Thompson v. Smith

• Decision Date: 07 February 1957
• Docket Number: No. 311,311
• Citation: 119 Vt. 488,129 A.2d 638
• Court: Vermont Supreme Court
• Parties: Raymond G. THOMPSON, Ruth I. Thompson, v. Lionel H. SMITH, Evelyn L. Smith.

Page 638

129 A.2d 638

119 Vt. 488

Raymond G. THOMPSON, Ruth I. Thompson, v. Lionel H. SMITH, Evelyn L. Smith.

No. 311.

Supreme Court of Vermont.

Feb. 7, 1957.

Richard W. Foss, Burlington, for plaintiff.

Jacob Kaplan, Burlington, for defendant.

Before JEFFORDS, C. J., and CLEARY, ADAMS, HULBURD and HOLDEN, JJ.

HOLDEN, Justice.

By a complaint to the court of chancery for Chittenden County, the plaintiffs asked that court to enjoin the construction of a motel by the defendants in the Town of South Burlington. The effort of the plaintiffs to invoke equitable relief is founded on the provisions of the protective zoning ordinance of the Town of South Burlington, dated June 7, 1947 as amended March 1, 1952. The chancellor's findings and reasonable inferences to be drawn therefrom establish these factors to the final decree that followed.

The plaintiffs Thompson are husband and wife and own certain land which they have long occupied as a homestead, situated on the north side of Bacon Street in the Town of South Burlington. Adjacent and to the west of the plaintiff's home is a corner lot of the defendants Smith, situated on the easterly side of Shelburne Road at its intersection with Bacon Street. On July 6, 1954, acting under the protective zoning ordinance referred to above, which we refer to as the ordinance, the defendants made application to the board of adjustment for a permit to erect a motel at the corner of Shelburne Road and Bacon Street. This application represented that the motel sought to be erected was to be at all points, no less than twenty-five feet from the property line of the plaintiffs. The application was heard at a public hearing July 19, 1954. The plaintiffs appeared along with some twenty-five objectors at this meeting. Details of the construction plan proposed by the application were explained at this hearing by the zoning administrative officer, one D'Acuti. The explanation and diagram of the proposed motel confirmed the statement of the application that the construction would clear the plaintiffs' west property line by twenty-five feet. This application, affording such twenty-five foot clearance, was approved by the board on the day of the hearing. The application thus approved became the building permit for the motel construction.

The plan as proposed on July 19 was not further pursued by the defendants. On August 7, 1954 the defendants applied for leave to reduce the distance intervening between the east wall of the motel and the plaintiffs' west property line from twenty-five to ten feet. The zoning administrator, D'Acuti, then called three members of the board and obtained their verbal approval to the reduction in the line limit requested by the defendants. The zoning administrative officer then endorsed on the permit of July 19 the reduction of the limit to ten feet. The board was not called into session to discuss or act on this reduction. No notice of the revision was afforded to the plaintiffs nor to any of the objectors who appeared at the public hearing of July 19, 1954. The minutes of the meetings of the board of adjustments do not recite or make reference to the reduction in the distance requirements of the original permit granted July 19.

On or about November 11, 1954 the defendants commenced construction of the motel and accomplished the building of the easterly wall of the motel a distance from ten feet to ten feet, four inches, from the defendants' west line and approximately twelve feet from the western limits of the plaintiffs' dwelling house.

The plaintiffs complained to the zoning administrative officer, D'Acuti, and to his successor in office concerning the construction, but the building was completed prior to the time the plaintiffs brought their bill of complaint to the court of equity. No appeal was taken from the action of the board or the administrative officer to the attempted revision of the July 19 permit.

The chancellor found that the value of the plaintiffs' property before the motel was constructed was $14,800 and its value following the erection of the motel was $11,100. He further found the plaintiffs sustained pecuniary damage to their real property in the amount of $3,700.

At the hearing of the cause, the defendants challenged the validity, force and effect of the ordinance. In his report the chancellor determined that the site of the motel is within an area zoned as 'residential' by the ordinance. The ordinance provides for zoning regulations and procedure incident to carrying out such regulations. Included in its provisions is: 'Sec. 17. Board of Adjustment. The board of selectmen shall appoint a board of adjustment of five (5) which shall act on all matters within its jurisdiction under this ordinance in the manner prescribed in Chapter 153 of the Public Laws of the State of Vermont.

'The board of adjustment shall be subject always to the rule that it shall give due consideration to promoting the public health, safety, convenience and welfare of the inhabitants of the Town of South Burlington encouraging the more appropriate use of land and protecting and conserving property value, that it shall permit no building or use injurious, noxious, offensive, or detrimental to a neighborhood and that it shall prescribe appropriate conditions and safeguards in each case.

'The duties shall be as follows:

'1. To hear and decide special exceptions and to authorize upon appeal in specific cases such variances from the terms of this ordinance as will not be contrary to the public interest.

'2. To adapt the requirements of the ordinance to regular, narrow, or shallow lots and to lot lines, provided that the spirit and intent of this ordinance with regard to uses is preserved.'

An additional provision of the ordinance is set forth in Finding 16. 'This Ordinance shall take effect upon acceptance by the Town of South Burlington and its approval by the Attorney General and publication according to law.' The chancellor further determined that after proper warning and publication the ordinance was 'properly submitted to the voters on a printed ballot June 7, 1947 at a special town meeting, and approved on that date. This protective zoning ordinance was recorded after its passage in Vol. 18 p. 292 of the land records of the Town of South Burlington--and was on record when the original application was submitted.'

The vehicle by which the approval of the voters was registered was a printed ballot which propounded the question thus: 'Shall the ordinance entitled protective zoning ordinance for the purpose of promoting health, safety, and general welfare of the Town of South Burlington by establishing Municipal Zoning Districts, rules and regulations and providing for administration and enforcement thereof under provision of Chapter 153 of the Public Laws of Vermont be approved and adopted.'

On March 1, 1952 the selectmen of the Town of South Burlington amended the ordinance of June 7, 1947 by enacting certain amendments which included the following:

'1. The zoning ordinance is amended to provide that the erection of Motels and Hotels in a residential area shall be allowed only after a public hearing by the Board of Adjustment.

'3. The ordinance is amended to provide that the side and rear area requirements for motels, apartment houses and hotels in areas shall be as follows:

'Side area limit shall be twenty-five feet from the property side and rear lines in residential areas.

'Side area limits shall be ten feet from the property side and rear lines in other areas.

'6. The ordinance is further amended to provide that the limit to be maintained from the rear line of lots that have a frontage on one street and a side line on another shall be ten feet from that rear line.'

The findings are concluded by paragraph 24 that contains the following statement: 'It is found that the affirmative action of the voters taken at the special town meeting of the Town of South Burlington on June 7, 1947 on said Protective Zoning Ordinance was conditional, that is, to become effective if and when approved by the Attorney General of the State of Vermont. Such approval was never obtained.' To the findings thus made, the plaintiffs excepted in this language: 'The plaintiffs except to Finding No. 24 on the ground that said finding as made is not a proper finding of fact, but is merely a conclusion of law and as such is not warranted by the evidence in the case.' The plaintiffs also took and were allowed a general exception to the final decree.

This appeal at the outset is attacked by the defendant appellees on technical grounds that introduce procedural complexities which the defendants assert protect the result below from review by this Court.

The defendants contend that Finding No. 24 is not a conclusion of law but is merely a recital of facts. This is not so. It contains one of the conditions precedent to the taking effect of the ordinance as set forth in Finding No. 16 and that this condition i. e. approved by the Attorney General had never been obtained as stated in Finding No. 17.

There was no need for the chancellor to restate these findings unless for some purpose. The clear and obvious purpose was to have the ultimate finding state a conclusion of law to the effect that the approval of the Attorney General was a valid condition and since it had not been obtained the ordinance never went into effect. The decree entered was clearly based on this conclusion.

Further, the duty and responsibility of determining the meaning of the ordinance applicable to cases before the court is a judicial function. 'Hence it is a fundamental rule that the construction of an ordinance is a question of law for the Court, and not a question of fact for a jury or the Court sitting without a jury.' 6 McQuillin Municipal Corporations Sect. 20.40 at page 100. Wilson v. New York, New Haven & Hartford R. Co., 18 R.I. 598, 29 A. 300, 301; Walsh v. Public Service Co. of N.H., 92 N.H....