Smith v. Town of St. Johnsbury

• Decision Date: 02 September 1988
• Docket Number: No. 87-010,87-010
• Citation: 554 A.2d 233,150 Vt. 351
• Parties: H. Gordon SMITH et al. v. TOWN OF ST. JOHNSBURY and George Pratt d/b/a Northern Petroleum Co.
• Court: Vermont Supreme Court

Page 233

554 A.2d 233

150 Vt. 351

H. Gordon SMITH et al. v. TOWN OF ST. JOHNSBURY and George Pratt d/b/a Northern Petroleum Co.

No. 87-010.

Supreme Court of Vermont.

Sept. 2, 1988.

James C. Gallagher of Downs Rachlin & Martin, and Primmer & Piper, St. Johnsbury, for plaintiffs-appellants.

Swainbank, Morrissette, Neylon & Hickey, St. Johnsbury, for defendant-appellee.

Before ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

On March 4, 1986, the voters of the Town of St. Johnsbury voted to change the zoning of 10.17 acres of land owned by defendant Northern Petroleum Company (Northern) at the intersection of Route 2 and Western Avenue from Rural Land--1 to Highway-Commercial. Plaintiffs, who are adjoining landowners, brought this action first to prevent the vote and then, after the vote, to invalidate the zoning change. The case was submitted to the superior court on an agreed statement of facts. The court dismissed the complaint and plaintiffs appeal to this Court. We affirm the dismissal of the case.

In 1985, the Town of St. Johnsbury adopted a town plan which called for commercial development of lands lying near interstate highway interchange areas. Defendant Northern then made application to change the zoning applicable to the 10.17 acre lot it owned near an interstate highway interchange. The zoning of the land contiguous to the lot is either residential or Rural Land--1.

The town planning commission, after hearing, recommended to the town selectmen that the zoning of defendant's land be changed as requested. The applicable statute provides that an amendment to a zoning ordinance of an "urban municipality" can be adopted only by a two-thirds vote of the town legislative body if a written protest is filed by: "[t]he owners of forty percent of the lots or area located outside the proposed amendment but within two hundred feet from the outer limits of lots included in the proposed amendment." 24 V.S.A. § 4404(d)(3). The plaintiffs own 80% of the lots that are within 200 feet of defendant's lot. They filed a written protest. It is undisputed that St. Johnsbury is an "urban municipality" as defined in 24 V.S.A. § 4303(12) (includes, in most cases, towns of a population of 2500 persons or greater). Thus, the amendment required a two-thirds vote of the selectmen.

The town selectmen voted unanimously to reject the zoning change proposed by defendant. Defendant then circulated a petition to put the proposed zone change to a town vote and obtained signatures from in excess of five percent of the voters of the town. Relying on 24 V.S.A. § 4404(f), the selectmen voted four to one to submit the question to the voters of the town. At that point, plaintiffs brought an action seeking to enjoin the vote. An injunction was denied by the trial court and the vote went forward. The voters voted in favor of the zoning change on a vote of 939 yes and 626 no.

The town, based on the advice of its lawyers, recognized the vote as effective to change the zoning as requested. Defendant then submitted a site plan application to erect a commercial building on the property, and the plaintiffs amended their complaint to seek a declaratory judgment that the zoning change was invalid.

Both in the trial court and on appeal, plaintiffs have relied on a number of theories in support of their position that the vote did not change the zoning or that the amendment is invalid. Their theories are as follows:

1. The statute does not permit town voters to overturn a decision of the selectmen denying a zone change.

2. If allowed by statute, the vote is unconstitutional because it allows an act taken by a super-majority of the selectmen to be overturned by a majority of the voters in an urban municipality but requires a super-majority in a rural municipality.

3. The purported amendment is invalid because it is inconsistent with the town plan.

4. The purported amendment amounts to illegal spot zoning.

We take these claims in the order presented.

An examination of the first claim requires us to set out the statutes in greater detail. Adoption of a zoning ordinance--known in the statutes as a bylaw, see 24 V.S.A. § 4303(13)--or an amendment to an ordinance begins in the planning commission of a town. 24 V.S.A. § 4403. Normally, the planning commission holds a hearing on the proposal and submits it to the legislative body of the municipality in the original or revised form together with a written report on the proposal. 24 V.S.A. § 4403(f). However, if requested by the legislative body or if the proposal is supported by a petition signed by five percent or more of the voters of the municipality, the planning commission must submit a proposed amendment, making changes only to correct technical deficiencies, to the legislative body. Id. Once a legislative body receives a proposed ordinance or amendment, it must hold a public hearing on the proposal and a subsequent public hearing if it decides to make a substantial change in the proposal. 24 V.S.A. § 4404(a), (b).

At this point, the procedure depends on whether the municipality is a "rural town" or an "urban municipality." In a rural town, the ordinance or amendment must be "adopted or rejected by the vote of that town" or it can be adopted by the legislative body of the town, if the voters have voted to allow this procedure. 24 V.S.A. § 4404(d). Note, if the latter method is used, the voters can rescind the action of the legislative body. See 24 V.S.A. § 1973.

In an urban municipality, as is present in this case, the ordinance or amendment is normally "adopted by a majority of the members of its legislative body." 24 V.S.A. § 4404(c). However, the normal procedure is superseded by the extraordinary majority requirement--"two-thirds vote of all members of its legislative body"--when the requisite number of surrounding landowners file a protest. 24 V.S.A. § 4404(e). This leads us to the popular vote procedure to overrule the vote of the legislative body. It provides:

(f) Popular vote in urban municipalities. Notwithstanding subsection (c), in an urban municipality a vote on a bylaw or amendment shall not take effect if five percent of the voters of the municipality petition for a meeting of the municipality to consider the bylaw or amendment, and the petition is filed within twenty days of the vote. In that case a meeting of the municipality shall be duly warned for the purpose of acting upon the bylaw or amendment by Australian ballot.

There is one other relevant provision, effective in either rural towns or urban municipalities. It provides that if a proposal is submitted to the legislative body "under subsections (c) or (d)" and is not acted upon during the year after the date of the final hearing before the planning commission, the proposal is considered to be disapproved "unless 5 percent of the voters of the municipality petition for a meeting of the municipality to consider the bylaw or amendment." If such a petition is filed, the bylaw or amendment is put to a vote by the municipality. 24 V.S.A. § 4404(i).

In this case, the selectmen determined that the popular vote provision, subsection 4404(f), applied and put the amendment to a vote. Plaintiffs argue that the popular vote provision doesn't apply because: (1) by its terms, the vote procedure is an exception to subsection (c) and not subsection (e) which governed in this case because of the protest filed with the selectmen by the plaintiffs; (2) the procedure set out in subsection (e) which governed in this case because of the protest filed by plaintiffs is, by its terms, final; and (3) it does not apply where the selectmen vote down an amendment because there is no amendment to "take effect" as those words are used in subsection (f). The trial court rejected the first two arguments because it found that the statutory provisions best fit together if the popular vote provision applied whether or not approval by the selectmen required a super-majority or a majority. It rejected the third argument because the wording of subsection (f) says it is the "vote" of the selectmen, as opposed to the bylaw or amendment, that does not take effect pending the popular vote. It found that these words were equally applicable whether the "vote" was positive or negative. We agree with the reasoning of the trial court on these points.

We start with certain canons of statutory construction. Our main purpose must be to find the intent of the Legislature based on a review of the entirety of the statutory scheme. State v. Harty, 147 Vt. 400, 402, 518 A.2d 30, 31 (1986). Where the meaning of the words chosen is plain, we must give effect to the words chosen. Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986). In construing the statute, we must assume that the Legislature did not intend an unreasonable result. Id. at 50, 527 A.2d at 228.

There are actually two statutory construction issues here. The first is whether a bylaw amendment can ever be submitted to the voters after it is rejected by the selectmen. The second is whether a bylaw amendment that has been subjected to a super-majority vote of the selectmen may be submitted to the voters. On the first issue, we agree with the trial court that the better reading of the entire statutory scheme allows the town vote. Further, we think that a provision allowing an initiative or referendum by the voters of the municipality is entitled to a liberal construction in favor of allowing the vote where possible. See 5 E. McQuillin, Municipal Corporations § 16.51, at 186 (3d ed. 1981). Finally, there is no obvious reason why the Legislature would allow the citizens of a town to vote on a zoning change when the selectmen endorsed it but deny them the opportunity when the selectmen rejected the change. On this point, we emphasize that we are talking about circumstances where the interested parties have made a full record...