In re Bowen Conditional Use Application After Remand ( 2011 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-112
JULY TERM, 2011
In re Bowen Conditional Use Application } APPEALED FROM:
After Remand }
}
} Superior Court,
} Environmental Division
}
} DOCKET NO. 93-6-10 Vtec
Trial Judge: Merideth Wright
In the above-entitled cause, the Clerk will enter:
Applicant appeals from an order of the environmental division of the superior court
denying her application for a conditional use permit to operate a business on her residential
property in the Town of Richford. She contends the court erred in concluding that the proposal
was not an “outdoor recreation” consistent with the purpose of the zoning ordinance. We affirm.
Applicant applied for a permit to operate a business on her residential property in the
Town’s Conservation 1 zoning district. Applicant described the proposed home-based business
as one involving “sifting mine dirt to find gems and specimens.” She explained that she planned
to import mined dirt containing various minerals from a gem mine in Maine, sell buckets of dirt
to customers, and supply various tools for them to extract the minerals from the dirt including a
water recycling sluice. The proposal included a canopy, parking area, and port-a-potty.
Applicant sought approval for the project as an “outdoor recreation,” one of several
conditional uses permitted in the Conservation 1 zoning district. The zoning bylaw defines
“Recreation-Outdoor” as follows: “Includes golf courses, golf driving ranges, trap, skeet and
archery ranges, swimming pools, skating rinks, tennis courts, riding stables, recreation stadiums,
skiing, campgrounds, boys and girls camps and similar places of outdoor recreation.” Town of
Richford Zoning Bylaw § 7, at 55 (2005) The Zoning Board of Adjustment denied the
application, and applicant appealed to the Environmental Court. The parties filed cross-motions
for summary judgment, and the court issued a written decision in November 2010 in favor of the
Town. The court denied a subsequent motion to alter or amend in February 2011. This appeal
followed.
It is axiomatic that our goal in construing a statute or ordinance is to discern and give
effect to the legislative intent, and to this end we frequently resort to settled rules of construction.
State v. Ben-Mont Corp., 163 Vt. 53, 57 (1994). “[W]hen construing an enactment with a series
of defining terms, we will apply the rule of ejusdem generis” pursuant to which general terms
that follow specific terms “will be construed to include only those things similar in character to
those specifically defined.” Vt. Baptist Convention v. Burlington Zoning Bd., 159 Vt. 28, 30
(1992) (quotation omitted).
Although the structure of the ordinance in question—listing specific outdoor recreational
facilities followed by the general provision “and similar places of outdoor recreation”—plainly
lends itself to application of the rule, applicant maintains that “[t]he listed activities compose
such a diverse range of activities that no commonality can be found that would distinguish them
from the proposed mine dirt sifting operation.” The trial court disagreed, as do we. As the Town
observes, all of the bylaw’s enumerated venues for “outdoor recreation” facilitate the pursuit or
observation of outdoor sports and exercise, from tennis courts, to campgrounds, to skating rinks
and recreational stadiums. The gem-sifting proposal may be “recreational” in the broad
dictionary sense of recreation: “an amusing or stimulating activity,” Webster’s II New Riverside
University Dictionary 984 (1984), but the general definition is narrowed by the specific
examples that follow, and the proposed home-business plainly falls outside the common theme
that informs them.∗ Accordingly, we find no grounds to disturb the judgment.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
∗
Although the trial court here found a slightly different common element, involving
what it described as use of the natural “topography” or “natural resource values” of the
landscape, PC 26 it is settled that we may affirm a judgment on different grounds than those on
which trial court relied. See Caledonian-Record Pub. Co. v. Vt. State Colleges, 2003 VT 78,
¶ 7, 175 Vt. 438 (affirming judgment where “[w]e reach the same result as the trial court but
based on different reasoning”).
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