2008 VT 100


In re Pierce Subdivision
Application (2007-121)
 
2008 VT 100
 
[Filed 01-Aug-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 100

 

No. 2007-121

 

In re Pierce Subdivision
  Application 


Supreme Court


(Robert Schumacher, Appellant)


 


 


On Appeal from


     


Environmental Court


 


 


 


January Term, 2008


 


 


Thomas
  S. Durkin, J.
 
Christina A. Jensen of Lisman, Webster & Leckerling,
  P.C., Burlington,
  for 
  Appellant.
 
David J. Shlansky
  of Shlansky & Co., LLP, Vergennes, for Appellee.


 

PRESENT:  Reiber, C.J.,
Johnson, Skoglund and Burgess, JJ., and Kupersmith, D.J., 
           
        Specially Assigned
 
 
¶ 1.            
BURGESS, J.   Neighbor appeals the Environmental
Court’s approval of applicant’s proposed Planned Residential Development (PRD)
adjoining his property in Ferrisburgh, Vermont. 
Under the Ferrisburgh Zoning Bylaws, a qualified PRD
that proposes cluster housing and preservation of open space may be authorized
by the Planning Commission by waiver of the standard rules governing
single-house lot development.  On appeal, neighbor claims that the court
erred by concluding that: (1) the proposed subdivision meets the definition of
a PRD as specified in the bylaws; (2) the project satisfies the space and
density limitations under the bylaws; (3) the bylaws supply adequate standards to
guide the court’s discretion; and (4) the project complies with the
minimum-lot-size requirements of the bylaws.  We affirm the project’s
approval.[1]
¶ 2.            
Applicant proposed to subdivide a 113-acre portion of its property into
a twenty-one lot PRD, with an additional lot reserved for common space. 
The bylaws define a PRD as “[a]n area of land to be developed as a single
entity for a number of dwelling units, the plan for which does not conform to
the zoning regulations.”  Zoning Bylaws for the Town of Ferrisburgh § 2.2 (as amended, March 6, 2001) [hereinafter
Zoning Bylaws].  The sizes of the twenty-two lots range from under half an
acre to 25.9 acres.  These twenty-two lots are accessed by Pierce Woods
Road, a twenty-foot-wide roadway within a sixty-foot-wide access
easement.  
¶ 3.            
Applicant’s 113-acre parcel has varied terrain containing woods,
wetlands, Lewis Creek, a stream, and steep slopes.  The proposal creates a
fifty-foot buffer along Lewis Creek and the stream.  Applicant proposes to
conserve seventy-six percent of the land in the PRD as open space through
perpetual easements once the PRD is approved.  
¶ 4.            
The parcel encompasses three different zoning districts: Rural Residential
(RR-2), Rural Agricultural (RA-5), and Conservation (Con-25).  Each
district has a minimum lot size: RR-2 requires two acres, RA-5 five acres, and
Con-25 twenty-five acres.  Id. §§ 4.2(D), 4.2(C), 4.3(C). 
Because zoning regulations for these districts would effectively prevent
applicant from clustering houses on the parcel, applicant requested six waivers
of the district zoning regulations to reduce the required minimum lot size and
acreage per dwelling, along with frontage, width, depth, and setback requirements. 

¶ 5.            
The Planning Commission approved the proposed PRD.  Neighbor
appealed that decision to the Environmental Court, complaining, in pertinent
part, that the development’s compliance with the bylaw definition of PRD could
not be determined from applicant’s plans, that the Commission improperly
included the untraveled portion of the right-of-way as part of the lands
subject to subdivision for purposes of calculating allowable density, that the
bylaws delegated standardless discretion to the
Commission to grant waivers of the district zoning regulations, and that the
PRD failed to meet minimum lot size requirements.  The Environmental Court
rejected neighbor’s arguments, affirming the approval of the application. 
This appeal followed. 
I.
¶ 6.            
Neighbor first contends that the court’s conclusion that the project
satisfies the definition of a PRD rests upon an erroneous interpretation of
Bylaw § 2.2, and, consequently, that the court’s decision lacks necessary
findings.  Section 2.2 defines PRD as an
“allowed method of land development” wherein the number of dwelling units
“shall not exceed the number which could be permitted if the land were
subdivided into lots in conformance with the zoning regulations.”  Zoning Bylaws
§ 2.2 (emphasis added).  To determine whether the proposed PRD was
consistent with this definition, the court used a straightforward mathematical
calculation—dividing total acreage of the parcel by minimum lot size as
dictated by the three districts involved—to determine how many dwellings “could
be permitted” under the bylaws.
¶ 7.            
Neighbor argues against this determination by simple long division,
positing that slope, wetlands and stream characteristics of the parcel
“potentially” limit the number of units available to a conforming subdivision,
regardless of its aggregate acreage.  Neighbor maintains that without a
more detailed evaluation of the property vis-à-vis a conforming subdivision
plan by which to determine the number of non-PRD units that could actually be
built on the parcel, the court’s conclusion of compliance with § 2.2 is
unsupported by necessary findings.  Neighbor characterized the § 2.2
definition as a “hurdle” arising at the outset of a PRD application, overcome only
by the applicant engaging in a process before the Planning Commission to
achieve approval for an identified number of units in a conventional
subdivision plan.  
¶ 8.            
We will uphold the Environmental Court’s construction of a zoning
ordinance “if it is rationally derived from a correct
interpretation of the law and not clearly erroneous, arbitrary, or capricious.” 
In re Bennington Sch. Inc., 2004 VT 6, ¶ 11, 176 Vt. 584, 845 A.2d
332 (mem.).   Our interpretation is
generally bound by the plain meaning of the words in the ordinance,  In re Nott, 174 Vt. 552, 553, 811 A.2d 210, 211
(2002) (mem.), unless the express language leads to
an irrational result.  See State v. Forcier,
162 Vt. 71, 75, 643 A.2d 1200, 1202 (1994) (recognizing that given a statute’s
express terms, we “[n]onetheless . . . avoid
interpretations that would lead to an unjust, unreasonable and absurd
consequence” (quotation omitted)).   
¶ 9.            
Neighbor’s construction of the bylaw is unreasonably burdensome and is
not plainly mandated by the language.  Since the density inquiry is
triggered by an application for a PRD, rather than for a conforming
development, the conforming subdivision contemplated by §§ 2.2 and
5.21(C)(2) can be only hypothetical.  Nevertheless, neighbor reads both
sections to require successive permit applications and proceedings, the first
one for an imaginary development and the second one for the real
proposal.  If such a burden on the landowner was in place, we might
question its reasonableness, Forcier, 162 Vt.
at 75, 643 A.2d at 1202, but its drafters did not write the bylaw to require an
applicant to obtain permission to build an unwanted subdivision in order to
seek approval for a PRD.  As § 2.2 does not plainly intend dual
applications, it could, as the Environmental Court reasoned, require only an
estimate of allowable density, rather than mandating full scale submission of
an unwanted conventional subdivision plan for approval as a precondition to
applying for the intended PRD development.  That would be if the definition
controlled the application at all.
¶ 10.        
It does not.  Neighbor’s reliance on § 2.2—a definitional
section—to mandate nondiscretionary determination of allowed density is misplaced. 
While § 2.2 generally describes a PRD as an authorized unconventional
development that may not exceed the number of units allowed to a conventional
subdivision, the actual determination of allowed units is explicitly vested to
the discretion of the Planning Commission under § 5.21(C)(2).  Section
5.21(C) sets forth the “General Standards for Review” of PRD proposals,
including the condition that before approving a PRD application, the
Environmental Court, acting in the Planning Commission’s stead, must find that:

The overall
density of the project does not exceed the number of dwelling units which could
be permitted, in the Planning Commission’s judgment, if the land
(excluding the area within the boundaries of any proposed road) were subdivided
into lots in accordance with the district regulations and other relevant
provisions of these bylaws. 
 
Zoning Bylaws §
5.21(C)(2) (emphasis added).  According to the plain language of the
bylaw, § 2.2 summarizes what may qualify as a PRD, but § 5.21(C)(2)
governs the actual determination of baseline density necessary for PRD
approval.  
¶ 11.        
Any hurdle to the applicant in this regard is specifically imposed by §
5.21(C)(2), and not by the § 2.2 definition.  The density determination is
left expressly a matter of “judgment,” rather than a matter of such certainty
as requiring the more exact finding following a fully documented hypothetical
application like that envisioned by neighbor.  The Environmental Court’s
finding as to the number of units allowed will not be disturbed “if it is rationally derived from a correct interpretation
of the law and not clearly erroneous, arbitrary, or capricious.”  Bennington
Sch. Inc., 2004 VT 6, ¶ 11.
¶ 12.        
We disagree with neighbor that the court’s summary calculation is
insufficient for either the § 2.2 definition or the § 5.21(C)(2) compliance
determination.  The bylaws require the court to
consider the number of units which, in its judgment, could be permitted under
the regulations.  The court did so and explained its rationale based on
the undisputed estimates by applicant’s engineer of the acreage in each of the
districts involved by the project, as offered to prove that the PRD proposed no
more lots than could be achieved by a conventional subdivision conforming to
all applicable district regulations.  The evidence supported this
rationale, and the court’s conclusion cannot be overcome by neighbor’s
speculation that the wetlands, slopes and stream within the parcel could,
without more, “potentially” limit the number of units or lots that could have
been approved for a conventional subdivision.
¶ 13.        
The court’s use of a summary calculation to determine the number of
units ordinarily permitted on the parcel was neither clearly erroneous nor
whimsical.  Absent a showing by neighbor that the calculation of permitted
units must be incorrect, the court’s arrival at its number using a general
calculation based on the evidence is a reasonable exercise of its
discretion.  The Environmental Court’s interpretation of both bylaws was
reasonable, and its calculation was no abuse of discretion under either
section.  
II.
¶ 14.        
Neighbor asserts that the court further erred in construing
§ 5.21(C)(2) to include only the travelled portion of the right-of-way as
the “area within the boundaries of any proposed road” to be excluded from the
acreage considered for density limits under the bylaw.  Zoning Bylaw §
5.21(C)(2).  The court excluded the twenty-foot wide strip of travelled
roadway from its calculation of developable area, but not the entire
sixty-foot-wide right-of-way.  The bylaws do not define the term “road,”
so the court turned to the common understanding of the term to mean the visible
and used portion of the roadway, rather than the full easement boundaries.
 The difference is crucial, as a calculation excluding the entire
right-of-way, as proposed by neighbor, would result in the denial of the
proposal.    
¶ 15.        
We have not specifically addressed whether undeveloped sections of a
right-of-way bordering a traveled portion of blacktop are part of the “road” or
are excluded from adjacent land, but we have held that a “well-traveled
roadway cannot be considered part of a ‘lot.’ “  In re Bailey,
2005 VT 38A, ¶ 12, 178 Vt. 614, 883 A.2d 765 (mem.)
(emphasis added).  The few Vermont cases dealing with the relationship
between roadways and adjacent lots at first appear to also use the broader
terms “right-of-way” and “easement” interchangeably.  See, e.g., id.
(explaining that this “Court viewed the right-of-way and the lot as separate
physical entities and was unwilling to see a true right-of-way as part of a
‘lot’ “); Wilcox v. Vill. of Manchester Zoning Bd.
of Adjustment, 159 Vt. 193, 197-98, 616 A.2d 1137, 1139-40 (1992) (equating
“rights-of-way” with “easements,” and considering how other jurisdictions dealt
with a “right-of-way” relied upon by owner to achieve minimum lot size). 
However, whether called an easement, right-of-way, or road, we look to the
actual “location and function” of the real way, rather than its most expansive,
or formal, boundary in determining whether to treat the area as separate from a
lot.  Bailey, 2005 VT 38A, ¶ 11 (quotation omitted).  As
observed in Wilcox, “a right-of-way could be a well-travelled road, or
simply lines on a plan that pose few practical barriers to the enjoyment of the
property as a single parcel.”  159 Vt. at 198, 616 A.2d at 1140.  
¶ 16.        
Furthermore, we have explained that the mere width of the easement,
rather than its actual travelled portion, did not “automatically” separate
commonly owned adjoining land in Wilcox.  Id. 
 Land traversed by a brook, “although not easily developed, is included in
the minimum lot size requirement” but “land under a road is already developed,”
and so cannot be included in the owner’s lot size calculation.  Bailey,
2005 VT 38A, ¶ 17; see also Loveladies
Prop. Owners Ass’n v. Barnegat City Serv. Co.,
159 A.2d 417, 422 (N.J. Super. Ct. App. Div. 1960) (“[T]he determination . . .
of which area is a lot and which a street . . . depends not on the way title is
held, or platted areas apparently bounded on a filed map, but rather on the
function which each separate area is to serve as observable by inspection of
the plat.”).
¶ 17.        
“Ordinarily when we review the Environmental Court’s interpretation of a
zoning ordinance, our review is deferential, and we accept the court’s
construction unless it is clearly erroneous, arbitrary, or capricious.”  Bailey,
2005 VT 38A, ¶ 9.  Absent a regulatory definition or apparent purpose to
the contrary, the Environmental Court’s interpretation of the word “road” to
mean only the twenty-foot traveled portion of the easement was not inconsistent
with the bylaw or at odds with our precedent.  As noted by the court, if Ferrisburgh intended to exclude entire easements or
rights-of-way from the calculation of lot area, instead of just the area within
the boundaries of any proposed road, the bylaw could have said so. 
Moreover, the court was obligated to resolve ambiguity in the bylaw in favor of
applicant.  See In re Vitale, 151 Vt. 580, 584, 563 A.2d 613, 616
(1989) (reiterating that “it is a well-established rule in this state that in
construing land-use regulations any uncertainty must be decided in favor of the
property owner”).  Given the lack of regulatory definition, and the focus
in Bailey and Wilcox on the actual functional area of the access
easements, we cannot conclude that the court was clearly erroneous when it read
the bylaws to implicate only the travelled portion of Pierce Woods Road, and
allotted the open-space portion of the easement as part of the surrounding
lots. 
III.
¶ 18.        
We now turn to neighbor’s argument that § 5.21(C) and 5.21(D) fail to
provide sufficient standards to guide the Environmental Court’s exercise of
discretion when evaluating the PRD.  Neighbor contends that the bylaws are
so vague that they do not inform applicants, courts or neighbors about what is
permitted and what is prohibited.  Neighbor further claims that adjoining
landowners are denied due process and equal protection when challenging
decisions of the Planning Commission because of the absence of standards upon
which the court can review decisions. 
¶ 19.        
In the context of land-use regulation, our approach to complaints of standardless, arbitrary discretion focuses on the criteria
for due process and equal protection.  See In re Handy, 171 Vt.
336, 348-49, 764 A.2d 1226, 1238 (2000) (“[T]he power to grant or refuse zoning
permits without standards denies applicants equal protection of the laws; and .
. . due process of law.”); In re Miserocchi,
170 Vt. 320, 325, 749 A.2d 607, 611 (2000) (“[s]uch
ad hoc decision-making denies . . . due process of law”); Town of Westford
v. Kilburn, 131 Vt. 120, 124, 300 A.2d 523, 526 (1973) (reasoning that
absent standards, “the door is opened to the exercise of [] discretion in an
arbitrary or discriminatory fashion”).  
¶ 20.        
Zoning ordinances must “provide . . .
appropriate conditions and safeguards” to guide the decisionmaker. 
Kilburn, 131 Vt. at 124, 300 A.2d at 526 (quotation omitted).
 While we will invalidate ordinances that “fail[] to provide adequate
guidance” and therefore lead to “unbridled discrimination,” we will uphold standards even if they are general
and will look to the entire ordinance, not just the challenged subsection, to
determine the standard to be applied.  Id. at 125, 300 A.2d at 526;
see also Handy, 171 Vt. at 348-49, 764 A.2d at 1238 (citing Vincent
v. State Ret. Bd., 148 Vt. 531, 535, 536 A.2d 925, 928
(1987); State v. Chambers, 144 Vt. 234, 239, 477 A.2d 110, 112
(1984)).  
¶ 21.        
Neighbor specifically contends that the bylaw provides no standards for
the Planning Commission to approve or deny the six waivers requested by applicant
as part of the PRD-approval process.  While it is true that § 5.21
provides no concrete standards to consider each individual modification to the
zoning regulations, neighbor’s argument misunderstands the nature of a
PRD.  The Legislature authorized PRDs to “encourage flexibility of design and development of land in
such a manner as to promote the most appropriate use of land, . . . and to
preserve the natural and scenic qualities of the open lands of this
state.”  24 V.S.A. § 4407(3) (repealed 2004).[2] 
In order to achieve these goals, particularly the encouragement of flexible
planning, “[t]he modification of zoning regulations by the planning
commission . . . may be permitted simultaneously with approval of a subdivision
plan.”  Id.  Such modifications, or “waivers,” are part of the
process of approving a PRD—a type of concentrated housing development permitted
in exchange for open space which, by its very nature, does not fit the
traditional zoning scheme.  The consideration of these waivers, therefore,
is folded into the Commission’s analysis of the PRD itself.  The proper
inquiry is thus whether the bylaw provides the Commission with sufficient
overall standards to grant a PRD permit, and whether the waivers granted comply
with these standards.  
¶ 22.        
Subsections (C) and (D) provide standards to guide the Commission’s
approval of a PRD.  Some of the standards in subsection (C) are general: 
  1.  The PRD is consistent with the municipal plan.
   . . . .
 
4.  The PRD is an effective and unified treatment of the development
possibilities of the site and the development plan makes appropriate provision
for preservation of streams, and stream banks, steep slopes, wet areas and
unique natural and manmade features.
 
5.  The development plan is proposed over a reasonable period of time in
order that adequate municipal facilities and services may be provided. 
  . . . .

 
8.  Any open space land will be evaluated as to its agricultural, forestry
and ecological quality.
 
Zoning Bylaw §
5.21(C).  By their terms, these tend to be overall objectives and
recommendations, rather than specific standards to be measured and met. 
¶ 23.        
Other provisions of § 5.21(C) and (D), however, contain more specific
standards for the approval of a PRD.  Section 5.21(C) requires that:
 
2.  The overall density of the project does not exceed the number of
dwelling units which could be permitted, in the Planning Commission’s judgment,
if the land (excluding the area within the boundaries of any proposed road)
were subdivided into lots in accordance with the district regulations and other
relevant provisions of these bylaws.
 
3.  The uses proposed for the project are residential; dwelling units may
be of varied types, including one-family, two-family or multifamily
construction.
  . . . . 
 
7.  Any modification of the zoning regulations approved under this section
shall be specifically set forth in terms of standards and criteria for the
design, bulk and spacing of buildings and the sizes of lots and open spaces
which shall be noted on or appended to the application.
 
Id. §
5.21(C).  In addition, § 5.21(D) requires that:
 
 
1.  District regulations on height and spacing between main buildings
shall be met.
 
2.  To ensure adequate privacy for existing or proposed uses adjacent to
the PRD, structures on the perimeter of the PRD shall be set back 50 feet and
screening may be required.
 
3.  Adequate water supply and sewage disposal facilities shall be
provided.
 
4.  Each dwelling unit shall have a minimum two acre lot exclusively
associated with it and must comply with the specific standards set forth in
Section 4.1 and 4.2 of these bylaws, excluding the lot depth requirement.
 
5.  The minimum acreage for a PRD shall be 25 acres and a minimum of 60%
of the total parcel shall remain undeveloped.
 
Id. §
5.21(D).  
 
¶ 24.        
Thus, while some of the bylaws’ objectives are general, other provisions
impose specific limits to guide and check the Commission’s discretion. 
These requirements provide restrictions on the type of units which may be
allowed, the percentage of open space required in a PRD, and the timing and
form of applications.  As stated in Handy, we consider the entire
ordinance when evaluating whether it provides sufficient guidance to a
decision-making body.  171 Vt. at 348-49, 764 A.2d at 1238.  By
providing both general and specific standards for PRD review, the bylaw strikes
an appropriate balance between providing guidance to the Commission and avoiding
inflexible requirements which would defeat the creativity and flexibility
required to effectuate the goals of the PRD alternative to traditional
development.  The list of particular requirements set forth in § 5.21(C)
and (D) provides sufficient standards for the Commission, and for the court
upon review, to evaluate a proposed project’s compliance with the bylaws while
avoiding, as the Environmental Court put it, the “inflexibility that Kilburn
and Handy cautioned about.”  
¶ 25.        
All six waivers approved as part of the application—lot-size and
acreage-per-dwelling minimums, lot frontage, width, and depth requirements, and
setback rules—comply with the standards listed in § 5.21(C) and (D).  In
accordance with § 5.21(C)(7), the waivers were
specific, establishing alternative “standards and criteria” for lot sizes,
frontage, width, and depth requirements, and setbacks for the units in the PRD.[3]  The requested setback waivers did
not violate § 5.21(D)(2)’s requirement that structures
be set back fifty feet from the perimeter of the PRD.  The waivers to
minimum-lot-size and acreage-per-dwelling requirements enabled applicant to
cluster dwellings in the PRD while also complying with the requirements that
“[e]ach dwelling unit [] have a minimum two acre lot exclusively
associated with it,” id. § 5.21(D)(4), and that the “overall
density of the project [] not exceed the number of dwelling units which could
be permitted . . . if the land . . . were subdivided . . . in accordance with
the district regulations,” id. § 5.21(C)(2).  The lot
frontage, width, and depth waivers were similarly in accordance with the
standards established by § 5.21(C) and (D).  These waivers enabled the
flexibility of design needed for the construction of a PRD, yet complied in
full with the specific requirements established in § 5.21(C) and (D).  As
such, we affirm the court’s approval of these waivers.  
IV.
¶ 26.        
Neighbor’s final argument is that the court erred in concluding that the
project complied with § 5.21(D)(4), which requires
that:
Each dwelling
unit shall have a minimum two acre lot exclusively associated with it and must
comply with the specific standards set forth in Section 4.1 and 4.2 of these
Bylaws, excluding the lot depth requirement.
 
Id. §
5.21(D)(4).  Sections 4.1 and 4.2, respectively, specify dimensional
standards in the RR-2 and RA-5 districts for maximum height and lot coverage,
together with minimum lot frontage, width, setbacks and lot size. 
Neighbor is particularly concerned with the subsection’s declared minimum lot
size and minimum acreage for each dwelling unit of two acres in RR-2, and five
acres in RA-5.  Id. §§ 4.1(D)(1) and (2), 4.2(C)(1) and
(2).  Many of the unit lots approved by the Commission were significantly
smaller than the two and five acres ostensibly required by the bylaws.  
¶ 27.        
The Environmental Court declined to construe the section to require the
units themselves to be located on two- and five-acre lots.  Instead, the
court read the rule to command that there had to be at least the specified
number of acres, within the particular district at large, corresponding to each
proposed unit in that district.  Otherwise, reasoned the court, two- and
five-acre building lots would defeat the entire purpose of the PRD, which is to
promote cluster housing and open land.  Neighbor contends that the court’s
interpretation was contrary to the plain meaning of the bylaw imposing minimum
house-lot areas.
¶ 28.        
As discussed above, we ordinarily read
bylaws according to their plain language, “giving effect to the whole and every
part of the ordinance.”  In re Stowe Club Highlands, 164 Vt. 272,
279, 668 A.2d 1271, 1276 (1995).  The
overarching objective of the Court in matters of statutory construction,
however, “is to give effect to the legislative intent.”  Lubinsky v. Fair Haven Zoning Bd., 148 Vt.
47, 49, 527 A.2d 227, 228 (1987); see also In re Vt. Nat’l Bank, 157 Vt.
306, 312, 597 A.2d 317, 320 (1991) (“In construing a
zoning ordinance, we use the same rules as in the construction of a statute.”).
 This paramount “concern is so fundamental that, although application
according to the plain language is preferred when possible, the letter of a
statute or its literal sense must yield where it conflicts with legislative
purpose.”  Lubinsky, 148 Vt. at 49, 527
A.2d at 228.  
¶ 29.        
Here, § 5.21(D)(4)’s reference to the district zoning requirements
established by §§ 4.1 and 4.2 would appear to require compliance with
conventional zoning lot size, but the definition of PRD along with the balance
of § 5.21, including the introductory language of subsection (D)(4), indicates
the opposite.  Section 2.2 defines a PRD as a plan that “does not
correspond . . . to the zoning regulations established for the district,” while
§ 5.21 establishes standards for evaluating whether the proposed nonconformity
is acceptable enough for the Planning Commission to modify the district’s
zoning rules “simultaneously with approval of a site plan.”  Zoning
Bylaws §§ 2.2, 5.21 (emphasis added).   The mandate of § 5.21(D)(4),
that “[e]ach dwelling unit shall have a minimum two acre lot exclusively
associated with it,” would be unnecessary if § 4.1 was still to require a
minimum unit lot of two acres in RR-2 and similarly irrelevant if companion §
4.2 independently required locating units on five acre lots in RA-5. 
Reading the bylaws to require units to sit upon two- or five-acre lots would
confound the primary objective of the PRD authorization to allow cluster
housing and would contradict the bylaws’ allowance of clustered units so long
as there are at least two acres of land specifically “associated” with each
unit in the project as a whole. 
¶ 30.        
Neighbor’s insistence on a literal construction would frustrate
the purpose of the PRD ordinance by outlawing the trade-off of housing
clustered on undersized lots in exchange for preservation of large tracts of
open lands and forests.  If each unit in the PRD had to be situated on a
lot of not less than two or five acres to meet the size mandates of §§ 4.1 and
4.2 as purportedly required by § 5.21(D)(4), a PRD in Ferrisburgh
would be no different than a conventional subdivision consuming all of the land
in sprawling house lots.  The Environmental Court correctly recognized
that such an application of the regulation would render the PRD bylaw
self-defeating.  Instead, the court construed § 5.21(D)(4) compatibly with
the express goal described in § 2.2 of promoting clustered units in return for
open space, and the § 5.21(D)(4) mechanism consistent with achieving that
objective: the requirement that each unit have not less than two acres
“exclusively associated with it” within the development at large.  Id.
§ 5.21(D)(4).  Considering plain-language conflicts within legislation, we
have observed that “though such construction may seem contrary to the letter of
the statute[, w]hen the provisions of a law are inconsistent, effect must be
given to those which harmonize with the context and the apparent intent of the
Legislature.”  State v. Taranovich’s Estate,
116 Vt. 1, 5, 68 A.2d 796, 798 (1949).  The Environmental Court’s
reconciliation of the ordinance provisions was neither patently wrong nor
unreasonable.  See In re Cassella Waste
Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 830 A.2d 60 (2003) (noting
that “[w]e review the Environmental Court’s construction of a zoning ordinance
to determine whether the interpretation is clearly erroneous, arbitrary or
capricious”). 
           
Affirmed.
 
 

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
  





[1] 
Because we affirm, we do not reach the issues raised in applicant’s motion to conform the record and take judicial notice, received on the
eve of oral argument.  


[2]
Though now repealed, § 4407(3) still applies to town ordinances written under
this section until September 1, 2011.  24 V.S.A. § 4481.


[3] 
Specifically, applicant requested reductions to requirements for (1) minimum
lot size to one-third of an acre; (2) minimum acreage per dwelling to one-third
of an acre, provided that this reduction did not affect the total number of
units allowed; (3) the lot frontage and width minimums to sixty feet; (4) the
lot depth requirement to one hundred and twenty-five feet; (5) front yard
setback minimum to fifty-five feet; and (6) rear and sideyard
setbacks to fifteen feet.



