Route 4 Associates v. Town of Sherburne Planning Com'n

• Decision Date: 15 June 1990
• Docket Number: No. 89-188,89-188
• Citation: 578 A.2d 112,154 Vt. 461
• Parties: ROUTE 4 ASSOCIATES v. TOWN OF SHERBURNE PLANNING COMMISSION and Town of Sherburne.
• Court: Vermont Supreme Court

Page 112

578 A.2d 112

154 Vt. 461

ROUTE 4 ASSOCIATES v. TOWN OF SHERBURNE PLANNING COMMISSION and Town of Sherburne.

No. 89-188.

Supreme Court of Vermont.

June 15, 1990.

See publication Words and Phrases for other judicial constructions and definitions.

Donald R. Powers and Geoffrey Commons of Kelley, Meub, Powers & English, Ltd., Middlebury, for plaintiffs-appellants.

Liam L. Murphy and Deborah L. Markowitz of Langrock Sperry Parker & Wool, Burlington, for defendant-appellee.

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

GIBSON, Justice.

Petitioner Route 4 Associates appeals from a decision of the superior court denying an application for a planned unit development (PUD) in the Town of Sherburne. We affirm.

Petitioner seeks PUD approval for construction of a 100-unit hotel on property separated by a privately owned strip of land approximately 50 feet in width and 450 feet in length. The separated lots are 3.8 acres and 2.39 acres in size. The Town of Sherburne Planning Commission denied petitioner's application on the ground that neither parcel met the five-acre minimum-lot-size requirement set forth in the town's zoning ordinance. On appeal, the superior court conducted a de novo review and, with the consent of the parties, addressed the threshold question of whether petitioner's two lots are "contiguous" and, thus, one unit pursuant to the zoning regulations. The court found that the titleholder of the privately owned strip of land separating petitioner's property was neither a subscriber nor a party to the PUD application, and concluded that, since the two lots do not touch each other, the application does not meet the zoning ordinance's five-acre minimum-lot-size requirement. In its appeal to this Court, petitioner argues that (1) the word "contiguous" may be interpreted to include parcels not in actual physical contact, and (2) the town regulation stating that words undefined in the regulations shall be used as defined in a specified dictionary is an impermissible delegation of the town's authority.

We conclude that the trial court's decision was not clearly erroneous, arbitrary, or capricious. See In re McDonald's Corp., 151 Vt. 346, 348-49, 560 A.2d 362, 364 (1989). The Sherburne Zoning Regulations require a PUD to have a minimum lot area of five acres. § 240.6. "Lot area" is defined as the "[t]otal contiguous area within the property lines of a lot, calculated by horizontal projection, but excluding any part thereof lying within the boundaries of a public or non-public vehicular right-of-way, existing or proposed." Id. § 120.2. Although the regulations do not define "contiguous," "[w]ords not specifically defined [in the regulations] shall be used as defined in a Webster's New Collegiate Dictionary no more than 5 years old." Id. § 120.1. Webster's Ninth New Collegiate Dictionary, copyrighted in 1986, defines "contiguous" as follows:

1 : being in actual contact: touching along a boundary or at a point 2 : of angles: ADJACENT 3 : next or near in time or sequence 4 : COTERMINOUS

When construing the meaning of the word "contiguous" as applied to ownership of land, most courts, including this Court, have accorded the word its primary, ordinary meaning of touching. See, e.g., Bullis v. Town of Grand Isle, 151 Vt. 503, 504, 561 A.2d 1359, 1360 (1989) (construing tax assessment statute and recent opinion, Court held that "properties that do not share a common border are not contiguous"); Ehle v. Tenney Trading Co., 56 Ariz. 241, 245, 107 P.2d 210, 212 (1940) (construing homestead statute, court held that "contiguous" requires actual contact in accordance with common meaning of word); Seckman v. Georgia Power Co., 155 Ga.App. 204, 205, 270 S.E.2d 328, 329 (1980) (two tracts separated by private right of way used for electric transmission lines are not "contiguous" with respect to consequential damages of condemnation proceeding despite fact that owner of two tracts had easement across right of way); Hillman v. City of Pocatello, 74 Idaho 69, 71, 256 P.2d 1072, 1073 (1953) (under annexation statute, "contiguous" construed in primary and obvious sense of coterminous or abutting); In re Board of Directors of Hazelton School District, 105 Pa.Commw. 565, 568, 524 A.2d 1083, 1085 (1987) (statute mandating that regions of multicounty school district be composed of "contiguous" election districts prohibited any break in continuous physical territory, no matter how small); Bryant v. City of Charleston, 295 S.C. 408, 411, 368 S.E.2d 899, 901 (1988) ("contiguous" as used in annexation statute must be afforded its ordinary meaning of touching); Lien v. Northwestern Eng'g Co., 73 S.D. 84, 95, 39 N.W.2d 483, 489 (1949) (since "contiguous" in its primary sense means actual contact or touch, there was no fact question in this respect for jury).

There may be exceptions to this general rule. See, e.g., In re Estate of Thomas, 178 Neb. 578, 584, 134 N.W.2d 237, 241 (1965) (two tracts separated by public highway are "contiguous" pursuant to homestead statute where both tracts were used and operated as one farm); Town of Lyons v. City of Lake Geneva, 56 Wis.2d 331, 335, 202 N.W.2d 228, 231 (1972) (when gap of 23 feet is part of public road, parcel is close enough to city limits to be contiguous). In most cases, however,...