2012 VT 63


NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
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2012 VT 63 

 

No. 2011-085

 

In re John Toor, Margaret Toor
  and 
Toor Living Trust NOV


Supreme Court


 


On Appeal from


 


Superior Court, 
Environmental Division


 


 


 


December Term, 2011


 


 


 


 


Thomas
  S. Durkin, J.


 

Thomas F. Heilmann and David D. Aman (On the Brief) of Heilmann,
Ekman &
  Associates, Inc., Burlington, for Appellants.
 
John H. Klesch of Stitzel, Page & Fletcher, P.C.,
Burlington, for Appellee Town of Grand Isle.
 
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington,
for Point Farm Interested
  Persons.
 
 
PRESENT:   Reiber, C.J., Dooley and Robinson, JJ.,
and Gibson, J. (Ret.) and
                    
Martin, Supr. J. (Ret.), Specially Assigned
 
 
¶ 1.            
DOOLEY, J.  Appellants John and Margaret
Toor appeal a decision of the Superior Court, Environmental Division, upholding
a notice of violation issued by the Town of Grand Isle Zoning
Administrator for changing the use of their single-family home in Grand Isle
without obtaining a zoning permit.  On appeal, appellants argue that
renting their home does not constitute a change in use under the Town’s zoning
ordinance, and accordingly they were not required to obtain a zoning permit
prior to renting.  We agree and reverse.
¶ 2.            
Appellants’ property in Grand Isle is located at the gateway to Lake
Champlain’s Inland Sea on the northern end of Ladd Point.  The
five-bedroom, four-and-a-half-bathroom home can accommodate many guests.  In
addition to the five bedrooms, appellants increased the sleeping area by adding
a so-called “bunk room” for children during renovations performed a year after
the house was purchased.  A spacious eat-in kitchen opens to a dining room
and screened-in porch, which leads to a large deck overlooking the Inland Sea.  The
property is one of several that form a shoreline community along the North and
East borders of Ladd Point, referred to as Point Farm.  The Point Farm
subdivision was approved in 1978 and called for nine residential lots, each
less than ten acres, and it includes roughly thirty-five acres of undeveloped
common land and two common septic systems.  Each lot has its own private
access to the lake, and the design of the development affords each residence a
substantial amount of privacy.  Appellants’ home is permitted as a
single-family dwelling under Grand Isle’s Zoning Bylaws and Subdivision
Regulations.  Under the bylaws, a single-family dwelling is defined
as “[l]iving quarters with cooking, sleeping and sanitary facilities provided
within a dwelling unit for the use of a single family maintaining a
household.”  
¶ 3.            
Appellants live in California and use their home in Grand Isle as a
vacation residence.  They bought the lakeside property in 2001, and have
used it to entertain guests and accommodate friends and extended family
members, some of whom live here in Vermont.[1]  In 2009, appellants started to rent
their home to defray the taxes and maintenance.  In the summer and
fall of 2009, appellants rented the home eleven times.  In some instances
the rental duration was only two nights and in others it lasted as long as two
weeks.  The groups renting the home used it in substantially the same way
that appellants use the home: family vacations, birthday and anniversary
celebrations, and entertaining guests.  Appellants charged these groups
rent for the time they used the home, including a nine-percent Vermont Rooms
& Meals Tax.  
¶ 4.            
In September 2009, the Town of Grand Isle Zoning Administrator issued a
notice of violation to appellants alleging that they had changed the use of
their property without obtaining a new zoning permit.  The notice
explained that the zoning bylaws defined development as including “any change
in the use of any structure.”  It further explained that land development
cannot “commence unless it is in compliance with all regulations and
provisions” of the bylaws.  It alleged that appellants had changed
the use of their property either to a bed and breakfast, a rooming and boarding
house, or a hotel or motel without a permit.  The first two of these uses
are permitted in the zone in which the house is situated; the last one is
not.  The notice demanded that appellants discontinue renting the house
and apply for a permit for either a bed and breakfast or a rooming and boarding
house.[2] 

¶ 5.            
Appellants appealed the notice of violation to the Development Review
Board (DRB), which upheld the Zoning Administrator’s determination, although on
a somewhat modified rationale.  They concluded that the rental of the
house meant it was not used as a “single-family dwelling,” the use for which it
was originally permitted.  The DRB noted that in the definition of
dwelling, family is defined as “one (1) or more persons living as a household
(dwelling) unit, but not including individuals or groups occupying rooming and
boarding houses, clubs, motels or hotels.”  Although the term “household
unit” is not defined in the bylaws, the DRB concluded that it meant “a group of
persons who regularly share a family-like household living arrangement.” 
It concluded that the tenants did not meet this definition because they “did
not regularly live together in a family-like household living arrangement, either
at the subject property or elsewhere.”  The DRB added that it was
irrelevant whether the use was as a bed and breakfast or hotel or motel or any
use other than a single family dwelling because the violation resulted from a
use that was different from that for which a permit had been given. 
¶ 6.            
Appellants appealed to the Environmental Division.  On
cross-motions for summary judgment, the court ruled in the Town’s favor and
upheld the notice of violation.  The Environmental Division adopted yet
another rationale, holding that it would not give any deference to the DRB’s
interpretation of the bylaws because they are unambiguous.  It held
“[d]espite the lack of further clarification in the Bylaws, it appears
conclusive to the Court that the use to which Appellants were putting their
property from July to October, 2009, as an income-producing short-term rental,
does not fit within the Bylaws’ definition of single-family dwelling use.”  In
reaching this conclusion, the court was persuaded that the “numerous financial
relationships Appellants formed via receipt of payments from each group of
individuals,” the “impermanence in composition” of the people staying at the
home, and the “short duration and holiday nature” of each group’s stay were
inconsistent with use by a single family living as a household unit.  It
stated that the proper inquiry was whether the character of the tenants’
occupancy, including the duration of the stay and the financial arrangements,
constitutes use as a single-family dwelling.  
¶ 7.            
Although the court found that the Town’s and the DRB’s attempts to
characterize appellant’s use was unnecessary, it did characterize appellants’
use as “income producing rental property” and the tenants’ use as “short-term
vacation and holiday rentals.”  The court noted particularly that it would
reach the same result “even if we assume, as Appellants argue, that each group
of renters lived together as a household unit.”  Thus, the court concluded
that appellants violated the ordinance “by changing the use of their property
to an income-producing short-term rental without first obtaining a new zoning
permit.”  Appellants filed a timely appeal.[3]
¶ 8.            
The parties agree that this appeal involves the interpretation and
application of provisions of the Grand Isle Zoning Bylaws.  Appellants’
property is located in the residential zoning district.  Grand Isle Zoning
Bylaws § 3.2.2.6 (2009).  This district has a number of permitted uses
that may be relevant to the appeal:  Bed & Breakfast, Single-Family
Dwelling, Accessory Use/Structure, Rooming & Boarding Houses, and Seasonal
Dwelling.  Id.  The parties have been focused on whether the
use is as a single-family dwelling.[4]
 “Dwelling, single family” is defined in the bylaws as “[l]iving quarters
with cooking, sleeping and sanitary facilities provided within a dwelling unit
for the use of a single family maintaining a household.”  Id.
§ 8.  Although “household” is undefined, the bylaws define “dwelling”
as follows:
A
building designed or used as the seasonal or permanent living quarters for one
(1) or more families (one (1) family domiciled per dwelling unit).  For
purposes of this definition, a ‘family’ means one (1) or more persons living as
a household (dwelling) unit, but not including individuals or groups occupying
rooming and boarding houses, clubs, motels or hotels.”  
 
Id.  The bylaws also
state, “Any land development not authorized under this Bylaw is prohibited.”
 Id. § 2.4.  
¶ 9.            
Before we address the merits, we set forth the various aspects of the
standard of review.  First, our interpretation of an ordinance, like a
statute, must be based on the intent of the drafters to the extent we can
determine it.  In re Pierce Subdivision, 2008 VT 100, ¶ 28, 184 Vt.
365, 965 A.2d 468.  Our review of an interpretation of a zoning ordinance
by the environmental division is deferential.  In re Sardi, 170 Vt.
623, 623, 751 A.2d 772, 773 (2000) (mem.).  We will overturn the
environmental division’s interpretation only on a finding of clear error.
 In re Armitage, 2006 VT 113, ¶ 3, 181 Vt. 241, 917 A.2d 437.
 Zoning ordinances must be construed narrowly in favor of the land owner.
 Appeal of Weeks, 167 Vt. 551, 555, 712 A.2d 907, 910 (1998)
(“[Z]oning ordinances are in derogation of common law property rights and
. . . ‘any uncertainty must be decided in favor of the property
owner.’ ” (quoting In re Vitale, 151 Vt. 580, 584, 563 A.2d 613,
616 (1989))); Town of Westford v. Kilburn, 131 Vt. 120, 126, 300 A.2d
523, 527 (1973)) (“Because zoning ordinances are in derogation of common law
property rights, they are strictly construed.”).  Narrow construction
ensures that requirements are ascertainable.  See In re Appeal of JAM
Golf, LLC, 2008 VT 110, ¶ 13, 185 Vt. 201, 969 A.2d 47 (“Zoning
ordinances must ‘specify sufficient conditions and safeguards’ to guide
applicants and decisionmakers.  We will not uphold a statute that ‘fail[s]
to provide adequate guidance,’ thus leading to ‘unbridled discrimination’ by
the court and the planning board charged with its interpretation.” (quoting Kilburn,
131 Vt. at 122, 300 A.2d at 525)); In re Handy, 171 Vt. 336, 346, 764
A.2d 1226, 1236 (2000) (narrow construction ensures that “a landowner [is]
given fair notice of what it can and cannot do with the land.”).  
¶ 10.        
This case was decided on summary judgment.  “Summary judgment is
appropriate when there is no genuine issue as to any material fact and any
party is entitled to judgment as a matter of law.”  In re Times &
Seasons, LLC, 2011 VT 76, ¶ 8, 190 Vt. 163, 27 A.3d 323 (citing V.R.C.P.
56(c)(3)).  In this case, the facts are undisputed, and the only question
is interpreting how the zoning bylaws apply to these facts.
¶ 11.        
Three main features of this case inform our decision.  First, apart
from the nature of the specific use in question, the house meets the definition
of a single family house.  It has “cooking, sleeping and sanitary facilities
provided within a dwelling unit for the use of a single family maintaining a
household.”  Evidence that the house is for the use of a single family is
the presence of a single kitchen, dining area and living room.  There is
nothing about the structure that violates the bylaws.
¶ 12.        
Second, the uses that appellants put the property to when they are
occupying it, or even when they are not present, are essentially the same as
the uses to which the tenants put the property.  The house is a large vacation
house with many bedrooms, a dining area for fifteen, and a large kitchen with
three ovens and two refrigerators.  As John Toor stated in his affidavit,
“[t]here was a steady stream of visitors, parents, siblings, children and
friends.  Unless there were overflows due to the large number of people we
had as guests, on most occasions they all stayed at the house with us.” 
Friends and relatives used the property when appellants were not there.  With
one exception, rental of the house was to a single person or a couple, who then
invited others to use it with the renter(s).[5] 
¶ 13.        
Third, the position of the Town and the adjudicative bodies
significantly morphed as this case worked through the process.  The original
notice of violation viewed appellants’ illegal act primarily as a failure to
obtain a permit for a bed and breakfast or a rooming or boarding house, both
permitted uses.  In fact, the notice of violation required appellants to
submit a permit application for one of these uses.  By the time the case
reached us, the Town conceded that appellants’ use is neither as a bed and
breakfast nor a rooming and boarding house.  The Town’s position now is
that the use is unauthorized and therefore illegal under the bylaws’ residual
prohibition on unauthorized uses.  
¶ 14.        
The DRB concluded that the violation occurred because persons occupying
the house “did not regularly live together in a household living arrangement,
either at the subject property or elsewhere.”  The DRB derived this
rationale by adding the word “regularly” to the wording of the bylaws, but
there is no indication that this addition was intended.  This addition was
simply an ad hoc way to exclude groups of people coming together for their
temporary social enjoyment.  In fact, under this rationale, appellants’
use of the house when they were occupying it would violate the bylaw as long as
they had friends or relatives staying with them because that group did not
regularly live together at any location.  
¶ 15.        
The Environmental Division’s opinion is not based upon whether the
rental groups regularly lived together as a household—indeed, the court held
that there was a violation even if each group were living together as a
household unit.  What was important to the Environmental Division was the
nature of the rental groups, taken as a whole.  The court’s view was that
the violation occurred because of the income production, through numerous
financial arrangements,[6]
and the short-term rental periods, which created impermanence.[7]
¶ 16.         For
a number of reasons, we cannot accept any of the rationales for finding a
violation of the bylaws.  In construing a zoning ordinance, “we consider
the whole of the ordinance and try to give effect to every part.”  In
re Vermont Nat’l Bank, 157 Vt. 306, 312, 597 A.2d 317, 320 (1991).  We
do not conclude that these rationales consider the bylaws as a whole to discern
the intent of the drafters or engage in narrow construction that will allow a
landowner to know what is prohibited.  As a result, even in light of the
deference that we extend to the court’s interpretation of the bylaws, we
conclude that the Environmental Division committed clear error and reverse its
conclusion.  
¶ 17.         We
start with the recognition that having non-paying overnight guests, whether
family or friends, is a normal incident of use of a single-family home. 
We see no reason that this normal incident would depend upon the presence of
the homeowner.  Nor do we believe that it would depend on the length of
the guest’s stay.  The permitted use is for a single-family dwelling
defined as “[l]iving quarters with cooking, sleeping and sanitary facilities provided
within a dwelling unit for the use of a single family maintaining a household.”
 Zoning Bylaw § 8.  As we stated above, appellants’ structure
clearly complies with the bylaw.  Although the language of the definition
relates more to the structure than the use of that structure, we agree with the
Town that when the wording is used to define a permitted use, it must regulate
the use.  Before appellants rented the house, their use complied with the
definition because there was no prohibition on having guests occupy the
house.  Appellants were the single family that maintained the household.
¶ 18.         Thus,
the issue reduces to whether the definition becomes inapplicable because
appellants rent to tenants who use it for the same purpose as appellants.[8]  Under appellants’ interpretation,
each renter is a single family that maintains a household during the period of
the rental.  The objection of the Environmental Division to that
interpretation is that, taken as a whole, the use has changed from a personal
use to a commercial use or to a mixture of both.  Viewing the ordinance as
a whole, we cannot agree with that objection.  The bylaws allow commercial
uses in this zone: bed and breakfast, rooming and boarding house, and home
offices.  Indeed, the bylaws state that, for the purpose of defining a
dwelling, a family is “one or more persons living as a household (dwelling)
unit, but not including individuals or groups occupying rooming and
boarding houses, clubs, motels or hotels.”  (Emphasis added.)  The
specific exclusion implies that “one or more persons living as a household”
could, absent the exclusion, encompass transient and commercial living arrangements.[9]  Given that the bylaws permit these
uses, we see no reason to imply a prohibition on commercial activity in this
particular permitted use.  It is not the commercial nature of uses that
defines the limits of this zone.  
¶ 19.         The
Environmental Division appears to have held that it matters to the definition
whether the tenants rent for a short term or a long term and whether the
composition of the occupants is impermanent.  We cannot square these
considerations with the definition that we are interpreting.  The
definition requires occupancy by a family living as a household unit.  If
the renters are not the family for purposes of the definition, it does not
matter whether the renters are present for a day or for a year.  Their
occupancy would be illegal.  The Environmental Division seemed to conclude
that, even if each rental group constituted a household, the aggregate
occupancy of the rental groups did not constitute occupancy by a single
household.  We find nothing in the bylaws to support this
conclusion.  At any given time, the occupancy of the house was by a single
household.  If the Town meant to require more than this, it could easily
have included something to that effect in the bylaws.  Lastly, if there is
a concern about impermanence of composition of each group, it would apply
whether appellants were renting the property or using it themselves together
with guests or for guests without them.  
¶ 20.         Again,
in reading the bylaws as a whole, we are struck by the presence of bed and
breakfasts and rooming and boarding houses as permitted uses, even though all
parties concede that appellants’ rentals do not fit these uses. 
Interested parties have argued that appellants’ tenants represent an intensity of
use higher than that for rooming house occupants because such a house is
limited to seven occupants and bed and breakfast occupants because such a
facility is limited to eight occupants.  Zoning Bylaws § 8.  Despite
the limitations, we find it incongruous to allow such uses and prohibit rental
of single-family houses for any number of occupants.[10]  
¶ 21.         In
reaching our conclusion, we are particularly affected by the requirement of
narrow construction and the need for landowners to be able to ascertain the
line between proper use of their property and illegal use.  This is a
violation proceeding that could result in large fines if we find that
appellants’ use was illegal.  Apart from the question of support for the court’s
rationale in the language of the bylaws, we can find no ascertainable rules in
its decision.  As noted above, the court itemized a number of factors but
created no bright lines for any of them and no specification of the chemistry
among them.  Each of the various arguments attempting to define why
appellants’ rental use was illegal may have resolved this case but created no
usable rule to apply in the future.  In our view, a careful landowner who
wanted to avoid being fined would avoid renting to anyone irrespective of the
tenants’ usage or the duration of rental.  To some extent, uncertainty is
the cost of case-by-case adjudication, but it reinforces the need for
legislative action to create workable solutions in areas of broad general
standards.  The Town could clearly prohibit appellants’ use, but we cannot
read the current bylaws as having done so.
¶ 22.         Our
reaction is heightened by the policy arguments.  The
interested-party-adjoining landowners and the Town both make arguments
regarding why appellants’ use is undesirable particularly when there is no
limit on the number and characteristics of the renters.  Since we are
attempting to construe a municipal ordinance, these arguments are for the
municipal governing body rather than the judiciary.  We are not the body
to resolve the conflicting interests of the landowner, the neighbors of the
landowner, and the Town and all its citizens except under ascertainable
standards adopted by the Town.  In this case, we cannot find that there
are such standards that prohibit this use of appellants’ property.[11]  Creating a bylaw that balances the
interests of the landowner, other landowners nearby and the Town is the only
proper way to address these interests and effects.  Interpreting the
existing bylaw to properly weigh the interests and fashion a balanced solution
is well beyond our role.
Reversed. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
In addition to hosting relatives and friends when they are occupying the house,
appellants have allowed friends and relatives to use it when they are not
there.  On three occasions, they donated the use of the house at a school
fund-raising auction.  In none of these circumstances did appellants
impose any charge for being present in the house.  
 


[2] 
Appellants raise a number of practical questions about when, and how often,
they would be required to obtain a new permit as they shifted between using the
property themselves, allowing others to use it without charge and renting it to
tenant users.  We note that the bylaws do not prohibit multiple permitted
uses of the same property.  Thus, we interpret the requirement, as imposed
by the Zoning Administrator, as demanding that appellant obtain an additional
building permit, and not a replacement permit.  


[3] 
Neighboring residents of Ladd Point have participated in this case on appeal as
interested persons and oppose appellants’ use of their home as a short-term
rental property.  They complain that appellants’ rental of their home
undermines the permanence, stability, and quiet seclusion of their lake-front
properties.   
 


[4] 
A seasonal dwelling is a structure that is not used as a primary residence and
is not occupied for more than six months per year.  Zoning Bylaws §
8.  The facts appear to better fit this use than that of a single-family
dwelling.  It is not clear that redefining the use to seasonal dwelling
would change the issues on appeal.  Thus, we rely upon the
characterization of the parties.
 
As noted infra, rental of the property might be
considered an accessory use if it is “incidental and subordinate to the
principal use.”  See id.  Neither the Town nor the parties
raised whether rental of the property was an accessory use.  See note 10, infra.


[5] 
The exception was that three couples used the house for two nights to celebrate
a Jewish holiday and each couple paid their share independently.  The Town
has not argued that this rental, as opposed to the others, violated the bylaws
because it was a multi-family use.  The environmental division opinion is
based, in part, on the “sum of Appellants’ financial relationships with the
groups,” and the “numerous financial relationships.”  Although the
point of the court is unclear, as discussed infra in note 6, we do not
read it as relating to the unique arrangement for the three couples.
 


[6] 
The Environmental Division mentioned the “numerous financial arrangements,” and
the “sum of appellants’ financial arrangements,” as factors.  There is no
explanation why the court found these factors relevant, and we discern
none.  Thus, we conclude that the court relied upon the numerous
short-term rentals and the fact that appellants charged rent.
 


[7] 
Although the Environmental Division criticized the DRB decision and apparently
refused to follow it, the court’s impermanence factor and the DRB’s requirement
that the household unit regularly live together bear significant
similarities.  We note, however, that this factor, which is the
centerpiece of the DRB rationale, appears to be less significant to the court’s
rationale.
 


[8] 
Although we ultimately agree with appellants’ position, we do not agree with
the argument that the case is controlled by In re Sardi, 170 Vt. at 624,
751 A.2d at 774 and Vermont Baptist Convention v. Burlington Zoning Bd.,
159 Vt. 28, 30, 613 A.2d 710, 711 (1992).  In those cases, we held that
zoning cannot be “based solely on the ownership rather than the use of
land.”  Sardi, 170 Vt. at 624, 751 A.2d at 774.  Those cases
involved attempts to distinguish between functionally identical usage based on
the ownership arrangement.  These are not holdings that zoning must be
indifferent to a distinction between non-commercial and commercial usage. 
Here, of course, there was no change of ownership and the argument is about
use.  
 


[9] 
We recognize, as the dissent explained in Rutland Herald v. City of Rutland,
2012 VT 26, ¶¶ 44-46, ___ Vt. ___, ___ A.3d ___ (Dooley, J., concurring
and dissenting), that use of the term “including” or “not including” does not
always mean that the general element—here, the household (dwelling)
unit—encompasses the specific inclusion or exclusion.  We must read the
exclusion in context.  Nothing in the context here would suggest that the
exclusion is not part of the general element.


[10] 
There is another drafting point about treatment of these uses.  The
definition of rooming house is a building where more than two persons and fewer
than eight persons for a fixed period of time are supplied with or charged for
sleeping accommodations.  Zoning Bylaws § 8.  Under the Town’s
theory, providing a rooming house for two occupants would be illegal for no
apparent reason.
 


[11] 
Although no party raised this issue, we do not exclude that the Town could
regulate rental of vacation properties as an accessory use.  Accessory
uses are permitted in the residential shoreline district.  Zoning Bylaws §
3.2.2.6.  They are defined as uses “incidental and subordinate to the principal
use.”  Id. § 8.  Accessory uses are well-developed in zoning
law, such that standards have developed.  See Town of Salem v. Durrett,
480 A.2d 9, 11 (N.H. 1984).
 



