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 by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.


                                        2015 VT 123

                                        No. 2014-434

In re Bove Demolition/Construction Application               Supreme Court
(Richard J. Bove, Sr. and Rick Bove, Appellants)
                                                             On Appeal from
                                                             Superior Court,
                                                             Environmental Division

                                                             April Term, 2015


Thomas G. Walsh, J.

Christina A. Jensen of Lisman Leckerling, P.C., Burlington, for Appellants.

Kimberlee J. Sturtevant, Assistant City Attorney, Burlington, for Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


       ¶ 1.      SKOGLUND, J. Applicants, Richard J. Bove, Sr. and Rick Bove, applied to the

City of Burlington Development Review Board (DRB) to construct a development on their two

adjacent lots.    A zoning-district-boundary line runs through the middle of the proposed

development, dividing the two parcels. The city’s zoning ordinance requires a fifteen-foot

setback intended to be a buffer between the two districts—one downtown and the other

residential. The DRB denied the application, and applicants appealed to the Environmental

Division. The Environmental Division concluded that, although the merger of the two adjacent

lots eliminated the property line dividing the two parcels, the merger did not eliminate the

fifteen-foot buffer required by the zoning ordinance. Thus, any new structure in the downtown
district parcel could not encroach on the setback bordering the residential district parcel. The

decision of the Environmental Division comes to us on interlocutory appeal. We affirm.

       ¶ 2.      The following facts are undisputed. Applicants own two lots on George Street,

one located directly north of the other. The southern lot is located entirely in the Downtown

Transition Zoning District (DT district); the northern lot is located completely in the Residential

High Density Zoning District (RH district). The property line separating the two lots is thus also

the boundary line between the DT and RH districts. Applicants propose to merge these two lots,

thereby eliminating the existing property line, remove several existing buildings located on the

two lots, and construct a single development consisting of twenty-three residential units and one

commercial unit. The development would face eastward on George Street, its width running

north-south across both lots, bisected by the east-west DT-RH boundary line. The northernmost

edge of the building as proposed would be less than fifteen feet from the residential lot

immediately to the north of applicants’ two lots.

       ¶ 3.      Following the DRB’s denial of their application, applicants appealed to the

Environmental Division. They moved for partial summary judgment, asking that court to decide

the following question: If the two parcels of land owned by applicants are merged into a single

lot, thereby eliminating the property line separating the former parcels, does the Burlington

Comprehensive Development Ordinance require that improvements built thereon comply with

the setback requirements from a zoning district line? The zoning-district-line setback at issue

here is City of Burlington Comprehensive Development Ordinance § 4.4.1(d)(6) (2012)

[hereinafter CDO]. That provision states that, in the DT district, “[s]tructures shall be setback a

minimum of 15-feet from any property line that abuts a residential zoning district.” 1 CDO

§ 4.4.1(d)(6).


       1
          The provision also refers to a list of exceptions that apply to “yard setback
requirements” generally, but none is relevant here. CDO § 4.4.1(d)(6) (citing id. § 5.2.5(b)).
                                                2
         ¶ 4.   Before the Environmental Division, applicants argued that upon merger of the two

parcels, the fifteen-foot setback would not be required between the northern edge of the new

structure and the northern property line. Applicants reasoned that no provision of the CDO

required a zoning-boundary-line setback to exist in the absence of a property line between a lot

located in the DT district and a lot located in an adjacent residential district. Therefore, they

posited, they needed to comply only with the sideyard setback based on lot width in the RH

District, which would result in a 5.14-foot setback.2

         ¶ 5.   The City argued that the setback requirement of CDO § 4.4.1(d)(6) applied

regardless of whether the DT-RH boundary line was also a property line. The City claimed that,

in situations similar to this one, it had required the developer to formally request that the zoning-

district line be redrawn to reflect the change in the property line. 3 Absent such an amendment,

the City contended, a developer must comply with the fifteen-foot setback from the district

boundary line, even if that setback would run through the middle of the merged parcel.

         ¶ 6.   The Environmental Division interpreted CDO § 4.4.1(d)(6) differently than either

party.   It held that “the proposed structure does not have to be setback from the existing

boundary line between the DT and the RH zoning districts if the property line is removed

through merger of the parcels.” It concluded, however, that although the merger of the two lots


         2
          The sideyard setback generally applicable to RH properties is 10% of the lot width but
no less than five feet. CDO Table 4.4.5-3. Assuming arguendo that the DT portion of
applicants’ lot would be subject to DT-specific restrictions and the RH portion would be subject
to RH-specific restrictions, the 51.4-foot-wide RH portion of applicants’ lot would need a 5.14-
foot setback from its northern edge.
         3
           In its summary-judgment memorandum below, the City listed several instances in
which its “staff” interacted with developers who were seeking to build on or at district
boundaries; the end result in each instance was that the developer requested and was granted an
adjustment to the district line. While applicants in this case have not requested that the district
line be redrawn, the City cites no requirement in the CDO that applicants make such a request.
In any event, the City has not raised those interactions in the form of an argument on appeal. We
will not consider them. See State v. Eldert, 2015 VT 87, ¶ 21, n.6, ___ Vt. ___, ___ A.3d ___
(“We will not consider arguments not adequately raised and briefed.”).
                                                  3
eliminated the current property line dividing the two parcels, the merger did not eliminate the

setback, because the intent of the drafters of the zoning ordinance was to provide a transitional

buffer between downtown zoning districts and adjacent residential districts. Thus, “any new

structures in the downtown districts must be at least 15 feet from the shared property line with a

parcel in a residential district.”

        ¶ 7.    Applicants sought leave for an interlocutory appeal, and the environmental

division ultimately certified the following question to this Court for review:

                 Whether the Environmental Court erred by ruling as a matter of
                law that a to-be-built structure on a new parcel resulting from
                merger of a parcel in the DT zoning district with a parcel in the RH
                district must comply with the [DT-RH] zoning district setback
                along the new parcel’s northern property line (located in the RH
                district), unless otherwise exempted.

        ¶ 8.    This Court defers to the Environmental Division’s “interpretation of a zoning

ordinance unless it is clearly erroneous, arbitrary, or capricious.” In re Wesco, Inc., 2006 VT 52,

¶ 7, 180 Vt. 520, 904 A.2d 1145 (mem.) (quotation omitted); In re Weeks, 167 Vt. 551, 554, 712

A.2d 907, 909 (1998). We construe zoning ordinances strictly in favor of landowners, In re

Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590 (mem.), but our “principal

objective” in interpreting statutory or ordinance language is to implement the intent of its

drafters. Baker v. State, 170 Vt. 194, 198, 744 A.2d 864, 868 (1999). In doing so, we adhere to

familiar principles of statutory interpretation. In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909

(1998). We thus turn first to the plain language of the bylaw at issue. Id. But we recognize that

“[zoning] regulations cannot be considered to be entirely exhaustive, given the breadth of novel

land-development possibilities a municipal body may face.” Laberge Moto-Cross, 2011 VT 1,

¶ 14. Thus, if applying the plain language is impossible, would undermine the purpose of the

statute, or would produce absurd results, then we examine “the broad subject matter of the

statute, its effects and consequences, and the purpose and spirit of the law to determine


                                                 4
legislative intent.” Town of Killington v. State, 172 Vt. 182, 189, 776 A.2d 395, 401 (2001); see

also In re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999).

       ¶ 9.    As the Environmental Division recognized, the City’s interpretation of CDO

§ 4.4.1(d)(6) ignores the plain language of the provision and common sense. The provision

dictates the distance a structure must stand “from any property line.” Moreover, the CDO

defines “setback” as “[t]he open, unobstructed area required to be provided between the

furthermost projection of a building and the adjacent property line.” CDO Art. 13: Definitions,

at 13-39 (emphasis added). The setback requirement of § 4.4.1(d)(6) therefore does not apply

absent a property line. Indeed, it would be strange to apply a setback in the middle of a property,

as the City would do here.

       ¶ 10.   We agree with the City and the Environmental Division, however, that applicants’

interpretation of the setback provision—to allow them to unilaterally eliminate the buffer

between the City’s residential zoning districts and the downtown zoning districts through the

merger of two parcels—would undermine the intent of the drafters of the CDO. The CDO

describes the purpose of the DT district as “provid[ing] a balance and continuity in the character

and scale of development . . . between the Downtown and the nearby residential district,” and

functioning as a “gateway[]” or “transition” between those districts.         CDO § 4.4.1(a)(2).

Structures in the DT district require minimal or zero setback and may cover 100% of the lot, id.

Table 4.4.1-1, but structures in the RH district require setbacks in the range of five to seventy-

five feet and may cover only up to 80% of the lot. Id. Table 4.4.5-3. Therefore, the purpose of

the fifteen-foot “Residential District Setback” in § 4.4.1(d)(6) logically must be to provide a

buffer between the denser downtown development and the less-dense residential communities.

The Environmental Division’s interpretation of this district-boundary setback—that it should

apply at the new northern border of applicants’ merged parcel, rather than along the former

property line that divided the merged parcels—provides the buffer intended by the CDO drafters.

                                                5
       ¶ 11.   The Environmental Division’s interpretation here is reinforced by our decision in

In re All Metals Recycling, Inc., wherein we confronted a similar multi-parcel setback issue.

2014 VT 101, ¶ 13 ___ Vt. ___, 107 A.3d 895. In that case, a business that leased multiple

adjacent parcels applied to the local development board for a discretionary permit to continue

operating a previously unpermitted scrap metal plant, using space on all of the adjacent parcels.

Neighbors challenging the permit application contended, among other things, that the business’s

proposal violated setback and buffer requirements of the zoning ordinance.

       ¶ 12.   The bylaws of the applicable zoning district required that each property have

setbacks, which could include landscaped buffers, on all sides. The bylaws stated that setbacks

and buffers are “ordinarily measured” from “the property . . . line.”        Id. ¶ 23.    While the

neighbors argued that the business was required to have setbacks around each adjacent parcel in

the set of parcels that contained the business’s operation, we disagreed.            We implicitly

acknowledged that the language “ordinarily measured” meant that setbacks generally would be

measured from deeded property lines, but we interpreted the wording as “leav[ing] room for

situations just like the present one, in which a business leases multiple parcels and uses space on

each for its operations.”    Id. ¶ 24.   We considered the stated purpose of the ordinance’s

setback/buffer provisions, which included “ ‘ensur[ing] land use compatibility by requiring

effective landscaped buffers between potentially incompatible uses,’ ” id. ¶ 24 (alteration in

original), and we ultimately interpreted “property line” to mean “the outer boundary of a

property dedicated to a single use or under common legal control,” rather than property lines

reflected on fee simple deeds. Id. ¶ 25 & n.5.

       ¶ 13.   The Environmental Division’s decision in this case similarly rejects an

interpretation that would apply a setback to an illogical location in favor of an interpretation that

respects both the plain language and stated purpose of the setback provision. Just as the setback

buffers in All Metals Recycling were “ordinarily” measured from deeded property lines, the City

                                                 6
points out that the boundary lines of the DT district “generally” follow property lines. But we

know from other CDO provisions that lots split by a zoning district boundary exist and are

accommodated in various ways. See, e.g., CDO §§ 5.2.3(a)(1), 5.2.7(a)(1). Moreover, if district

lines always followed property lines, the reference in the setback provision to property lines

would be superfluous. The provision would simply state that structures must be setback “from

any residential zoning district line,” rather than “from any property line that abuts a residential

zoning district.” See CDO § 4.4.1(d)(6). We assume that the drafters intended each word of the

setback provision to have meaning; we avoid construing language of an ordinance as mere

surplusage. See In re Lunde, 166 Vt. 167, 171, 688 A.2d 1312, 1315 (1997). Thus, while this

case requires application of the setback provision in an unusual situation, the drafters’ language

“leaves room for situations just like the present one, in which [developers own] multiple parcels

and use[] space on each for [their] operations.” All Metals Recycling, 2014 VT 101, ¶ 24.

       ¶ 14.   The drafters’ intent is subject to yet further debate.       Both parties claim that

changes made or not made during the 2008 redrafting of the CDO support their respective

interpretation of the DT-RH setback provision. Applicants and the City both note that the

drafters amended provisions of the CDO regarding split lots with respect to calculating density

and lot coverage, but not setback requirements. Applicants imply that the drafters’ failure to

address district-boundary setbacks specifically with respect to split lots indicates their intent that

the setback requirements not apply in split lots. The City argues, on the other hand, that this

omission means the drafters intended the setback provisions to apply to split lots, even where the

zoning district boundary line bisects a parcel.

       ¶ 15.   The City also points to the deletion of a particular provision as further proof that

setback provisions are intended to apply to split lots. During the 2008 amendments, the drafters

removed a provision that listed several rules for interpreting district boundaries where

“uncertainty exists as to the boundaries of any district.” Two of those former rules applied to

                                                  7
split lots and dictated that, with a couple of exceptions, that the split-lot owner should have the

benefit of the more-permissive district’s restrictions. The City suggests that, by removing this

provision while also adding other rules specifically for split lots, the drafters clarified that split

lots are granted no special allowances, except for lot coverage and density, so zoning district

boundary setbacks must apply at boundary lines regardless of whether they follow property lines.

       ¶ 16.   The arguments of both parties fail because they rely on what they seek to prove.

Applicants’ premise assumes that the ordinance as written completely excludes split lots from

the district-boundary setback, while the City’s argument assumes that the ordinance’s current

language strictly applies the setback at the zoning-district-boundary line and that only a specific

exception could change its location. The fact is the CDO drafters have never specifically

addressed the particular legal conundrum presented here. Nor would we necessarily expect them

to. See All Metals Recycling, 2014 VT 101, ¶ 13 (“We have recognized that zoning regulations

cannot be considered to be entirely exhaustive, given the breadth of novel land-development

possibilities a municipal body may face.” (quoting Laberge Moto-Cross, 2011 VT 1, ¶ 14)). The

drafters’ failure to address this particular situation does not indicate their position on it; instead,

we are left with other tools of statutory interpretation to discern their intent from the language of

the ordinance currently in effect. We have applied those tools and find no clear error in the

Environmental Division’s interpretation of the ordinance.

       ¶ 17.   Finally, the City expresses concern about expansion of our holding. It argues that

affirming the Environmental Division’s decision would allow developers to buy up a row of

lots—one in the DT district and the rest extending into the RH district—and thereby unilaterally

shift the DT-RH setback buffer far past its intended location. Contrary to the City’s concern, our

decision does not necessitate that the DT-RH setback in such a case be shifted to the edge of the

new parcel farthest from the original DT-RH line. While we hold that the Environmental

Division’s interpretation of the zoning provision in this case was a correct understanding of the

                                                  8
law and effectuated the legislative intent, our opinion does not purport to predict the outcome of

all future cases addressing the scope of the same provision. For example, if a hypothetical

application of this setback were to create a seemingly absurd result, we would be tasked with

applying the same statutory analysis we have utilized here to determine whether the legislative

intent of the statute had been honored or ignored. See, supra, ¶ 8. In this case of a two-lot

merger, it was not clearly erroneous to interpret the district-boundary setback to apply at the

property’s border with the next RH-district property in light of the plain language and purpose of

the setback provision.

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice


       ¶ 18.   ROBINSON, J., dissenting.          The portion of applicants’ land that is located

within the residential high density (RH) zoning district is subject to all of the requirements of the

RH district with respect to, among other things, building height, dimensional standards, and

density. Yet the majority holds that the tract is subject to a more onerous setback requirement on

its northern boundary than any other property in the City of Burlington located in the RH district.

The rationale underlying the majority’s analysis does not support its conclusion, and its ruling

undermines important zoning policies, is untethered from the letter and goals of the applicable

zoning ordinances, and leads to unpredictable outcomes.          For these reasons, I respectfully

dissent.

       ¶ 19.   I note at the outset that I fully agree with the majority’s rejection of the City’s

argument that the ordinance requires a setback within applicants’ merged lot, between the

portion located in the downtown transition (DT) district and the portion in the RH district. Ante,


                                                 9
¶¶ 5-9. That position does not jibe with the language and purpose of the ordinance, and makes

little sense for the reasons identified by the majority. But I cannot join the conclusion that

because the setback called for in the applicable ordinance does not apply here, a new setback

between two properties within the RH district is required.

       ¶ 20.   The majority reasons that “the purpose of the fifteen-foot ‘Residential District

Setback’ in [City of Burlington Comprehensive Development Ordinance § 4.4.1(d)(6) (2012)

[hereinafter CDO]] logically must be to provide a buffer between the denser downtown

development and the less-dense residential communities.” Ante, ¶ 10.

       ¶ 21.    If the merger of applicants’ lots meant that the RH portion of applicants’ lot was

now subject to the zoning requirements of the DT district with respect to matters such as building

heights, dimensional standards, and density, then the majority’s reasoning would make a lot of

sense. Consistent with the City’s zoning ordinances, the neighbor to the north of applicants’

newly-merged lot should not suddenly find itself pressed up against a DT-district-compliant

structure without some sort of buffer.

       ¶ 22.   But the RH portion of applicants’ lot is not subject to the requirements of the DT

district by virtue of the merger of applicants’ lots. In 2008, the City amended its ordinances to

eliminate rules providing that a split-lot owner gets the benefit of the more permissive district’s

restrictions with respect to the entire lot if more than fifty percent of the land area of the parcel

lies within the less-restrictive zone. There is nothing in the revised ordinance that suggests that

properties straddling district lines are exempt from the requirements applicable in each respective

district regarding the property in that district. Nor is there any support for the notion that the

creation of a split lot effects a relocation of the district boundary. The district boundaries are to

be interpreted with reference to the property lines or other applicable references as they existed

at the time of passage of the ordinance, CDO § 4.1.4, and the ordinance clearly provides that

district boundaries can only be amended by the administrative officer in accordance with actions

                                                 10
of the city council. Id. § 4.1.3. For these reasons, the portion of applicants’ lot previously

located in the RH district is still located in the RH district, and is still subject to the RH

districtzoning requirements.     As applicants acknowledge, to the extent that their proposed

structure sits on the portion of their lot that lies within the RH district, it must comply with the

RH district zoning requirements.

       ¶ 23.   Because the RH portion of applicants’ lot is subject to the RH district zoning

requirements, the notion that a buffer is required to insulate the neighbor to the north in the RH

district from the denser downtown development of the DT district4 does not make sense.

Because the neighbor to the north adjoins property that is within the RH district, and is subject to

the residential-district zoning requirements of that district, there is no greater need for a buffer

between applicants’ property and the neighbor to the north than between any other two properties

within the RH district. The majority’s rationale does not support its conclusion.

       ¶ 24.   Moreover, the majority’s approach undermines an important policy goal of the

ordinance—to provide uniform requirements for structures within each district. The ordinance

specifically identifies among its purposes, “[p]roviding uniform provisions for each class of uses

or structures within each district” and “[r]equiring that every parcel of land and every structure in

the city . . . be subject to the regulations, restrictions, and requirements specified for the district

in which it is located.” CDO § 4.0(b), (c). Yet, as noted above, the majority’s approach singles

out one area within the RH district—the northern portion of applicants’ merged lot—and applies

a setback requirement that is more restrictive of the property owner’s ability to develop that


       4
           The ordinance provides that the RH district “is intended primarily for high density
attached multi-family residential development. Development is intended to be intense with high
lot coverage, large buildings, and buildings placed close together. Parking is intended to be
hidden either behind or underneath structures.” CDO § 4.4.5(a)(5). The DT district is intended
to serve as a gateway and a transition between the Downtown district—the primary urban center
of Burlington—and the nearby residential district. My analysis does not turn on this fact, but it’s
important to note the contrast between the character of these two districts in terms of the primary
factor cited by the majority—density—is modest.
                                               11
property than the requirements applicable to any other property within the RH district. And it

subjects applicants’ property to more onerous rules than any other property in the RH district

without an overriding rationale that advances other goals of the ordinance. This approach is not

consistent with the stated purposes of the zoning ordinance. See In re Tyler Self-Storage Unit

Permits, 2011 VT 66, ¶ 13, 190 Vt. 132, 27 A.3d 1071 (“We examine not only the plain

language of a zoning ordinance, but also the whole of the ordinance . . . in order to try to give

effect to every part, and will adopt an interpretation that implements the legislative purpose . . .

The legislative intent is most truly derived from a consideration of not only the particular

statutory language, but from the entire enactment, its reason, purpose and consequences.”

(quotation omitted)).

       ¶ 25.   If the plain language of the ordinance supported the majority’s approach, I might

be persuaded. See In re Howard Ctr. Renovation Permit, 2014 VT 60, ¶ 9, 196 Vt. 542, 99 A.3d

1013 (“Our paramount goal in construing a zoning ordinance, like any statute, is to give effect to

the legislative intent. Thus, we construe an ordinance’s words according to their plain and

ordinary meaning, giving effect to the whole and every part of the ordinance.” (quotations

omitted)). But the notion that the ordinance requires a fifteen-foot setback between land situated

in the RH district and another property in that district is untethered from the ordinance. The

ordinance applicable to property within the DT district provides: “Structures shall be setback a

minimum of 15-feet from any property line that abuts a residential zoning district.” CDO

§ 4.4.1(d)(6). The majority’s approach applies this restriction to property that is located in the

RH district, and requires a setback from a property line that does not “abut” a residential zoning

district, but rather is fully within it.   Absent compelling evidence that our construction is

consistent with the intent of an ordinance, we should not stray this far from its plain language.

       ¶ 26.   Underlying the majority’s analysis seems to be the sense that the ordinance

contemplates an unbroken “buffer” between the boundaries of the DT and RH districts, enforced

                                                 12
by a fifteen-foot undeveloped swath of land. If this buffer is not required smack down the

middle of applicants’ merged lot, it must be required somewhere, and the boundary between

applicants’ lot and the neighbor to the north seems like the most appropriate place to put it. But

the sense that there has to be a fifteen-foot swath somewhere reflects an assumption that is not

supported by the language and purposes of the ordinance, nor by the record. Having rightly

concluded that, by its plain terms and consistent with its intent, the setback ordinance does not

require a fifteen-foot swath down the middle of applicants’ merged lot, the majority did not have

to search for another place to require a fifteen-foot buffer. Because the property in the RH

district that would have benefited from the buffer was merged with the property in the DT

district on which the buffer would have been required, the goals of the buffer are satisfied. It

does not need to be relocated somewhere else.

       ¶ 27.   And the logic of the majority’s approach is not entirely clear. Why not relocate

the buffer to the south end of the merged parcel, so that a fifteen-foot buffer was required

between the adjoining property within the DT district to the south, and the portion of applicants’

merged lot that was within the DT district? 5 If applicants acquire the lot immediately north of

the merged lots, and merge that lot into the existing ones, does the floating fifteen-foot

undeveloped swath move to the next lot north? Does it keep floating as more lots are merged?

The majority asserts that its holding is limited to the facts of this case, but its rationale offers no

clear framework for answering these questions.

       ¶ 28.   For these reasons, I dissent. I would hold that all of the requirements of the RH

district, including setback requirements, apply to the portion of applicants’ lot within that district,

all of the requirements of the DT district apply to the portion of applicants’ lot within that


       5
          I realize that in this case the southern portion of the merged lot is bounded on the south
by Pearl Street. My point is that the logic of the majority’s approach—looking for a different
place to situate a fifteen-foot buffer when a newly merged lot straddles the DT and RH
districts—could as easily lead to relocating the “buffer” to the other end of an affected property.
                                                   13
district, and the residential district setback applicable in the DT district does not by its own terms

or goals apply in this case.



                                                Associate Justice




                                                 14
