Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-080

                                     SEPTEMBER TERM, 2013

 In re Leonard & Sayour Permitted Use                  }    APPEALED FROM:
 Zoning Permit                                         }
                                                       }    Superior Court,
                                                       }    Environmental Division
                                                       }
                                                       }
                                                       }    DOCKET NO. 118-8-12 Vtec

                                                            Trial Judge: Thomas S. Durkin

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

        Neighbor appeals an order of the Environmental Division, which upheld a zoning permit
that allowed applicants to construct a barn used to store a tractor for maintaining property in the
Town of Manchester’s Forest and Recreation Zoning District. Neighbor argues that the barn
does not fit within the uses allowed in the Forest and Recreation District because it is not an
accessory structure to agricultural use. We affirm.

        In May 2012, applicants applied for a zoning permit, requesting permission to relocate a
historic barn onto their land in the Forest and Recreation Zoning District for the purpose of
storing a tractor as “equipment appropriate and necessary for use in maintaining forest and rec
land—not for residential scale equipment or storage or use.” The Town zoning administrator
approved the application, and neighbor appealed that decision to the Town’s Development
Review Board (DRB). The DRB affirmed the zoning administrator’s decision to grant the
permit.

        Neighbor appealed to the Environmental Division. The question submitted was whether
a permit should issue for relocation of a historic barn in the Forest and Recreation Zoning
District given the Town of Manchester’s zoning requirements. The Town’s zoning ordinance
includes ten permitted uses in the Forest and Recreation Zoning District. The particular
permitted use at issue in this case is as follows: “[a]gricultural uses, including: maple sugaring,
pasturage of livestock, crop raising, and building (except dwellings), accessory to and necessary
for such agricultural uses.” The specific question before the Environmental Division was
whether the barn was accessory to an agricultural use. The court conducted a de novo hearing
and made a site visit. At the close of the hearing, the court made oral findings on the record.
The court concluded that in the context of this case, the applicants’ regular haying of their field
so that it does not become grown over and unusable for crops, is an agricultural use as defined in
the Town’s ordinance, and that the barn used to store the tractor was as an accessory to that use.
The court accordingly affirmed the DRB’s decision. It confirmed its decision in a written
judgment. Neighbor timely appealed.
        When a party challenges the Environmental Division’s interpretation of a town
ordinance, this Court applies a limited standard of review and “will overturn the environmental
court’s construction of a zoning ordinance only if it is clearly erroneous, arbitrary, or
capricious.” In re Nott, 174 Vt. 552, 553 (2002) (mem.). In construing the language of a zoning
ordinance, we use the same rules of construction as for a statute, applying the plain and ordinary
meaning of words and giving effect to every part of the ordinance. Id. To the extent there is
ambiguity in a land use regulation it is construed in favor of the landowner because the
regulation is in derogation of common law property rights. In re Miserocchi, 170 Vt. 320, 324
(2000).

        Likewise, we defer to the Environmental Division’s factual findings, and will not disturb
those findings unless “viewing the evidence most favorably to the prevailing party, the findings
are clearly erroneous.” In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, ¶ 9, 186 Vt. 590
(mem.). The findings will not be disturbed “as long as there is some credible evidence to support
a finding . . . even if it is contradicted by substantial evidence.” Id. (quotation omitted).

         On appeal, neighbor essentially argues that the environmental court’s finding that
applicant’s use of the property was agricultural was clearly erroneous. In particular, neighbor
argues that, at most, the evidence shows that applicants occasionally mowed their open land and
left the cuttings to deteriorate in the grass. They did not bale the cuttings, sell the hay, cultivate
the soil, produce crops, raise livestock, or otherwise engage in or derive income from agricultural
activities on the property. In fact, neighbor argues that the growth applicant mowed consisted of
wildflowers and brush, not hay. To the extent the Environmental Division’s conclusion that the
tractor was used for agricultural purposes, and that the barn was accordingly a permitted
accessory structure, was based on a finding that applicant hayed the field, neighbor argues that
this essential finding was unsupported by the evidence.

        Neighbor also argues that the environmental court applied the wrong legal standard in
determining the agricultural nature of applicant’s use. This legal argument largely overlaps with
the evidentiary argument, since it rests on the premise that the environmental court concluded
that simply mowing an open field constitutes “haying” and is therefore an agricultural use. As
set forth more fully below, this argument rests on an overly narrow understanding of the
environmental court’s findings and conclusions.

        We conclude that the environmental court’s findings of fact are supported by substantial
evidence, that its understanding of the law was correct, and that it did not abuse its discretion in
applying the facts to the law. Although much of the briefing in this case revolves around the
definition of “haying,” we need not actually define that term; the term “haying” is not used in the
Town ordinance, and its definition is not determinative of the issue before us. The questions
before us are: (1) whether the environmental court’s findings concerning applicant’s use of the
tractor on the property are supported by the evidence; (2) whether the environmental court
abused its discretion in concluding that applicants’ use of the tractor amounted to an
“agricultural” use under the Town ordinance; and (3) whether the environmental court’s
conclusion that the barn is an accessory building to that agricultural use is supported by the
evidence and within the court’s discretion. We consider each in turn.

        First, we consider the environmental court’s factfinding. The court asserted that
agricultural use includes regularly haying “so that [the] field doesn’t get grown up such that it
can no longer be used for an agricultural purpose, whatever that purpose may be.” Applying this

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definition, the environmental court found that the haying of the fields on the subject property was
an agricultural use. The court did not conclude that the mere act of mowing the field was an
agricultural use in and of itself but, rather, considered the purpose of the mowing—maintaining
the field’s usability for agricultural purposes. The court’s understanding that applicants regularly
mowed the field was unquestionably supported by testimony that they had the field cut three
times in 2012. Its implicit finding that they did so for the purpose of preserving the agricultural
usability of the property was likewise supported by testimony that applicants had finished their
home within the past year and a half and were considering other activities on the property. In
particular, applicants presented testimony that they were contemplating fruit trees and crops—
possibly corn—on the property, were considering maple sugaring on the property, and that they
had sent soil samples to the University of Vermont for testing to determine the soil value and
what crops could be grown on the property. Given this evidence, the environmental court’s
finding that applicants were mowing the field to maintain its usability for agricultural purposes
was not clearly erroneous.

         Given the court’s understanding of applicants’ activities, its conclusion that their efforts
to keep the field cut so that the land would be usable for agricultural purposes was not an abuse
of discretion. The ordinance includes a nonexclusive list of activities that are permitted
agricultural uses, including maple sugaring, pasturing and crop raising. Although applicants had
not yet determined which of these uses they intended to pursue, given the environmental court’s
findings that they were keeping the field cut to facilitate future agricultural use, coupled with
testimony that applicants were evaluating which crops could grow in the field, the court did not
abuse its discretion in concluding that applicants’ regular mowing of the field was, on the record
of this case, an agricultural activity. Neighbor’s argument that the list of permitted agricultural
activities in the ordinance is exclusive is not consistent with the ordinance’s language, which
prefaces those uses with “including.” The word “including” indicates that what follows is a
nonexclusive list of examples of agricultural uses. Moreover, neighbor’s argument ignores the
environmental court’s understanding that the field-cutting in this case was for the purpose of
facilitating future agricultural activity such as the growing of crops. We need not determine
given the findings in this case whether mowing a field in and of itself constitutes an agricultural
use under the ordinance; in this case the environmental court tied the mowing to applicant’s goal
of preserving the field for planned agricultural use, and we uphold its decision on that basis.

        Finally, the environmental court’s conclusion that the barn was an accessory structure to
the agricultural use—maintaining the land in a state that could support agricultural activities—is
supported by the evidence as well as common sense. As the court explained, “[W]hen you get a

         The Town ordinance includes a definition section which reads:

                Agricultural Use: The term “agricultural purpose” shall mean
               agriculture, farming, dairying, pasturage, and animal and poultry
               husbandry. The term shall not include the slaughtering of animals
               or poultry for commercial purposes except such as are grown or
               raised on the premises, nor shall it include the raising and keeping
               of animals or poultry for commercial purposes on lots less than 5
               acres.

       Although the Environmental Division did not expressly rely on this definition, its
conclusion is consistent with the definition.
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tractor to do that work you should have a place to store it, and if you don’t have the place to store
it, your tractor is not going to be around for very long.”

       Neighbor points to definitions of “agricultural land,” 32 V.S.A. § 3752(1), and “farming,”
10 V.S.A. § 6001(22), in the Vermont Statutes and argues that the Environmental Division
should have looked to these definitions as guidance in defining agricultural use in the Town
ordinance. To the extent that these definitions in unrelated statutes contemplate the growing of
crops as a component of agriculture, the Environmental Division’s understanding—that
maintaining and preparing the land to that end is also an agricultural activity—is not inconsistent
with these other statutes.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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