2014 VT 101


In re All Metals Recycling, Inc. (DRB
Permit Appeal) (2013-455)
 
2014 VT 101
 
[Filed 14-Aug-2014]
 
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.
 
 

2014 VT 101

 

No. 2013-455

 

In re All Metals Recycling, Inc.


Supreme Court


(DRB Permit Appeal)


 


 


On Appeal from


     


Superior Court,


 


Environmental Division


 


 


 


May Term, 2014


 


 


 


 


Thomas
  G. Walsh, J.


 

Hobart F. Popick and James T. DeWeese of Langrock Sperry
& Wool, LLP, Burlington, for
  Appellants.
 
Paul S. Gillies of Tarrant, Gillies, Merriman &
Richardson, Montpelier, for Appellee
  Town of Williston.
 
Robert F. O’Neill and David A. Boyd of Gravel & Shea PC,
Burlington, for Appellee All Metals
  Recycling, Inc.
 
 
PRESENT:   Reiber, C.J., Skoglund, Robinson and Crawford,
JJ.,[1]
and Zonay, Supr. J., 
                     Specially Assigned
 
 
¶ 1.          
SKOGLUND, J.   Thirteen Town of Williston residents appeal from
the Superior Court, Environmental Division’s grant of a discretionary permit to
All Metals Recycling, Inc., to establish an outdoor storage area and install a
scale and scale house.  The discretionary permit allows applicant to continue operating
a previously unpermitted scrap-metals recycling business in Williston.  The
permit proposes no physical changes to any buildings on the premises, as
applicant has already constructed the scale and scale house which the permit
will authorize.  Residents argue that (1) applicant’s business is not a
permitted use under Williston’s Unified Development Bylaws; (2) the
environmental court erred in not remanding the application for further review
by the Town’s Development Review Board (DRB) when applicant submitted a new
parking plan several weeks before trial; and (3) applicant’s proposed parking
plan does not conform to the Bylaws.  We affirm.
¶ 2.          
For several years, applicant has operated a scrap-metals recycling
facility at 38-42 Dorset Lane in Williston.  Applicant’s business consists of
purchasing, sorting, and recycling metals that are either brought to the
facility by customers, or collected directly from customers and trucked to the
facility by applicant.  Customers bringing materials to the facility are
required to separate scrap metals from garbage and nonrecyclable materials
prior to applicant’s acceptance of the metals.  Applicant does not accept
garbage at the Williston facility.  Materials collected offsite from customers
are trucked in, and the trucks are weighed, unloaded, and weighed again.  After
collection and weighing, applicant then sorts, shears, crushes, and compacts
the metals using a variety of industrial equipment, and ships them for resale
to mills, processors, and refineries.  
¶ 3.          
The facility is located in Williston’s Gateway Zoning District North
(GZDN).  ReSOURCE: A Nonprofit Community Enterprise, Inc. leases the property
from the owner, Riggs Properties.  In turn, applicant subleases approximately
463 square feet of indoor office space as well as extensive exterior space from
ReSOURCE.  Prior to construction of the scale and scale house, the owner of
Riggs Properties informed applicant that the area in which the scale and scale
house would be placed was part of applicant’s sublease.  However, it was later
determined that the scale and scale house were located on a small portion of
land belonging to the Town.  
¶ 4.          
Residents, including a concerned business competitor, sent a letter to
the Town’s Zoning Administrator expressing concerns regarding applicant’s
business.  Residents questioned applicant’s lack of a permit, and whether
applicant’s activities were a permitted use within the GZDN under the Bylaws. 
These concerns were brought to applicant’s attention, and soon after, applicant
submitted a discretionary permit application to the Administrator.  After a
public notice and hearing, the DRB approved the discretionary permit with
several conditions, including that applicant obtain a lease from the Town for
use of the land containing the scale and scale house.  In May 2012, applicant
satisfied this condition.  Residents then appealed to the environmental court. 

¶ 5.          
The environmental court swiftly disposed of a series of cross-motions
for summary judgment, concluding that applicant’s proposed use was permitted in
the GZDN under the Bylaws.  The court denied summary judgment on the
sufficiency of proposed off-street parking, however, concluding that applicant
lacked a plan clearly marking out locations of individual parking spaces.  In
response, applicant submitted an additional parking layout plan, clarifying the
number and location of parking spaces around the premises.  The environmental
court denied residents’ motion in limine to exclude the additional plan from
trial.  The court reviewed the parking plan de novo at trial and granted the
discretionary permit, holding that, with the addition of a bicycle parking
space, applicant’s parking met all Bylaw requirements.  Residents now appeal to
this Court.[2] 

¶ 6.          
We first address residents’ contention that the environmental court
erred in granting applicant’s motion for summary judgment on the issue of
whether applicant’s proposed operation is a permitted use under the Bylaws.  We
review motions for summary judgment de novo, applying the same standard of
review as the trial court.  In re Miller Subdiv. Final Plan, 2008 VT 74,
¶ 8, 184 Vt. 188, 955 A.2d 1200.  If there is no genuine issue of material
fact, summary judgment will be granted where the moving party is entitled to
judgment as a matter of law.  Id.; see also V.R.C.P. 56(a).  The
nonmoving party will receive the benefit of all reasonable doubts and
inferences.  Miller, 2008 VT 74, ¶ 8. 
¶ 7.          
In setting forth the permitted uses within each zoning district, the Town
relies on the North American Industrial Classification System (NAICS), which
the Bylaws define as an “all-inclusive hierarchical system for describing
economic activities.”  Because the Bylaws expressly rely on NAICS definitions
for categories and subcategories of permissible business activities, we
likewise refer to these NAICS definitions to determine whether applicant’s use
is permitted.  
¶
8.          
Under the Bylaws, the GZDN “offers a location for a continuing diverse mix
of light industrial, commercial, and office uses.”  Among the list of NAICS
categories permitted to operate in the GZDN are “Waste Management and
Remediation Services.”  The NAICS definition for waste management and
remediation services “includes establishments . . . operating
materials recovery facilities (i.e., those that sort recyclable materials from
the trash stream).”  NAICS code 562 (2007), https://www.census.gov/eos/www/naics/index.html. 
“Materials Recovery Facilities” is, in turn, a NAICS-defined subcategory of
“Waste Management and Remediation Services” and refers to “establishments
primarily engaged in (1) operating facilities for separating and sorting
recyclable materials from nonhazardous waste streams (i.e., garbage) and/or (2)
operating facilities where commingled recyclable materials, such as paper,
plastics, used beverage cans, and metals, are sorted into distinct categories.” 
Id. at 562920.  
¶ 9.          
“[Z]oning Bylaws are interpreted according to the general rules of
statutory construction.”  In re Champlain Oil Co. Conditional Use
Application, 2014 VT 19, ¶ 7, ___ Vt. ___, 93 A.3d 139.  Our objective
in statutory interpretation is to construe and effectuate the legislative
intent behind a statute.  In re Carroll, 2007 VT 19, ¶ 9, 181 Vt.
383, 925 A.2d 990.  “We will enforce the plain meaning of the statutory
language where the Legislature’s intent is evident from it,” but where not
evident from the plain meaning, we will construe intent from consideration of “the
whole statute, the subject matter, its effects and consequences, and the reason
and spirit of the law.”  Id. (quotation omitted).  Thus, where an
operation satisfies the plain meaning of the NAICS definitions provided in the
Bylaws for a given district, it is a permitted use within that district.
¶
10.      
The environmental court concluded that applicant satisfied the
definition of “Materials Recovery Facilities” and was thus permitted to operate
in the GZDN.  Residents argue that applicant cannot satisfy the NAICS
definition for either the waste management and remediation category or the
materials recovery facility subcategory because applicant does not accept
actual garbage, thereby failing to remove materials directly from the “trash”
or “waste stream” as residents claim the NAICS definitions require.  We are not
convinced. 
¶
11.      
The NAICS definition for materials recovery facilities requires that an
enterprise separate materials from waste streams or sort commingled
recyclable materials into distinct categories.  NAICS 562920, supra.  Applicant’s
business involves taking a variety of recyclable metals, likely to otherwise
land in the garbage dump, and sorting them into categories based on crushable
weight or type of metal, such as aluminum and copper or ferrous versus
non-ferrous.  Residents do not dispute that applicant is engaged in purchasing,
transporting, sorting and processing recyclable scrap-metal materials, and the
environmental court found that applicant “sorts and aggregates the metals it
purchases.”  Sorting and aggregating are the two components required under the
second prong of the materials recovery facility definition. 
¶
12.      
In maintaining that applicant cannot meet the requirements of either a
waste management and remediation service or a materials recovery facility
because it does not remove recyclables from the trash or waste streams,
residents’ argument ignores the “and/or” language in the NAICS definition. 
Regardless of whether applicant removes recyclables from the trash stream, it
does take commingled recyclable materials—of which “metals” is expressly
included—and sorts them into categories.  Thus, based on the plain language of
the NAICS definition, we hold that the facility’s activities satisfy the
description of a materials recovery facility, and consequently, are an
acceptable type of waste management and remediation service to operate in the
GZDN.  Because we hold that applicant meets the second prong of the materials
recovery facility definition, we do not need to reach residents’ contention
that “trash stream” is an industry term of art from which applicant does not
remove recyclables.  
¶
13.      
Although residents urge that the Bylaws’ definitions be read strictly,
to do so would be contrary to their intent.  The Bylaws, through NAICS, do not
and cannot exhaustively define each iteration of possible business practices;
rather, they provide examples of activities which are used to categorize
businesses as neatly as possible.  See In re Laberge Moto-Cross Track,
2011 VT 1, ¶ 14, 189 Vt. 578, 15 A.3d 590 (mem.) (“[W]e 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.”).  Applicant’s
business meets the plain language definition of a materials recovery facility,
and is thus a permissible use under the Bylaws.
¶ 14.      
We also reject residents’ contention that applicant’s business is an
“industrial” use and therefore not within the scope of GZDN’s “light
industrial” zoning.  Applicant uses several machines including shears, saws,
and a compactor to break down and aggregate like-metals into shippable form for
resale.  Residents characterize these activities as “heavy industrial”
operations, which are at odds with the GZDN’s “light industrial” permitted
uses, but do not offer any substantive distinction between the two that is grounded
in the Bylaws.  The Bylaws do not define the term “industrial,” or offer any
difference between “industrial” and “light industrial” uses.  “Heavy
industrial” uses are nowhere mentioned.  What the Bylaws do state is that the
GZDN is zoned for a “mix of light industrial, commercial, and office uses,”
which applicant—with its small office space, commercial purpose, and limited
use of machinery—meets.  Applicant does not propose a large factory or
processing plant, or another use which could be characterized as a “heavy industrial”
one.  Using some metal-processing machines for part of applicant’s business
does not render the entire business a heavy-industrial use.
¶ 15.      
Residents further contend that because the Bylaws include other,
industrially-oriented districts, they intend to exclude industrial uses from
the GZDN.  Residents point out that there are two other zoning districts, the
Industrial Zoning District East (IZDE), and the Industrial Zoning District West
(IZDW), each permitting a variety of industrial uses.  Residents take the
presence of these two zoning districts as proof positive that applicant has set
up shop on the wrong side of town, claiming that because these districts are
intended for a broader variety of industrial enterprises, applicant’s business
is appropriate for those districts but not permitted in the GZDN.  We disagree.
¶ 16.      
The IZDE, according to the Bylaws, “is intended to accommodate computer
and electronic equipment manufacturing, solid waste disposal, and utilities,”
specifically permitting an IBM plant and landfills.  The IZDW similarly allows
“a variety of industrial and some commercial uses.”  The descriptions of each
zoning district are dispositive of nothing about the GZDN.  They only show that
there are multiple locations in the Town of Williston to develop an industrial
business, not that applicant is precluded from operating in a particular one. 
We note that all three districts allow NAICS category 562, waste management and
remediation services.  Pointing out minor differences between these other
districts and the GZDN only highlights that there is no clear distinction in
the Bylaws between “industrial” and “light industrial” uses that might prohibit
applicant’s operation.  What the Bylaws do include is the NAICS definition for
a materials recovery facility.  Because we have concluded that applicant’s use
constitutes a materials recovery facility—a permitted use in the GZDN—and
because the GZDN’s purpose is to permit light industrial uses, we hold that
applicant’s materials recovery facility constitutes a light industrial use and
is therefore permitted.[3] 
The environmental court did not err in granting summary judgment on this issue
in applicant’s favor.
¶ 17.      
Next we address whether the environmental court erred in relying on a
revised parking plan submitted to the court before trial.  Residents contend
that the court should not have considered the parking plan because it presented
new issues that were not addressed by the DRB, and argue that the court should
have remanded the new plan to the DRB for public notice and hearing.  We review
the environmental court’s determinations of whether to remand permit
applications to administrative review boards for abuse of discretion.  Timberlake
Assocs. v. City of Winooski, 170 Vt. 643, 644, 756 A.2d 774, 776 (2000)
(mem); see also In re Maple Tree Place, 156 Vt. 494, 501, 594 A.2d 404,
407 (1991) (noting that decision to remand a permit application “necessarily
must be an area of trial court discretion”).[4]
¶ 18.      
Applicant submitted a parking plan to the DRB that broadly labeled
available parking areas, which the DRB approved as part of the discretionary
permit application.  As noted above, the environmental court reviewed
this initial parking plan in cross-motions for summary judgment, but found that
the plan did not establish that applicant could supply adequate parking on the
premises.  On June 13, 2013, several weeks prior to trial, applicant submitted
an amended parking plan to the court with changes that responded to the court’s
comments.  Residents objected to the additional material and filed a motion in
limine to exclude it from the merits hearing.  The court denied the motion, and
relied on the amended parking plan in finding that applicant’s parking now satisfied
the Bylaws.  
¶ 19.      
When changes are made to a zoning permit application, the environmental
court may remand the application to the tribunal from which the appeal is
raised, in this case, the DRB.  V.R.E.C.P. 5(j); In re Chaves Act 250 Permit
Reconsider, 2014 VT 5, ¶ 11, ___ Vt. ___, 93 A.3d 69.  Because the
environmental court’s review is “limited to consideration of the matters
properly warned as before the local board,” Maple Tree Place, 156 Vt. at
500, 594 A.2d at 407—in other words, those matters which have undergone proper
public notice and hearing—we have held that “truly substantial changes to the
form or type of an application do require remand.”  In re Sisters &
Bros. Inv. Group, LLP, 2009 VT 58, ¶ 21, 186 Vt. 103, 978 A.2d 448. 
Whether the changes are truly substantial is within the environmental court’s
discretion, and we have upheld the court’s decision to deny remand for
revisions that did not “change the nature of the permit requested, alter the
location of the project, or increase the scope of the project.”  Chaves,
2014 VT 5, ¶¶ 14-16; see also Sisters & Bros., 2009 VT 58,
¶ 21 (upholding environmental court’s decision not to remand permit
changes for zoning board approval).  Were the environmental court forced to
remand for any change that was less than truly substantial, “site-plan review
would become a procedural ping-pong match” that would repeat with every
revision applicants made in response to concerns by interested parties.  Sisters
& Bros., 2009 VT 58, ¶ 21.
¶ 20.      
Here, as in Chaves, “[t]here was no attempt . . . to materially
alter the proposal or change the type of permit requested.”  2014 VT 5,
¶ 12.  In fact, the changes to the amended plan were not nearly so
material as the changes in Chaves, which included moving an entrance and
changing the times of day during which explosives would be used.  The
environmental court here found that the amended parking plan differed little
from the initial parking plan, except to superimpose lines denoting specific
parking spaces, and labeling the number of available spots.  Rather than
presenting issues to the court which had not been addressed by the DRB, the
amended plan supplemented information that was already available to the DRB and
the environmental court.  See Sisters & Bros., 2009 VT 58, ¶ 12. 
It simply pointed out exactly where the required parking spots would be
located, whereas before only general parking areas had been represented.
¶ 21.      
Residents assert that these changes are similar to those seen in Maple
Tree Place, where we affirmed the trial court’s decision to remand a permit
application to the Williston Planning Commission for review of new evidence.  156
Vt. at 495, 594 A.2d at 404-405.  There, the trial court found that the
developer wished to submit new evidence regarding a significant change to the
proposed development plan.  Because the new evidence would alter the project to
include phased construction, and because “the phasing question could or should
have been settled in the planning commission before the matter was ripe for its
review,” we held that remand was appropriate.  Id. at 501, 594 A.2d at
407.  However, unlike the developers in Maple Tree Place, applicant here
has neither submitted evidence presenting new issues, nor proposed significant
changes to a large construction project.  Because the changes to applicant’s
plans were not substantial, we hold that the environmental court did not err in
not remanding the application.
¶ 22.      
The final issue on appeal is whether applicant’s parking plan conforms
to the standards set forth in the Bylaws.  The environmental court found after
trial that the parking plan complied with all requirements of the Bylaws. 
Residents contend that the Bylaws require setbacks that would eliminate parking
spots located on applicant’s subleased land, resulting in insufficient
parking.  Residents also assert that applicant is required to place a
vegetative buffer between the property it leases from the Town and the property
it subleases from ReSOURCE, rendering parking spots located on the Town’s land
inaccessible.  Finally, residents argue that dividing the parking between
applicant’s two parcels does not comply with ownership and use requirements,
and that several parking spots are not adequately protected from ice and snow. 
Our review of the environmental court’s construction of zoning bylaws is
deferential, and we will uphold those constructions unless they are clearly
erroneous, arbitrary, or capricious.  Sisters & Bros., 2009 VT 58,
¶ 16.
¶ 23.      
The Bylaws require that each property in the GZDN have setbacks on all
sides, where the only use is landscaped buffers or pedestrian ways.  Parking
and loading areas are explicitly prohibited from being located in a setback. 
The Bylaws state that setbacks and buffers are “ordinarily measured” from “the
property or right of way line,” which residents take to mean that applicant
must measure from the deeded property line between the land applicant subleases
from ReSOURCE and the land applicant leases from the Town.  This would result
in several of applicant’s parking spaces being impermissibly located within a
setback.  
¶ 24.      
We, however, do not read the language “ordinarily measured” to mandate
measurement from a deeded property line.  Instead, this wording leaves room for
situations just like the present one, in which a business leases multiple
parcels and uses space on each for its operations.  Similarly, rather than
referring only to property lines reflected in fee simple deeds, we read
“property or right of way line” to mean the outer boundary of a property
dedicated to a single use under common legal control.  Such interpretations are
consistent with the listed purposes of the Bylaws landscaping standards, which
include “ensur[ing] land use compatibility by requiring effective landscaped
buffers between potentially incompatible uses.”  
¶ 25.      
Regardless of residents’ concerns regarding setback measurements, the
Bylaws “eliminate side and rear setbacks” when landscaped buffers are placed
between properties with different uses, thus negating the requirement for any
setback that would otherwise interfere with applicant’s parking.  The
environmental court found that applicant proposes to create a landscaped buffer
along the northerly edge of the leased Town land, and both the Zoning
Administrator and the engineer who completed applicant’s discretionary permit
application testified to the proposal’s compliance with the landscaped buffer
requirements.  By placing a buffer there, applicant will satisfy the intent of
the Bylaws landscaping requirements.[5] 

¶ 26.      
Residents next argue that applicant’s parking plan violates the Bylaws
because parking spaces are located for a single business on two properties with
different ownership—the Town and Riggs Properties.  The relevant portion of the
Bylaws reads: “Off-street parking spaces shall be provided on the same lot or
parcel and under the same ownership as the use they serve.”  Residents take
this to mean that the Bylaws require a single entity for both use and
ownership, and because applicant’s plan places parking spots on both the
Town-owned parcel (leased from the Town) and the Riggs Properties-owned parcel
(subleased from ReSOURCE), the parking plan violates the Bylaws.  Again, it
seems that residents are parsing the Bylaws too finely.
¶ 27.      
The Bylaws do not provide a definition of “ownership” to qualify “the
same ownership as the use [the parking spots] serve.”  However, the Bylaws
define “applicant” as “the owner or owners of the property on which the
development is proposed.”  Logically, the word “owner” must extend to lessees
and sublessees, who have limited ownership interests in the property they lease
or sublease.  See In re Stokes Commc’ns Corp., 164 Vt. 30, 37, 664 A.2d
712, 716 (1995) (stating that thirty-year lease provided lessee with “limited
ownership interests”).  Otherwise, the Bylaws would preclude any person or
business not actually holding the deed to a property from applying for a
discretionary permit.  Because applicant leases and subleases property from the
Town and Riggs Properties respectively, applicant is considered an owner for the
purposes of this Bylaws requirement.
¶ 28.      
Residents’ next argument is that certain parking spaces located next to
a roofed overhang on the subleased parcel violate another Bylaws
requirement—that “parking areas . . . must be protected from ice and snow
sliding off roofs.”  The environmental court concluded after trial that this
chapter of the Bylaws applies only to new construction, and therefore does not
apply to applicants here.  We agree with this conclusion.  The ice and snow
protection requirement is found in the design review chapter of the Bylaws,
which is intended “to help ensure that new buildings and major additions to
existing buildings along Williston’s major roads make a positive contribution
to the visual character” of the Town.  Applicant does not propose any “new
buildings” or “major additions to existing buildings.”  The parking spaces that
residents claim offend this Bylaws chapter are located next to a pre-existing
building to which applicant proposes no changes.  
¶ 29.      
Finally, in a last effort to disqualify applicant’s permit, residents
declare that the parking plan is unworkable.  However, applicant provided ample
testimony that there have been no problems with parking to date, and that the
proposed plan is tenable.  The engineer who prepared the plan testified that
the parking plan created a “functional traffic flow.”  And although residents
called their own expert witness to testify against the workability of
applicant’s plan, residents do not mention his testimony on this particular
issue, and provide no substantive argument as to why we should find the parking
layout to be, in their words, a “dysfunctional mix of traffic.”  We therefore
find no reason to second guess the environmental court’s finding that the
application complied in all respects with the Bylaws.  As a result we must
affirm the environmental court’s granting of applicant’s discretionary permit.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 
 
 


 


 


Associate
  Justice

 
 
 


[1]
 Justice Crawford was present for oral argument, but did not participate in
this decision.


[2] 
The Town participated in both the trial and appeal, and generally agrees with
applicant on points of fact and matters of law.  


[3] 
Applicant contends, in the alternative, that if it is not a materials recovery
facility, its operation satisfies the definition for another NAICS category
permitted in the GZDN: “Wholesaler.” Because we find that applicant’s operation
constitutes a materials recovery facility, we need not address residents’
contentions that applicant is not a wholesaler.  
 


[4]
 Residents urge a de novo standard of review, citing to In re Albert, in
which we reviewed de novo the environmental court’s interpretation of a Vermont
statute governing party standing in a zoning permit appeal.  2008 VT 30, ¶¶
6-7, 183 Vt. 637, 954 A.2d 1281 (mem.).  This case presents a different
question—whether the environmental court erred in failing to remand a
discretionary zoning permit application when additional materials were
submitted to the court on the eve of trial.  Because here we are reviewing the
environmental court’s discretionary determination not to remand, we will review
for abuse of discretion.


[5] 
Residents also contend that, like setbacks, landscaped buffers must be placed
between parcels along a deeded property line.  We reject this argument for the
same reason we reject their interpretation of setback-measurement requirements.


