Posted by: Patricia Salkin | September 18, 2016

VT Supreme Court Finds Town Zoning Bylaw was General Statement of Legal Effect of Zoning Regulation, Upholds Board’s Interpretation of “Tree Line”

Mary Bourassa appealed the Environmental Division’s affirmance of a zoning permit application by her neighbors, Philip and Barbara Wagner and Christopher Guay, who sought to construct a single family residence and detached garage on two merged lots of a six-lot subdivision in Grand Isle, Vermont. The Wagners owned lots 3 and 4 of the subdivision, while Bourassa owned and resided at lot 2 of the subdivision. The Wagners sought to sell their lots to Mr. Guay with the intention of adjusting lot lines, merging lots 3 and 4 into a single lot, and building a single-family residence and detached garage on that combined lot. Bourassa opposed the development on the ground that the proposed house would not be constructed within the “tree line” on the property, as required by the subdivision plat plan.

Bourassa’s first, and central, argument is that the Environmental Division’s interpretation of the phrase “within the tree line” was “clearly erroneous.” Bourassa argued that because the phrase is inherently ambiguous, it must be construed against the drafter and proffering party, Mr. Wagner, such that Bourassa’s interpretation of the “tree line” as referring to a line drawn along the trunks of mature trees closest to the road must control. The court first noted that Bourassa’s assertion that permit conditions should be interpreted under the same principles as private contracts had no basis in law. Here, the evidence indicated that the plat plan containing the condition was submitted by Mr. Wagner, and the condition was not required by Grand Isle zoning or subdivision regulations and was unchanged in the Planning Commission’s deliberation. Here, the court determined that ample evidence existed to support the Environmental Division’s conclusion that the phrase “within the tree line” and the scalloped line on the 1995 Plat Plan were intended to reflect the line between the open meadow area and the forested area, rather than the current location of the trunks of mature trees. Accordingly, the court found that Mr. Wagner’s evidence of intent was relevant and admissible, and the Environmental Division properly relied upon it.

Bourassa’s second argument was that the Environmental Division could not rely on Mr. Wagner’s testimony as to the meaning of the phrase “the tree line” because such testimony should be barred by equitable estoppel. She claimed that “the homeowners testified unanimously that they were expressly led to believe that the ‘tree line’ consisted of the tree trunks” and that, in reliance on his words and actions, these homeowners purchased lots within the development. She further contended that although Mr. Wagner “never contradicted this testimony,” the court never made any findings or addressed the issue. However, the court found that the argument was not considered by the Environmental Division because it was not properly raised; therefore, it was not preserved for appeal, and Bourassa was not entitled to reversal on this ground.

Next, Bourassa argued that the Environmental Division erred in dismissing three of her initial questions, which were relevant to the issue of whether applicants’ permit application was inconsistent with the covenants and restrictions in the deeds for lots 2, 5, and 6. However, because the court ruled on the ground that the questions raised issues regarding private property rights, these questions were outside the scope of the Environmental Division’s jurisdiction. Lastly, Bourassa argued that that the language required the town to declare that violation of a deed covenant was also a violation of the zoning bylaw. The court noted, however, that nowhere in the specific restrictions of the bylaws supported this interpretation. Accordingly, the court affirmed the decision of the Environmental Division to dismiss these claims based on the deed covenants.

In re Wagner & Guay Permit, 2016 WL 4582242 (VT 9/2/2016)

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