                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT



               In re: Appeal of State of           }
               Vermont, Department of              }
               Buildings and General Services      } Docket No. 245-10-00 Vtec
                                                   }
                                                   }

               Decision and Order on Cross-Motions for Summary Judgment

   Appellant Department of Buildings and General Services of the State of Vermont
(Department) appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town
of Windsor granting conditional use approval with conditions for the construction of a 3-bay
garage at 570 State Farm Road. The State is represented by Assistant Attorney General William
H. Rice, Esq. and Special Assistant Attorney General Stacy A. Butler, Esq.; the Town is
represented by J. Christopher Callahan, Esq. The parties each have moved for summary
judgment.

   The following facts are undisputed unless otherwise noted.

    The Department-Applicant owns property in the Resource (R-5) zoning district. A portion of
the property is surrounded by a fence and contains the Southeast State Correctional Facility. A
portion of the property is outside the fence and contained an old one-bay garage.

    Material facts are in dispute or at least have not been provided by the parties as to whether the
old one-bay garage is a pre-existing non-conforming use in this zoning district, or whether it was
built under a prior permit and, if so, what the permit authorized. Material facts are in dispute or
at least have not been provided by the parties as to what division of the State used the old one-
bay garage. If it was a non-conforming use, it may be extended or expanded under ' 2.4 of the
Zoning Regulations.

   On July 10, 2000, the Department-Applicant applied for a zoning permit to replace the old
one-bay garage with a larger 30' x 50' three-bay garage at property with a mailing address of 570
State Farm Road. The location of the property was described on the application as A Southeast
State Correctional Facility.@

   The Administrative Officer issued a A Decision of the Administrative Officer@ showing the
applicant as A State of Vermont@ and that it was for a conditional use, and referring it to the
ZBA and Planning Commission on the following grounds: A change to a prior conditional use
approval (increasing & replacing size of an existing structure) in the facility - 1 Bay to 3 Bay
garage,@ pursuant to sections 2.3 (accessory structures) and 5.13 (conditional uses) of the
Zoning Regulations. The Zoning Administrator= s decision was not appealed and therefore
became final; the issue of whether a conditional use permit was even required for this application
therefore may not be challenged at this time.

   The Planning Commission appears to have approved the site plan on August 21, 2000. The
Planning Commission= s decision was not appealed and therefore became final.

   A week later the ZBA approved the conditional use application with conditions in a written
decision dated August 28, 2000. The permit was issued by the Administrative Officer on August
30, 2000. The Department appealed from the ZBA= s August 28, 2000 decision and from the
issuance of the permit, challenging the findings made and conditions imposed as beyond the
authority of the municipality. In particular, the challenged findings1 and conditions relate to the
building= s materials, color, foundation, source of power, equipment, absence of outdoor
lighting, absence of connection to the municipal water or sewer system, intended purposes of
use, and absence of permanently-assigned personnel.

   Material facts are disputed as to whether the existing or the proposed garage is an accessory
use or structure related to the correctional facility itself or whether it is instead a use separate
from that of the correctional facility, that is, a state-owned office building and maintenance
garage known as the A Southern District Maintenance Facility.@

    The Zoning Regulations provide for the use category A Public Buildings: Correctional
Facility@ as a conditional use in the R-5 zoning district, and provide for the use category A
accessory use/structure@ as a permitted use in that district. The Zoning Regulations provide for
the use category A Public Building: Maintenance & Storage@ as a conditional use in the Rural
Residential (R-40), Medium Density Residential (R-12 and R-12H), and Roadside Business (RB)
zoning districts, and provide for the use category A accessory use/structure@ as a permitted use
in those districts. Thus, if it is accessory to the correctional facility, it is allowed in the R-5
district as either an accessory permitted use or as an amendment to the conditional use permit for
the correctional facility. If it is a separate maintenance garage, it is not a conditional use or a
permitted use in the district, although it remains possible that, as an expansion of the one-bay
garage, it may qualify for consideration as an expansion to a pre-existing non-conforming use or
as an expansion to a use which holds an erroneously-issued but final permit.

   The motions for summary judgment focus on whether some of the findings made and
conditions imposed by the ZBA are outside the scope of a municipality= s authority under 24
V.S.A. ' 4409(a)(2).

     Under 24 V.S.A. ' 4401(b)(1), A except as specifically limited herein, the municipality may
adopt zoning regulations to permit, prohibit, restrict, regulate, and determine land development .
. . .@ Subsection 4409, entitled A Limitations,@ sets out certain limitations on that broad
enabling authority. Section 4409(a)(2) states:

Unless reasonable provision is made for the location of any of the following in a [zoning] bylaw .
. . , the following uses may only be regulated with respect to size, height, bulk, yards, courts,
setbacks, density of buildings, off-street parking and loading facilities and landscaping or
screening requirements:
                                                 ***

         (2) State or community owned and operated institutions and facilities.

    We must apply the plain meaning of a statute unless its meaning is unclear. In ' 4409 the
zoning enabling act did not preempt any of the listed uses or prevent municipalities from
regulating them. (Section 4409 may be contrasted in this respect with ' 4406, which requires or
prohibits certain types of municipal regulations. For example, ' 4406(4) prevents municipalities
from excluding mobile homes except on the same basis as it excludes conventional housing.) We
note that the uses cited in ' 4409(a)2 are all uses that tend to serve regional interests beyond the
boundaries of a municipality itself, and are uses that a municipality might prefer to exclude
rather than to address or manage the potential problems or social issues inherent in hosting such
a facility. To ensure that such facilities may be located as needed anywhere in the state, ' 4409(a)
provides a sanction for municipalities that fail to make a reasonable provision to allow the listed
uses to be sited within the town. That is, either a municipality provides that such facilities may
be located somewhere reasonably within the municipality, or else the municipality may only
regulate the dimensional, parking, landscaping and screening aspects of such facilities, and may
not regulate whether or where they can be located within the municipality. The corollary of this
interpretation is that, if a municipality has made reasonable provision for uses on the list to be
located within the municipality, then the municipality is free to regulate them under the broad,
general authority of ' 4401(b)(1).

    The two clauses of ' 4409(a) are thus linked: if the municipality provides for the location of
the listed uses, then it may regulate them as it would regulate any other use. Section 4409(a) does
not provide two separate and independent regulatory authorizations, one to regulate location and
other to regulate the dimensions, parking, landscaping and screening of the listed types of
facilities. Nor does ' 4409(a)(2) provide some sort of exemption for state-owned facilities based
on the state= s sovereignty. Rather, the uses listed in ' 4409(a) are all treated the same under the
statute, whether they are private for-profit, nonprofit, religious, municipal or state uses. Of
course, the legislature would be free to add an exemption for state-owned buildings, as the
authority for municipalities to zone derives entirely from state statute. But it has not done so in '
4409(a)(2).

   The Vermont cases discussed by the parties do not require any contrary result. They all
appear to have been decided under zoning regulations which did not make reasonable provision
for the location of the listed facilities, and so did not trigger the arm of the statute at issue in the
present case, and did not discuss that issue. Morse v. Vermont Div. of State Bldgs., 136 Vt. 253
(1978) restricted the Town to regulating only the listed aspects of the facility under ' 4409(a), but
the decision does not suggest that the Town= s zoning regulations in effect in 1977 made >
reasonable provision for= the state residential treatment facility at issue in that case. Similarly, in
Vermont Div. of State Bldgs. v. Town of Castleton Bd. of Adjustment, 138 Vt. 250, 258 (1980)
the zoning regulation did not purport to make any provision for the location of such state
facilities, but by its terms only regulated the listed aspects of such facilities, and in any event, the
dispute in that case was regarding the appropriate setback, which is within the list allowed to be
regulated in any event. Recently, in City of S. Burlington v. Vermont Dept. of Corrections, 171
Vt. 587(2000), the Court held that the State is bound by any conditions in any local permits it did
not appeal, even if the municipal body had lacked jurisdiction to issue those local permits at the
time, and did not explore the issue posed by the present case. Also see, Appeal of State of
Vermont, Dept. of Buildings and General Services, Docket No. 269-11-00 Vtec (Vt. Envtl. Ct.,
Nov. 19, 2001) (town had not made specific provision for the location of state facilities in its
zoning bylaw, therefore the aspects of the correctional facility which the town may regulate are
the listed physical and external attributes of the facility, not its internal use or occupancy. See, In
Re: Northwest State Correctional Facility, Docket No. S 377-94 Fc (Franklin Superior Ct.,
March 15, 1995).

   Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the
Town= s Motion for Summary Judgment is GRANTED and the Department= s Motion for
Summary Judgment is DENIED. As the Town of Windsor has made reasonable provision for the
location of state-owned or community-owned and operated institutions and facilities in its zoning
bylaw, it may regulate aspects of such facilities beyond those listed in ' 4409(a).

    We will hold a brief telephone conference with the parties on Monday, February 11, 2002 at
9:30 a.m. to determine whether any issues remain for determination in this appeal. The parties
should be prepared to discuss the following issues in the conference. We note that the findings
that constitute the Department-Applicant= s own description of its project easily could be
restated in language making it clear that they are not conditions being imposed on the
Department. Of the six actual conditions in the ZBA= s permit, numbered 2 through 7, Condition
3, that the building be built to Department of Labor and Industry standards, does not appear to be
authorized by the Town= s own zoning regulations (an issue separate from its validity under '
4409(a)). Conditions 2, 6 and 7 merely state the law; that is, they contain the standard
requirements of the zoning regulations that the project be built as proposed by the applicant, that
any sign proposed in the future for the facility will require approval under the sign regulations,
and that the permit will expire if construction is not begun in a year. With those out of the way, it
appears that the remaining two conditions (relating to landscaping and to avoiding the need for
screening of outdoor lighting if proposed for the future) may fall within the authority of the
Town even under the Department-Applicant= s view of ' 4409(a).



   Done at Barre, Vermont, this 5th day of February, 2002.



___________________
Merideth Wright
Environmental Judge



                                              Footnotes
1
    The challenged elements found in the ‘findings’ section of the decision rather than in the
actual ‘conditions’ section of the decision all seem to derive from the Department-Applicant’s
own description of its project, and are not actually conditions imposed on the project by the
ZBA.
2
     Public utility power generating plants and transmission lines, state and community
institutions and facilities, schools, churches, hospitals, regional solid waste management facilities
and hazardous waste management facilities.
