In re Sardi

In re Sardi (99-069); 170 Vt. 623; 751 A.2d 772

[Filed 17-Mar-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-069

                             DECEMBER TERM, 1999


In re Appeal of Vincent and            }	APPEALED FROM:
June Sardi, et al.	               }
			               }
     	                               }	Environmental Court
                                       }	
                                       }
                                       }	DOCKET NO. 148 & 155-9-97 Vtec	


             In the above-entitled cause, the Clerk will enter:


       Neighbors challenge the Environmental Court's decision that upheld a
  conditional use permit  granted to applicant Trailside Ski Club of New
  Jersey, Inc. They contend that the proposed facility is  a private club,
  rather than a lodge, and therefore, applicant should not be allowed to use
  the site as  proposed.  They also argue that, if the facility is a lodge,
  it cannot comply with the requirements of  the conditional use permit.  We
  affirm.

       Applicant is a non-profit New Jersey corporation established in 1964
  to foster and encourage  skiing.  Since that time, its members have
  traveled to Vermont to ski and have rented various  overnight
  accommodations in the Sugarbush area.  In January 1997, applicant purchased
  an  undeveloped 3.4 acre lot in a Rural Residential District (R-2) in
  Warren, Vermont.  Applicant's goal  is to create overnight accommodations
  for its members.  The proposed facility will be primarily used  on weekends
  during the ski season.  Neighbors are a group of individuals concerned that
  their nearby  properties will be adversely affected by applicant's proposed
  development and use of the property.

       In April 1997, applicant applied for a permit to build an
  eight-bedroom, single-family house.   The Zoning Administrator denied the
  application and responded that the proposed use more  appropriately fell
  under the definition of a ski lodge, thus requiring a conditional use
  permit.   Applicant revised its application and obtained site plan approval
  from the planning commission and  a conditional use permit from the zoning
  board of adjustment.  Neighbors sought review of both the  site plan
  approval and the conditional use permit from the environmental court.  The
  court first  determined that the proposed facility was appropriately
  classified as a lodge and granted summary  judgment to applicant. 
  Following a de novo hearing on the merits of the application, the court 
  granted site plan approval subject to certain requirements such as driveway
  maintenance and  vegetated buffer zones, but denied conditional use
  approval due to the inadequacy of the 

 

  proposed  septic system.  At a reconsideration hearing, the environmental
  court reviewed the septic  and well system design and granted the
  conditional use approval with additional conditions imposed  relating to
  the septic system.
	
       Our review of environmental court decisions is deferential.  See
  Badger v. Town of  Ferrisburgh, 168 Vt. 37, 39, 712 A.2d 911, 913 (1998). 
  We defer to the Environmental Court's  interpretation of a zoning ordinance
  unless it is clearly erroneous, arbitrary, or capricious.  See id.

       The environmental court considered two issues.  The threshold issue
  was whether the  proposed facility should be classified as a lodge or a
  private club under the Warren Zoning By-Laws.  This issue is dispositive
  because private clubs are not allowed in R-2 districts, while lodges are a 
  conditional use.  Once the court determined that the facility was properly
  classified as a lodge, the  second issue was whether the proposed project
  complied with all of the conditional use requirements.

       In considering the proper classification, the court found that the
  proposed facility fit the  definition of a lodge.  The Warren Zoning
  By-Laws define a lodge as:


     A building or group of associated buildings containing up to ten 
     (10) bedrooms for occupancy by transients on a short-term basis of 
     less than one month average, which may offer dining facilities for 
     the overnight guests of the lodge only.

  Warren, Vt., Zoning By-Laws art. VII, § 1 (March 1996).  A private club is 
  defined as:

     A corporation, organization, association or group of individuals 
     existing for fraternal, social, recreational or educational purposes, 
     for cultural enrichment or to further the purposes of agriculture, 
     which owns, occupies, or uses certain specified premises, which is 
     not organized or operated for profit, and the benefits of which are 
     available primarily to members only.

  Id. 

       Because the proposed facility comprised an eight-bedroom building to
  be used by applicant's  members for weekend trips to Vermont and its dining
  facility could only be used by applicant's  members, the court decided that
  the facility fell under the definition of a lodge.  The court reasoned 
  that the term "private club" should be used to encompass those projects
  that do not fall into one of  the other zoning categories.

       On appeal, neighbors argue that the court failed to properly interpret
  the zoning by-laws, and  that the by-laws clearly establish that
  applicant's building should be classified as a private club.   Neighbors
  also contend that even if applicant's facility could be classified as both
  a lodge 
  
 

  and a private club, the private club is the primary use due to the fact
  that only members may be  overnight visitors.  In other words, their
  theories are based on the idea that applicant should not be  allowed to
  create a lodge because of its private-membership status.  This theory would
  require us to  construe the zoning ordinance as permitting regulation of
  property based solely on the ownership  rather than the use of the land. 
  This result is inconsistent with the authority that the Legislature has 
  granted to municipalities.  See 24 V.S.A. § 4401; Vermont Baptist
  Convention v. Burlington Zoning  Bd., 159 Vt. 28, 30, 613 A.2d 710, 711
  (1992).  The Legislature has authorized municipalities to  regulate the
  following:

     (A)  Specific uses of land, water courses, and other bodies of water;
     (B) Dimensions, location, erection, construction, repair, 
     maintenance, alteration, razing, removal and use of structures; 
     (C) Areas and dimensions of land and bodies of water to be 
     occupied by uses and structures, as well as areas, courts, yards and 
     other open spaces and distances to be left unoccupied by uses and 
     structures; [and] 
     (D) Density of population and intensity of use.

  24 V.S.A. § 4401(b)(1).  This enumeration of powers does not rely on the
  identity of the owner.   Instead, it deals only with the use of such areas. 
  The primary purpose of zoning is to facilitate  the orderly development of
  communities by confining particular uses to defined areas.  See  Badger, at
  39, 712 A.2d 911, 913.  The fact that the facility may also be classified
  as a private  club does not affect the actual use of the property, which
  will be as a lodge.  Therefore, the  environmental court's decision was not
  clearly erroneous. 

       We next consider whether the proposed facility complies with the
  requirements of the  conditional use permit.  Neighbors argue that the
  court erred: (1) in finding that the character of  the area would not be
  adversely affected; (2) in finding that the water and waste disposal system 
  would be adequate; (3) in finding that traffic in the area would not be
  adversely affected; and 4)  by imposing permit conditions that are
  illusory.  We consider each of these arguments in turn.

       Neighbors first maintain that the court considered too large an area
  in determining  whether the character of the area would be adversely
  affected by the proposed facility.  Neighbors  argue that the court should
  have considered only abutting properties and those properties that  share
  the private right-of-way.  Apparently, neighbors believe that only these
  properties would be  affected.  Only four parties to this action own
  property that either abuts applicant's land or shares  the right-of-way. 
  We note that, under this theory, five of the nine parties no longer have an 
  interest in this action because their property will be unaffected. 
  Neighbors cite In re Gaboriault,  ___ Vt. ___, ___, 704 A.2d 1163, 1165
  (1997) for the proposition that the court should consider  only the
  immediately-surrounding area.  They misinterpret our holding in that case. 
  The trial  court in Gaboriault found that a neighboring residential
  community would be affected by the  parking lot, and the appellants argued
  that a 

 

  larger area should be considered.  See id.  We did not set a specific land
  measurement to be used  in cases considering adverse impacts.  Rather than
  resort to a rigid definition of size, we held that  the court was required
  by regulation to consider the character of the "area affected."  Id.

       In the instant case, the court discussed the abutting properties, as
  well as the larger area.   The court noted the quiet, residential nature of
  the immediate neighborhood, but appropriately  acknowledged that the Warren
  area is heavily influenced by ski tourism.  The court included two 
  provisions in its final order designed to ensure that the lodge does not
  adversely affect the nearby  single-family residences.  The first is that
  adequate vegetated buffers be maintained on two sides  of the property, and
  the second is that the property not be used for outdoor events involving 
  amplified music or the consumption of alcohol.  Neighbors have failed to
  show that, given these  conditions, there will be any adverse effect,
  regardless of the area considered.  There was no  error.

       Neighbors next argue that the water and wastewater disposal unit would
  be inadequate to  serve a thirty-two person facility.  They first point to
  the fact that the issue of whether the facility  was a lodge or a private
  club had not yet been determined.  They maintain that there is nothing in 
  the permit as issued by the Vermont Agency of Natural Resources to indicate
  that the permit was  for a lodge and not a private club or that applicant
  proved the wastewater-capacity figure that  would be appropriate to each
  use.  This argument is meritless since private clubs are not a  permitted
  use in R-2 districts; therefore, the State could not have issued a permit
  for such use.   Neighbors also argue that the court improperly allowed the
  admission of a post-trial affidavit at  the reconsideration hearing and
  that applicant failed to prove that the 1,440 gallons of sewage per  day
  would be adequate for a thirty-two person building.  The court originally
  denied the  conditional use permit because, in looking at the design
  standards, it found nothing to indicate an  assumption of four adults per
  each of the eight bedrooms.  After a reconsideration hearing, the  court
  admitted that in reviewing the permit issued by the State of Vermont, it
  had overlooked the  introductory language, which referred to the capacity
  as thirty-two persons in eight bedrooms.   The court also acknowledged that
  it would be improper to consider any evidence propounded by  the affidavit. 
  Based, therefore, on previously submitted exhibits and oral arguments at
  the  reconsideration hearing, the court determined that the systems as
  designed would be adequate.   We are reluctant to substitute our own
  judgment for that of the experience and expertise of a  designated agency. 
  Cf. Lemieux v. Tri-State Lotto Comm'n., 164 Vt. 110, 112-13, 666 A.2d 1170, 1172 (1995) ("Absent a compelling indication that an agency has
  misinterpreted the statute  it has been charged to execute, we will defer
  to the agency's judgment.")

       Neighbors next contend that the environmental court erred in
  concluding that traffic in  the area would not be adversely affected.  They
  argue that applicant's 200 members could desire  access to the facility at
  the same time, which would adversely affect the traffic pattern on the dirt 
  lane right-of-way.  The court found that the proposed use would involve no
  more than twelve  vehicles, and thus would not adversely impact the
  traffic.  The record shows that 

 

  the proposed facility has parking space for only twelve vehicles and
  sleeping accommodations  for only thirty-two individuals.  Neighbors' fears
  that over 200 members will attempt to make  their way over the dirt lane on
  the same weekend are not credible.
	
       Neighbors' final argument is that the environmental court would be
  unable to enforce  several of the conditional use permit conditions and the
  conditions are therefore illusory.   Specifically, they contend that it
  would be impossible for the court to determine if the facility  exceeded
  its maximum wastewater capacity or to police the requirement that all cars
  traversing  the private road are equipped with snow tires.  Like the
  conditions we upheld in Robinson, "the  conditions are not vague; they are
  unqualified and definite."  In re Robinson, 156 Vt. 199, 202,  591 A.2d 61,
  62 (1991).  They specifically state that a maximum of 1,440 gallons of
  wastewater  per day may be disposed of into the septic system and that all
  cars using the property in winter or  while snow is present shall be
  equipped with snow tires.  Further, the conditions are enforceable  in the
  same way that all other permit conditions dealing with water and private
  roads are  enforceable.  See id., 591 A.2d  at 62-63  State agents are
  empowered to monitor compliance with  regulations and permits.  See 10
  V.S.A. § 8005.  Any violation of the requirements set forth in  the
  conditional use permit would constitute a violation of the zoning
  ordinance.  See Robinson at  202, 591 A.2d 61, 62-63.  The zoning
  administrator is authorized to enforce zoning by-laws by  appropriate
  actions.  See 24 V.S.A. § 4444.  In addition, interested persons, such as
  neighbors,  may appeal to the board of adjustment in the event the
  administrator fails to act on their  complaints.  See id. § 4472(a). 
  Neighbors, therefore, have failed to prove that the environmental  court's
  imposition of conditional use permit conditions was clearly erroneous.


       Affirmed.	

                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice