Badger v. Town of Ferrisburgh , 168 Vt. 37 ( 1998 )

Dooley, J.

Todd and Nina Badger (property owners) appeal an environmental court decision affirming the Town of Ferrisburgh’s decision to deny them a zoning permit for a three-unit dwelling. The issue on appeal is whether § 512 of the Town’s zoning ordinance governing discontinuances of preexisting nonconforming uses requires, as a prerequisite to discontinuance, an intent to abandon. We hold that intent to abandon is not required by the ordinance, and affirm the environmental court’s grant of summary judgment in favor of the Town.

The environmental court traced the history of the building at issue in this appeal to 1963 when it was purchased as a two-family residential structure by the Burnets. Thereafter, the Burnets added a small apartment, making the building a three-unit dwelling. At that time, the town zoning ordinance allowed multi-family dwellings in the district in which the building is located.

In 1977, the building was conveyed to John and Ellen Laberge, who converted it into a four-family dwelling, again in compliance with the zoning ordinance. In 1980, the Town adopted a new zoning ordinance allowing only one and two-family dwellings in rural residential districts as “By Right Uses.” The building is located in such a district. After 1980, the ordinance prohibited the use of any nonconforming multi-family dwellings except through an application for a Planned Residential Development (now § 528 of the current zoning ordinance). The new ordinance specifically protects preexisting nonconforming uses. As amended in 1988, § 512 of the zoning ordinance allows indefinite continuation of nonconforming uses provided the use has not been discontinued for one year.

In 1985, the Laberges conveyed the property to Ira Farnsworth, who subsequently conveyed the property to Eppe and Judith Bos in 1988. Shortly thereafter, the Boses found themselves in financial difficulty, and in 1989 foreclosure proceedings were initiated against them. In 1991, Associates National Mortgage Corporation (ANMC) became the record title owner of the property as a result of the foreclosure. In order to receive payment on its loan guarantee, ANMC turned the property over to the United States Department of Housing and Urban Development (HUD).

HUD required all tenants to leave the building, and it became vacant in October 1992. HUD auctioned the property on May 25,1994 to the current property owners, who planned to use it as a three-family unit. By the time property owners obtained title to the building, it had been vacant for twenty-two months.

When property owners converted the building from four units to three units without seeking Town approval, the town zoning officer issued a notice of violation for “Land development without a permit; specifically, reconstruction of a house into three apartments.” The property owners unsuccessfully appealed to the zoning board of adjustment. The board held that the preexisting, nonconforming-use status of the building had lapsed because the use had been discontinued for twenty-two months.

The property owners appealed to the environmental court, and both parties moved for summary judgment. Rejecting property owners’ argument that § 512 of the zoning ordinance requires an intent to abandon before an owner loses nonconforming use status by discontinuance, the court held that property owners had to comply with the current zoning ordinance, which limits the number of units to two. This appeal followed.

The appeal centers on the meaning of § 512(2) of the Town zoning ordinance, which provides:

[A nonconforming use s]hall not be re-established if such use has been discontinued for a period of at least one year or has been changed to, or replaced by, a conforming use. Intent to resume a nonconforming use shall not confer the right to do so. If a nonconforming use is not re-established within one year, the future use of the lot or structure shall be in conformance with the provisions of these regulations.

The ordinance provision is authorized by 24 V.S.A. § 4408(b), which provides:

[MJunicipalities may regulate and prohibit expansion and undue perpetuation of nonconforming uses. Specifically, a municipality may control:

(3) Resumptions of nonconforming uses, by prohibiting such resumption if such use is abandoned for any period of time or if discontinued for six calendar months regardless of evidence of intent to resume such use; ....

Property owners argue that ordinance § 512(2) must be construed to require “discontinuance for a specified period of time supplemented by some overt act or failure to have acted, indicating that the non-conforming use has been abandoned.” They claim that the facts in this case do not support abandonment of the preexisting nonconforming use. The Town argues that nonuse for twelve months, irrespective of abandonment or intent to abandon, is sufficient under § 512(2) and that such nonuse occurred here.

We evaluate these positions under a limited standard of review. We are bound by an environmental court construction of a zoning ordinance unless it is clearly erroneous, arbitrary or capricious. See Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994). We also evaluate them in light of a clear legislative purpose. The prime purpose behind zoning is to bring about the orderly physical development of a community by confining particular uses to defined areas. See Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt. 481, 483, 380 A.2d 67, 69 (1977). A goal of zoning is to gradually eliminate nonconforming uses because they are inconsistent with this purpose. See In re McCormick Management Co., 149 Vt. 585, 589, 547 A.2d 1319, 1322 (1988). The public interest in the regulation and gradual elimination of nonconforming uses is strong, see Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626, 572 A.2d 925, 930 (1990), and zoning provisions allowing nonconforming uses should be strictly construed. See Hartley v. City of Colorado Springs, 764 P.2d 1216, 1224 (Colo. 1988).

Further, we interpret a zoning ordinance under familiar rules of statutory and ordinance construction. Words in statutes and ordinances should be given their plain meaning. See In re Stowe Club Highlands, 164 Vt. 272, 279, 668 A.2d 1271, 1276 (1995) (when interpreting zoning ordinances, court construes words according to their plain and ordinary meaning, giving effect to whole and every part of ordinance). We adopt a construction that implements the legislative purpose. See id. at 281, 668 A.2d at 1277.

We acknowledge that many courts have adopted property owners’ position and require an intent to abandon before the owner can lose preexisting nonconforming use status. See Hartley, 764 P.2d at 1222-23. Where the applicable statute or ordinance uses the term discontinuance, courts reach this result by equating the term with abandonment and then holding that abandonment requires intent to abandon. See, e.g., Smith v. Howard, 407 S.W2d 139, 141 (Ky. 1966). On the other hand, some courts have held that “nonuse of the property for the time specified in a discontinuance ordinance terminates the nonconforming use regardless of intent to abandon.” See Hartley, 764 E2d at 1223.

We need not decide how we would rule if the governing rule or statute used only a durational discontinuance standard. The issue before us is fundamentally one of statutory or ordinance construction. See McLay v. Maryland Assemblies, Inc., 306 A.2d 524, 526 (Md. 1973) (effect of cessation or discontinuance of nonconforming use must depend on language of the ordinance; under facts and language of ordinance, nonconforming use status was not extinguished); Canada’s Tavern, Inc. v. Town of Glen Echo, 271 A.2d 664, 666 (Md. 1970) (under language of ordinance, cessation of use for six months results in loss of nonconforming use status). For two reasons, the applicable ordinance cannot be construed to require that a property owner intend to abandon a nonconforming use before the right to this status is lost.

First, the statutory authority for the ordinance, as set forth in 24 V.S.A. § 4408(b)(3), provides two alternatives from which a municipality may choose in implementing its policy on resumption of nonconforming uses. The municipality may prohibit resumption of a nonconforming use “if such use is abandoned for any period of time.” Alternatively, it can prohibit resumption of such a use if it is “discontinued for six calendar months.” Plainly, under the wording chosen by the Legislature, discontinuance does not mean abandonment. See In re Stowe Club Highlands, 164 Vt. at 279, 668 A.2d at 1276 (construe zoning provision to give effect to the whole and every part). A municipality may phrase its policy in terms of discontinuance only if the discontinuance has gone on for at least six months.¹ In context, the word discontinuance can only mean cessation, without the kind of intent associated with abandonment. The minimum duration replaces the intent element.

The Town has chosen a policy based on discontinuance, rather than abandonment. Thus, we cannot hold that the Town’s ordinance acts to extinguish a nonconforming use only if there has been abandonment.

Second, and to reinforce the statutory meaning, the statute and the Town ordinance go on to state that “intent to resume” a nonconforming use does not confer the right to resume. See Canada’s Tavern, Inc., 271 A.2d at 667 (ordinance language that discontinuance operates irrespective of intent not to abandon or intent to resume makes effect of provision “explicit”). Only by splitting hairs can we distinguish between a rule based on intent to resume a nonconforming use, and one based on intent to abandon a nonconforming use. These concepts represent two sides of the same coin. By stating that the durational discontinuance rule operates irrespective of the property owners’ intent to resume a nonconforming use, the Legislature and the Town were also conveying that it operates irrespective of any intent to abandon the use. As a leading zoning treatise notes:

A discontinuance provision which specifically states that it operates to prevent and prohibit resumption of a nonconforming use after a specified period of time has lapsed, regardless of any reservation of an intent not to abandon or of an intent to reserve the right to resume, removes the factor of intent to abandon; it operates even where there was no intent to abandon or even where there was an attempt not to abandon.

4 E. Ziegler, Rathkopf’s The Law of Zoning and Planning § 51B.02, at 51B-9 (4th ed. 1996) (first emphasis added) (second emphasis in original). Other courts considering similar language have reached the same conclusion. See Fuller v. City of New Orleans, 311 So. 2d 466, 468 (La. Ct. App. 1975) (although most statutes and ordinances require intent to abandon, similar provision of city ordinance means that intention will not preserve nonconforming use status); TOYS “R” US v. Silva, 676 N.E.2d 862, 868 (N.Y. 1996) (ordinance with similar language is clear and “deems the owner’s intent irrelevant”); Darcy v. Zoning Bd. of Appeals, 586 N.Y.S.2d 44, 45 (App. Div. 1992).

Our conclusion is not undermined by two additional arguments that property owners make. They argue that two of our decisions, Franklin County v. City of St. Albans, 154 Vt. 327, 576 A.2d 135 (1990), and Town of Castleton v. Fucci, 139 Vt. 598, 431 A.2d 486 (1981), require that we adopt their position that intent to abandon is required before preexisting nonconforming-use status is lost. Although both decisions involve the retention of nonconforming use status, neither dealt with the issue before us, but instead turned on whether any cessation of use had occurred. In Franklin County, we rejected the City’s argument that cessation occurred because of a reduction of the level of activities in a county jail, upholding the trial court’s conclusion to the contrary as not being unreasonable, irrational, arbitrary or discriminatory. See 154 Vt. at 331, 576 A.2d at 137. In Fucci, we held that five years of nonuse of a seasonal property constituted discontinuance, with the caveat that “we are not holding that periods of non-use, between recurring periods of seasonal use, would amount to discontinuance or abandonment.” 139 Vt. at 601,431 A.2d at 488. Neither the issues presented in those cases nor our analyses of those issues is helpful in resolving this case.²

Finally, we address property owners’ policy argument that they should not lose nonconforming-use status based on involuntary inactivity beyond their control. As we stated above, the Legislature has adopted the policy of phasing out nonconforming uses, and the ordinance provision is consistent with that policy. To implement the phase-out policy, the Legislature and the Town can decide to establish a bright line that applies irrespective of the intent of the owner’s ability to use the property. In general, a bright line aids subsequent purchasers, like property owners in this case, because they can easily ascertain whether they can use the property as a nonconforming use and, from their inquiry, determine whether they want to purchase and at what price. See Chioffi v. City of Winooski, 165 Vt. 37, 42, 676 A.2d 786, 790 (1996) (where landowner purchased property after period to restore nonconforming use had expired, landowner had no investment-backed interest in restoring the use, and the use is no longer reasonable); cf. Route 4 Assocs. v. Town of Sherburne, 154 Vt. 461, 464, 578 A.2d 112, 114 (1990) (defining term “contiguous” in zoning ordinance narrowly to require physical touching of lots promotes “certainty and reliability” of zoning regulation). The fact that property owners failed to make that inquiry in this case does not make the use of an objective standard unreasonable.

It is undisputed that use of property owners’ building as a three-family unit had ceased for over a year. Thus, the environmental court properly held that this nonconforming use could not be resumed absent Town approval.

Affirmed.

1 The statute provides that a municipality may control resumptions of nonconforming uses if discontinued for six months. See 24 VS.A. § 4408(b)(3). We construe the statute as a floor that restricts the municipality from adopting a policy less favorable to the landowner, but allows a more favorable policy. See In re White, 155 Vt. 612, 619-20, 587 A.2d 928, 932 (1990). Thus, the Town was free to establish a longer discontinuance period before a landowner lost their right to resume a nonconforming use.

2 If there is a determinative precedent, it is Town of Brighton v. Griffin, 148 Vt. 264, 270, 532 A.2d 1292, 1295 (1987), in which we noted that 24 VS.A. § 4408(b)(3) has both abandonment and discontinuance standards, and cited with approval cases that prohibited resumption of a nonconforming use based on nonuse for a specified period. We do not believe, however, that Griffin explicitly resolved the issue before us.