                                 STATE OF VERMONT
                             ENVIRONMENTAL COURT, SS.


In re: Appeal of CHARLOTTE POTOK
(Rinker’s Telecom Facility (Plainfield))                   Docket No. 131-6-06 Vtec


                            DECISION AND FINAL ORDER

       This is a municipal zoning appeal of a decision of the Town of Plainfield
Zoning Board of Adjustment (ZBA) by Applicants Charlotte Potok, landowner,
and Karl Rinker (for the benefit of, or as a representative of, “Rinker
Communications”).1 The ZBA essentially decided that the Potok property had
to be subdivided before a zoning permit application – to allow a
telecommunications tower (with associated outbuildings) to be erected on the
property – could be considered on its merits. Applicants appealed. Applicants
and Interested Persons Laura Zeisel and David Strong (“Neighbors”) have filed
cross-motions for summary judgment on the single issue raised in the
Statement of Questions. The Town has taken no position on the summary
judgment motions. For the following reasons, summary judgment is granted
to Applicants, and the Neighbors’ motion is denied.

       Applicants filed an application seeking a conditional use permit allowing
the construction of a communications tower at least 180 feet tall, and related
structures, on Ms. Potok’s property in the Rural Residential Zoning District.
See Plainfield Zoning Regulations § 4.3, at 17 (Rural Residential rules); id. § 6,
at 28 (allowing telecommunications towers and facilities as conditional uses in
all districts other than the Commercial district). The property was described in
the application as being 75 acres, and was at the time currently used primarily
for residential purposes—i.e., Ms. Potok’s own home. Rinker’s proposal is to
construct the telecommunications facilities on another, somewhat removed
part of the property, leaving the existing home, and primary residential use in
place. (The court does not here address, or resolve any merits issues regarding
size, location or visibility of the tower.)

       During a meeting at which the ZBA and the Planning Commission were
jointly considering the application, Ms. Zeisel questioned whether the Potok lot



1
 Charlotte Potok died before the August 20, 2008 oral argument on the summary judgment
motions. Because her retained life estate has expired, the property is now titled to her
children, Jed Clifford and Mia Clifford, who are in the process of being substituted as
applicants below, and appellants in this case. Mr. Clifford indicated at the 8/20 hearing that
he intended to proceed with the permit application, and this appeal.
must first be subdivided before the application is further considered.2 The ZBA
and the Planning Commission decided that the Zoning Administrator (ZA)
should initially address the subdivision issue. The matter was then presented
to the ZA, who decided that no subdivision permit was needed. Neighbors then
appealed the ZA’s decision to the ZBA.3

      The ZBA found that the property already has “a building” (the house) and
that the proposal would add other structures and out-buildings (the tower, etc.)
that not are not “accessory” in nature to the house. See ZBA Decision, ¶¶ 16–
19 (June 2, 2006). Based on those findings, the ZBA summarily concluded:
“Thus, the Plainfield Zoning Ordinance and Subdivision Regulations require
that the Potok lot be subdivided in order for the proposed development to
occur.” Id. at ¶ 20. Applicants appealed to this court.

                                     Discussion

      The Statement of Questions contains one question: “Whether a
subdivision permit is required for proposed development.” This is the sole
issue briefed in the summary judgment cross-motions.

       Neither the ZBA nor Neighbors have cited any provision of the Plainfield
Zoning Regulations or Subdivision Regulations that expressly requires a
subdivision permit in these circumstances. Rather, both the ZBA and
Neighbors appear to have inferred that both the Zoning Regulations and the
Subdivision Regulations allow no more than one principal structure or use per
lot. Because Applicants’ lot already has one principal structure (a house), and
the proposed communications facility is not accessory to a residence or home,
then – so the argument goes – the current lot would have to be subdivided to
arrive at one lot with the house, and another separate lot on which the
proposed tower (i.e., its own principal structure, and use) would be located. If
such a lot were to be created, Applicants’ application then could be considered
on its merits under the Zoning Regulations.

2
 Ms. Zeisel provided most of this background explanation, without objection, during the
August 20 oral argument.
3
 It is apparent to the court that the proceeding before the ZA on the subdivision issue, the
ensuing appeal to the ZBA, and now this appeal all have been treated by the parties, and the
ZBA, as within the larger scope of the Town’s review of Applicants’ conditional use application.
However, it might well have been considered a separate controversy, and thus the decision as
to any subdivision requirement appears to be interlocutory. The ZBA decided the subdivision
question (by essentially rejecting the ZA’s reasoning), but did not either grant, or deny the
permit application itself. However, the ZBA’s subdivision decision appears to be appealable
under 24 V.S.A. § 4471(a), which, by operation of 24 V.S.A. § 4472(a), allows appeal from “any
decision” of the ZBA. See In re Miller, 170 Vt. 64, 76 n.5 (1999) (addressing analogous issue).
A decision in this appeal will not be merely advisory, and will therefore be binding on the
parties and the Town with regard to the further consideration of Applicants’ pending
application.


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       This reasoning is predicated quite directly on the premise that only one
principal use or structure or use is allowed per lot in the Rural Residential
district. The court is familiar with such provisions, which are often found in
Vermont zoning ordinances;4 of course, a one-principal-use provision was a
feature of the controversy in In re Appeal of Curtis, 2006 VT 9, 179 Vt. 620
(mem.), which the parties have briefed in detail. In Plainfield’s Zoning
Regulations and Subdivision Regulations, however, there is no such express
provision.

      Neighbors claim, and the ZBA appears to have assumed, that a one-
principal-use or structure requirement is embedded, however implicitly, in
some of the definitional sections of both the Zoning Regulations and the
Subdivision Regulations. Neighbors have not cited, and the court has not
found, any other arguably applicable provisions from either set of Plainfield
regulations having a material impact on this issue.

       In the Zoning Regulations, “lot” is defined as:

       Land occupied or to be occupied by a building and its accessory
       buildings, together with the required open spaces, and having not
       less than the minimum area, frontage, width and depth required
       for a lot in the district in which such land is situated.

       Only one dwelling structure is allowed per lot, except in a Planned
       Residential Development or Planned Unit Development.

Zoning Regulations § 1.7, at 3 (emphasis added). “Accessory use or structure”
is defined as “A building or use clearly incidental or subordinate in size and
overall appearance (except for barns) to the main use or building, and
customarily in connection with, the principal building or use on the same lot.”
Id. § 1.7, at 2.

       In the Subdivision Regulations, “lot” is defined as:

       Any parcel of land in single ownership and not divided by any town
       highway, occupied or to be occupied by no more than one principal
       building and its accessory buildings and meeting the minimum
       zoning requirements for a lot in the zoning district in which such
       land is located, except for Planned Residential Developments.


4
 See, e.g., Town of Jericho Zoning Regs. (last revised 12/29/03), § 301.1 (all uses not
specifically permitted or allowed, are prohibited); § 301.2 (“no more than one principal use
shall be permitted per lot”). The undersigned was chair of the Jericho ZBA, later a combined
Development Review Board, for many years, until December 2000.


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Subdivision Regulations § 610, at 18 (emphasis in original).

       “Zoning ordinances are construed according to the general principles of
statutory construction.” In re Weeks, 167 Vt. 551, 554 (1998); see also In Re
Appeal of Jenness & Burrie, 2008 VT 117, ¶ 11 (9/5/08). “We are mindful,
however, that zoning ordinances are in derogation of common law property
rights and that ‘in construing land use regulations any uncertainty must be
decided in favor of the property owner.’” Weeks, 167 Vt. at 555 (rejecting a
claimed zoning restriction that was not expressly stated in the ordinance).

       The definitions of “lot” and “accessory use or structure” in the Zoning
Regulations do not amount to a prohibition, for zoning purposes, of more than
one principal structure or use per lot. The definition of “lot” anticipates that a
lot will have, now or in the future, “a building,” but nowhere suggests that it
may have only one principal building, and says nothing about uses per se. A
lot with two principal buildings still has “a building.” The only restriction at all
is on the number of “dwelling structures” on a lot.5 However, the number of
dwelling structures is not an issue in this case. The definition of “accessory
use or structure” uses the word “principal building,” but only in explaining the
meaning of what uses or structures are in fact accessory to such a building. It
does not say that there can only be one principal use or structure per lot.

       The words “lot” and “accessory use or structure” are not used elsewhere
in the Zoning Regulations in a manner reasonably revealing that their
definitions were intended to prohibit more than one principal use or structure
per lot. Even if these definitions could be read to include such an implied one-
principal-use or structure provision, that interpretation would be, at best,
based on ambiguous bylaw language, and the court thus would construe it in
favor of the landowner by not imposing such a limitation on development.
“Zoning limitations on the use of private property must be clearly and expressly
imposed, and should not be inferred.” Hyrcenko v. Board of Adjustment of City
of Elizabeth, 99 A.2d 430, 432 (N.J. Sup. Ct. App. Div. 1953) (citing 6
McQuillin, Municipal Corporations (3rd ed. 1949), § 20.51, at 127) (expressly
rejecting the argument that a definition of “lot” including a one-principal-
building provision could function as an affirmative prohibition of more than
one principal building per lot). See also Weeks, supra; Jenness & Burrie, supra,
2008 VT 117, ¶ 16.

       The definition of “lot” in the Subdivision Regulations is perhaps more
direct, and includes the description that a lot is land “occupied or to be

5
  Of course, one then recalls the guide to statutory construction – “increasingly considered
unreliable,” however – that if the ordinance drafters knew how to expressly state such a
limitation for one category, they could, would, and should have done so for other such
limitations. See R&G Properties, Inc. v. Column Financial, Inc., 2008 VT 113, ¶s 21, 44 (August
22, 2008)(cit. omitted).


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occupied by no more than one principal building and its accessory buildings.”
However, it says nothing about structures which are not buildings, or uses.
One thus could draw the inference, based on how “lot” is used elsewhere in the
Subdivision Regulations, that one who applies to subdivide must not be
proposing, at least concurrently with the subdivision, more than one principal
building per subdivided lot. Nowhere in the Subdivision Regulations, however,
is there an affirmatively stated prohibition against multiple principal buildings
per lot. Nor is there is any provision forcing a landowner to subdivide, if not
found in the Zoning Regulations. The Subdivision Regulations, which are
essentially procedural, and technical in nature, apply only if a subdivision is
otherwise required, or the landowner chooses to subdivide an existing parcel.

       Neighbors have framed the issue in this case as whether Applicants must
be compelled to subdivide. There is no provision of either the Zoning
Regulations or the Subdivision Regulations requiring anyone to subdivide, and
Applicants do not (apparently) want to subdivide the lot. Applicants seek to
add a second principal use and structure to their lot. The question is whether
there is an unambiguous restriction on lots with more than one principal use
or structure. There is no such restriction in either the Zoning Regulations or
the Subdivision Regulations.

      If the definition of “lot” in the Subdivision Regulations supports
Neighbors’ interpretation at all, it does so uncertainly and ambiguously. The
court must construe the ambiguity in the landowner’s favor. The Subdivision
Regulations, like the Zoning Regulations, do not prohibit Applicants from
adding a second principal use or structure on their lot.

       The parties spent the larger part of their memoranda debating whether
this case is controlled by In re Appeal of Curtis, 2006 VT 9, 179 Vt. 620 (mem.).
In Curtis, the Vermont Supreme Court concluded that a small-scale
telecommunications facility was allowed inside a church bell tower, under a
Newport zoning provision specifically preferring the placement of such facilities
on lots already containing other uses and structures. The Court concluded
that even if the disputed telecommunications facility could be considered a
second principal structure or use, it would not be barred by a general one-
principal-use or structure provision. The issue was decided based on the
principle that a more specific provision in the ordinance as a whole will control
over a more general provision, when both address the same matter and
conflict. Id. at ¶ 6. That is not the issue in this case. Additionally, according
to the opinion, Newport had an express limitation on multiple principal uses or
structures. Plainfield does not. Curtis is not dispositive of this case.




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                                FINAL ORDER

      For the foregoing reasons: Applicants’ motion for summary judgment is
GRANTED; Neighbors’ motion for summary judgment is DENIED. Subdivision
of the former Charlotte Potok lot, to accommodate a telecommunications
tower and attendant facilities as proposed by Rinker’s Telecom, is not
required by the Plainfield Zoning or Subdivision Regulations.

      This matter is returned to the Plainfield ZBA, for further proceedings in
accordance herewith.


        IT IS SO ORDERED, at Burlington, Vermont this ____ day of September,
2008.


                                            __________________________
                                            Dennis R. Pearson, Judge
                                            (Specially Assigned)




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