.

The trial court found that the town adopted its zoning bylaw in 1970, and amended it in October, 1975. The zoning districts are established in § 4 of the amended bylaw, which attempts to incorporate by reference the districts of the Norwich Fire District bylaw as they existed on November 1, 1970. Section 4 also states that the districts are designated on a map which is part of the bylaw, and has been filed in the land records of the town, and that an official copy of the map is kept at the planning commission office. At trial, counsel for both parties represented that they could not find a copy of the map at the town clerk's office. The trial court found that one was available at the planning commission office, however. The parties never produced that map at trial, nor did they produce a copy. Instead, the plaintiff referred to a small sketch map attached to the back of the bylaw. The plaintiff claimed at trial, and still does that that sketch map is a copy of the official map. The trial court found that it was not and concluded that the zoning districts were as they were described in the old Norwich Fire District bylaw.

The court found further that the plaintiff's property is located in two districts and concluded that the bylaw was not arbitrary and capricious, even through it split the plaintiff's barn and property between two districts.

The first issue the plaintiff raises on appeal is that the property is located solely within the business district. In making his claim, the plaintiff first contends that the bylaw may not incorporate by reference the provisions of the Norwich Fire District bylaw. Determination of this issue is necessary to decide where the business district is located.

The Norwich bylaw provides:

Section 4 Zoning Districts

As designated on a map which is a part of this ordinance and has been filed in the Land Records of the Town of Norwich. An official copy may be seen at the Planning Commission Office in Tracy Hall.

....

4.2. Districts within the boundaries of the Norwich Fire District:

(1) Village Residential District

(2) Business District A. See Map

(3) Business and Industrial District B. See Map.

The perimeters of these Districts shall be as under the Norwich Fire District as it existed on November 1, 1970.

The plaintiff argues that the location of Business District A can be established only by referring to the zoning bylaw and zoning map. Two sketch maps are attached to the back of the bylaw. He claims that one of the maps, entitled "Norwich Vermont (Center of Village)," constitutes the "map" mentioned in the bylaw.

Plaintiff argues that reference to provisions outside of the bylaw would not provide the detail and clarity required by the enabling statute. He derives the requirement for detail from 24 V.S.A. § 4405(a), which allows a town to designate the town's plan map as the zoning map "except in such cases where such districts are not deemed by the planning commission to be described in sufficient accuracy or detail by the plan map." Apparently, the plaintiff is arguing that incorporating by reference the provisions of the Norwich Fire District Zoning bylaw does not provide sufficient accuracy or detail to describe the zoning districts.

Other courts have held that towns may incorporate bylaws by reference. See 5 E. McQuillin, Municipal Corporations § 16.12 (3d ed. 1969). Only if the incorporated bylaw is not on record, or was invalid at the time of the incorporation, should the incorporation by reference be held invalid. See id.

There is no statutory prohibition of incorporation by reference in Vermont. Neither 24 V.S.A. § 4401, which authorizes the adoption of bylaws, nor 24 V.S.A. § 4403, which relates to the preparation of bylaws and speaks of filing "a copy of the proposed by-law, amendment or repeal for public review" with the town clerk, prohibits such incorporation. Nor do the statutes require all of the provisions of the bylaw to be contained within the four corners of the document, although that would be the better practice.

In Auditorium, Inc. v. Board of Adjustment, 47 Del. 373, 91 A.2d 528 (1952), cited by the plaintiff, the Delaware Supreme Court stated that, "The boundaries (of zoning districts) must be definitely established by the ordinance itself." Id. at 382, 91 A.2d at 533. The court in that case was objecting to a procedure whereby the zoning administrator determined the boundaries. He did so because the zoning map did not sufficiently delineate the zoning districts. The case does not prohibit, however, a new zoning bylaw from incorporating the provisions of a previous zoning ordinance, with its specific description of the district boundary lines. Its holding does not apply to the case at bar.

Similarly, plaintiff's citation of Slattery v. Township of Caldwell, 83 N.J.Super. 317, 199 A.2d 670 (Super.Ct.App.Div.1964) is unfounded. In that case, a New Jersey superior court invalidated a bylaw which adopted "Proposed Federal Highway I-80" as a boundary of one district. The road had not been built, plans had not been made final and no map of the road was attached to the ordinance. The court said the boundary was too indefinite. Here, also, there is no application to this case, because we have a definite description of the district boundary.

In the case at bar the trial court found that:

5. The 1975 revision to the Zoning By-Law did not make any change in the then existing zoning districts within the town.

6. The 1970 Zoning By-Law followed the perimeter of Business District A as established for the Norwich Fire District in 1955. The Norwich Fire District Zoning By-Law was filed with...