1 STATE OF VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISION

} In re Moody Subdivision Permit } Docket No. 45-4- 13 Vtec

}

Decision on Motion for Summary Judgment

Morris L. Silver, Esq. and Torrin D. Silver (“Appel lants”) have appealed a decision by the Town of Benson Development Review Board (“DRB”) issuing a permit to Alicia Moody (“Applicant”) for a two lot subdivision located at 2049 Stage Road in Benson, Vermont (“the Town”). Appellants are adjoining property owners a nd have filed the motion for summary judgment now under consideration. Applicant respon ded to Appellants’ summary judgment motion, which became ripe for the Court’s considera tion on August 6, 2013.

Factual Background For the sole purpose of putting the pending motion into context, we recite the following facts, which we understand to be undisputed unless otherwise noted: 1. Applicant owns a 6.58 acre parcel located on St age Road in Benson, Vermont (“the Parcel”). 2. The Parcel is located in the Town’s Agricultural and Rural Residential Zoning District (“ARR District”). 3. The portion of the Parcel running along Stage Ro ad is approximately 175 feet wide. 4. Pursuant to an application submitted on February 26, 2013, Applicant proposes a boundary line adjustment that would give an adjoini ng property owner a portion of the Parcel encompassing approximately 0.4 acres: a rectangular area measuring 65 feet wide at Stage Road and extending approximately 279 feet back from the road. 5. The application also proposes a division of the remainder of the Parcel into two pole and flag-shaped lots. 6. The first of these proposed lots (“Lot 1”) encom passes approximately 2 acres, including a strip of land approximately 45 feet wide and 314 feet long leading from Stage Road to a wider area farther back from the road. This proposed Lot 1 would host Applicant’s existing principal residence and garage, which will be located in the wider area of Lot 1.2

7. The second proposed lot (“Lot 2”) encompasses ap proximately 4.15 acres, including a strip of land approximately 514 feet long leading f rom Stage Road to a wider area farther back from the road. The portion of the strip adjacent t o Stage Road is approximately 65 feet wide; after approximately 279 feet, the strip widens to 1 30 feet for the last 235 feet until it reaches the wider part of the lot. Applicant proposes no princ ipal structures for Lot 2.

Discussion Currently before the Court is Appellants’ motion fo r summary judgment. We first note that we will grant summary judgment to a moving par ty upon a showing that “there is no genuine dispute as to any material fact and the mov ant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). The par ties have not raised any disputes of material fact regarding the pending motion. Resolution of t he pending motion hinges upon the legal interpretation of the relevant zoning regulations, and it is therefore appropriate for a summary judgment consideration. Appellants, Applicant, and the Town dispute whether the proposed subdivision conforms to portions of the Town of Benson Zoning a nd Development Bylaws (“the Bylaws”) concerning lot width as well as lot size and densit y requirements. When interpreting municipal ordinances such as the one now before us, we apply the same principles of construction as we apply to the interpretation of legislative statutes . In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. That is, we “construe words according to their plain and ordinary meaning.” Id. Because our paramount goal in interpreting an ordin ance is to give effect to the intent of the relevant legislative body, we accept the plain mean ing of the words unless doing so would make a provision ineffective or create irrational r esults. Town of Killington v. State, 172 Vt. 182, 189 (2001). We will only look beyond the language of the ordinance to help us ascertain the legislative intent if the language is ambiguous and , therefore, prevents us from identifying a plain and ordinary meaning. See Id. In such cases , “we must ascertain legislative intent through consideration of the entire statute, includ ing its subject matter, effects and consequences, as well as the reason and spirit of t he law.” In re Estate of Cote, 2004 VT 17, ¶ 10, 176 Vt. 293. We may not construe an ordinance in a way that is at odds with its underlying purpose. In re Jewell, 169 Vt. 604, 606 (1999) (me m.) (citing Mesa Leasing Ltd. v. City of Burlington, 169 Vt. 93, 95 (1999)).3

I. Lot width The Bylaw states, “The minimum lot width shall be 2 00 feet.” Bylaw § 3.3(3). Appellants argue that the proposed Lot 1, having a width of 45 feet where it fronts on Stage Road, and Lot 2, having a width of 65 feet where it fronts on Stage Road, each violate this provision. Applicant and the Town urge a different interpretation of “minimum lot width.” Ordinarily, the word “minimum” refers to the lowest number in a series of numbers. Thus, the ordinary meaning of “minimum lot width” w ould refer to the least wide, or narrowest, width of a proposed lot. Put another wa y, if the minimum lot width allowed is 200 feet, a proposed lot with a width of less than 200 feet at any given point would not conform to Bylaw § 3.3(3). Under this interpretation, the lot s as proposed could not be allowed, because portions of them are less than 200 feet wide. Inde ed, municipalities often use such language to discourage the creation of narrow “spaghetti” or “f lag” lots. The definitions section of the Bylaw, however, defi nes “lot width” as “the average distance across the lot measured parallel to the fr ontage side of the lot.” Bylaw § 9 (emphasis added). The Bylaw provides that the words within t he definition section shall have the meanings indicated therein “[u]nless otherwise spec ifically provided, or unless otherwise clearly required by the context.” Bylaw § 9. Alth ough Appellants argue convincingly that the phrase “minimum lot width” should have the meaning expressed in the preceding paragraph, we cannot—without specific language in the Bylaw or a clear indication from the provision’s context—deviate from the definition provided in the Bylaw’s definitions section. Thus, applying this definition of “lot width,” no l ot can have an average width of less than 200 feet. Without a software program such as ArcGIS, calculating the average width of an irregularly-shaped polygon can be a difficult task, particularly if lines are not parallel to each other. For this reason, it is common for zoning re gulations to explain the calculation to be used. Unfortunately, the Town’s Bylaw provides no such ex planation. Lot 1 can, as Appellants suggest, be broken into three rectangles, and the w idth of each can be weighted in proportion to its depth to reach an average width. The Town sugg ests calculating lot width by dividing the total area of the parcel by its total depth. Under both Appellants’ and the Town’s calculation method, the average lot width of Lot 1 is less than 200 feet when the calculation includes the narrow strip of land touching Stage Road. Applican t and the Town suggest that average lot width should be calculated without accounting for t he narrow strips of the two proposed lots4

intended as access roads, but we do not agree that the Bylaw implies that the lot width calculation should exclude any portion of a lot. W e therefore conclude that a calculation of the “average lot width,” as that term is used in Bylaw § 9, must include reference to the entirety of the proposed lot. As such, we conclude that the av erage lot width of Lot 1, calculated by reference to the entirety of the proposed lot, is l ess than 200 feet. Applicant and the Town additionally claim that the proposed lots have no road frontage, and that the minimum lot width only appli es to lots with road frontage. They also interpret the width requirement as only relevant to ensuring that the developable area of lots will meet setback requirements. We find these argu ments unpersuasive. First, as a factual matter, the proposed lots do have frontage on Stage Road as defined by the Bylaw. Frontage is “[t]hat portion of a lot which is adjacent and para llel to a State highway, Town street, Town road[,] or Town right-of-way.” Bylaw § 9. The pro posed lots extend to and touch Stage Road; 45 feet of Lot 1 and 65 feet of Lot 2 are adjacent and parallel to it. Thus, the lots both have frontage on Stage Road. Second, nothing in the reg ulatory language of the width restriction supports Applicant and the Town’s interpretation th at the restriction is intended to assure adequate lot dimensions to avoid violating setbacks . In fact, that interpretation would appear to make the provision duplicative of the setback re quirements themselves.

Thus, for the reasons articulated above, we conclud e as a matter of law that the proposed subdivision does not conform to Bylaw § 3. 3(3), since it is undisputed that the average lot width of Lot 1, calculated by including its na rrow strip, is less than 200 feet.

II. Lot size and density Appellant, Applicant, and the Town also set forth p roposed interpretations of the “minimum lot size” and “minimum density” provisions in Bylaws §§ 3.3(4) and 3.3(5) and the related subdivision provisions in Bylaws §§ 7.6 and 8.8(1). Read together, these provisions create substantial ambiguity about the lot size and density requirements, as well as their application to subdivisions and the new lots create d by such subdivision. As we find that the proposed subdivision creates lost that are less tha n 200 feet wide and therefore do not conform to Bylaw § 3.3(3), however, we need not consider th e arguments related to lot size and density. 1

1 While we need not address the lot size and density issues today, we recommend that the Town consider amending these Bylaw provisions in an effort to cla rify these requirements and how they are applicable in the case of a proposed subdivision.5 Conclusion For the reasons stated above, we GRANT Appellants’ motion for summary judgment, as Applicant’s proposal does not comply with Bylaw § 3 .3(3). As a consequence of our entry of summary judgment for Appellants, we hereby VACATE the March 13, 2013 subdivision approval granted by the Town of Benson Development Review Board. A Judgment Order accompanies this Decision. This c oncludes the proceedings before

this Court.

Done at Berlin, Vermont this 10th day of September, 2013.

_______________________________________ Thomas S. Durkin, Environmental Judge