Town of Milton By and Through Yusitis v. LeClaire

• Decision Date: 01 June 1971
• Docket Number: No. 70-69,70-69
• Citation: 282 A.2d 834,129 Vt. 495
• Court: Vermont Supreme Court
• Parties: TOWN OF MILTON, By and Through Vincent YUSITIS, Zoning Administrator v. Wilfred LeCLAIRE et al.

Page 834

282 A.2d 834

129 Vt. 495

TOWN OF MILTON, By and Through Vincent YUSITIS, Zoning Administrator v. Wilfred LeCLAIRE et al.

No. 70-69.

Supreme Court of Vermont.

June 1, 1971.

Reargument Denied Oct. 28, 1971.

Latham, Eastman & Tetzlaff, Burlingtion, for plaintiff.

John A. Burgess, Montpelier, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

This is an action brought by Vincent Yusitis, Zoning Administrator of the Town of Milton against Wilfred LeClaire in the Chittenden County Court of Chancery, to compel the removal of a mobile home, placed upon the premises of LeClaire, in claimed violation of the Milton Protective Zoning Ordinance. The principal question presented is that of the validity of the Zoning Ordinance of the Town of Milton. The case was partially heard on July 27, 1967, with a continued hearing on May 22, 1968, at which time the hearing on the merits was complete. The Chancellor made findings of fact on March 10, 1969, and entered his order declaring that the placing of the mobile home or trailer on the LeClaire property was in violation of the Milton Zoning Ordinance, and directing removal of such structure from the LeClaire premises. An appeal to this Court was duly taken by the defendants.

The first contention brifed by the defendant is that the Zoning Ordinance of the Town of Milton was adopted in contravention of statutory requirements relating to notice and is therefore invalid.

In 1966, and up to and including the time in 1967 when the voters of Milton voted on the question of Adopting a Zoning Ordinance, 24 V.S.A. § 3004, subsections (b) and (c) and (d), since repealed, were in full force and effect.

'3004. Adoption of the plan.

(a) * * *

(b) When satisfied that the plan as submitted by the zoning commission or as amended by the legislative body will most effectively promote the health, safety and general welfare of the municipality, the legislative body shall approve such plan and publish it or mail it to each voter on the check list of the municipality at. * * *'

In 24 V.S.A. § 3004(b) the Legislature gave two methods to the legislative body of a town to properly inform the voters of the municipality of the plan for zoning upon which they would cast their ballots for approval or disapproval of the plan at a duly warned meeting. One such choice was to mail to each voter on the check list a copy of the plan. The other was to publish such plan in a newspaper. The selectmen of the Town of Milton decided to adopt both methods. Publication of the plan was made in the Burlington Free Press, and copies of the plan were posted in three different public buildings in Milton.

But the selectmen also mailed copies of the plan to each voter of the town, although the appellant claims that this method of notification was not properly done because copies of the plan were mailed to 'Mr. and Mrs.' in the case of married couples who were both voters in the town. It is the contention of the appellant that this method of notice could be complied with only by a separate mailing to each voter on the list.

'In the interpretation of statutes the fundamental rule is to ascertain and give effect to the intention of the legislature, and, if it can be fairly done, a statute must be construed to accomplish the purpose for which it was intended, and should not be so construed so strictly as to defeat its purpose.' Abbadessa v. Tegu, 121 Vt. 496, 498, 160 A.2d 876, 878.

The statute does not make the specific requirement that an individual mailing must be made to each voter on the check list. All that is required is that each voter shall receive a mailing of the plan. It can hardly be said that a mailing addressed to 'Mr. and Mrs.' is not equally directed to each of the addressees, and directs the attention of each of the couple to the letter or plan enclosed. The legislative intent, expressed in former 24 V.S.A. § 3004(c) was to give each voter in a municipality the opportunity to study the proposed zoning plan before voting on it. For this Court to hold that a letter addressed to both a husband and wife did not serve to give each of these two voters an opportunity to inspect the zoning plan, would be an overzealous strict construction of the statute which could lead to absurdity.

However, a more serious question is presented by the contention f the appellant that the warning of the meeting to vote on the zoning ordinance was defective, and that the resulting vote was consequently void. Appellant refers us to the third section of former 24 V.S.A. § 3004(c) and we again quote:

'The warning of such meeting and the ballot shall refer to the plan by title only, giving date of approval by the legislative body, date and newspaper if any in which published and stating where within the municipality a copy of the is posted.'

The evidence is not disputed that the text of the warning for the town meeting to vote on the adoption of the zoning ordinance did not contain the title of the plan, the date of approval of the plan by the Board of Selectmen of Milton,...