State of Vermont Superior Court—Environmental Division

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In re Main St. Place, LLC (50 & 58 Main St.) Docket No. 46-3-10 Vtec (Appeal of ZBA denial of conditional use approval)

Title: Motion for Partial Summary Judgment (Filing No. 2) Filed: December 23, 2011 Filed By: Applicant/Appellant Main Street Place, LL C Response filed on 1/30/12 by Interested Person Vill age of Derby Line

___ Granted X Denied ___ Other

Currently before the Court are five separate, but r elated, appeals concerning municipal land use permits for development activities on the same two lots: 50 and 58 Main Street in the Village of Derby Line, Vermont. The above Docket i s an appeal by Main Street Place, LLC (“Applicant”) of a decision by the Town of Derby Zo ning Board of Adjustment denying Applicant conditional use approval to build a conve nience store on the two lots.
Now pending in this appeal is a motion filed by App licant seeking partial summary judgment that its proposed property use, a gas stat ion and associated convenience store, can be sited on a lot with less than 150 feet of frontage under the Town of Derby Zoning Bylaw (“Bylaw”), the bylaws applicable to the subject pro perty. The Village of Derby Line (“the Village”) opposes the grant of summary judgment, ar guing that Bylaw § 402.1 restricts the proposed property use to lots with 150 or more feet of frontage. As Question 9 of Applicant’s Statement of Questions in this matter asks if Bylaw § 402.1 applies to its proposed property use, the pending motion effectively seeks summary judgme nt on Question 9. We will grant summary judgment to a moving party (h ere, Applicant) only if that party shows that “there is no genuine dispute as to any m aterial fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R. E.C.P. 5(a)(2). 1 In determining whether this standard is met, we “accept as true the [factual] a llegations made in opposition to the motion for summary judgment,” as long as they are supporte d by reference to admissible evidence, and give the opposing party (here, the Village) the ben efit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 1 76 Vt. 356; see V.R.C.P. 56(c).
Both Applicant and the Village agree on the princip al facts that are material to our resolution of the pending motion: that Applicant’s proposed use is a combined gas station and

1 We note that an updated version of V.R.C.P. 56 to ok effect on January 23, 2012, subsequent to the fi ling of the pending motion. W e analyze the pending motion, and all other motions for summary judgment filed in the four related appeals concerning 50 and 58 Main Street in the Village of Derby Line, under the current version of the rule because the rule change does not affect our analysis and at least one of t hese motions for summary judgment was filed after the ru le change.Main St. Place, LLC (50 & 58 Main St.), No. 46-3-10 Vtec (EO on Mot. for Partial Summ. J.) (06-19-12) Pg. 2 of 3.

associated convenience store and that it is located within the Village Commercial Derby Line (“VC/DL”) zoning district. While Applicant and the Village also agree that this proposed use best fits within the definition of the property use labeled as an Auto Service Station/Mini Mart in the Town of Derby, they disagree whether Bylaw § 402.1 applies to this use. Because the only dispute before us is a legal one, that is, how to i nterpret the Bylaw, we turn to the Bylaw’s text to determine whether Applicant is entitled to summa ry judgment.
Before discussing the text of Bylaw § 402.1, we not e that we interpret municipal ordinances using the same principles of constructio n as we apply to legislative statutes. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. T hat is, we “construe words according to their plain and ordinary meaning, giving effect to the wh ole and every part of the ordinance.” Id. In interpreting specific ordinance sections, we can co nsider their titles. See In re Vt. Nat’l Bank, 157 Vt. 306, 312–13 (1991). Because our paramount goal in interpreting an ordinance is to give effect to the intent of the relevant legislative bo dy, we accept the plain meaning of the words unless doing so would make a provision ineffective or create irrational results. Cf. Town of Killington v. State, 172 Vt. 182, 189 (2001).
Section 402.1. of the Bylaw reads as follows, in pe rtinent part:
402.1 Auto Service Stations-Auto Service Station/Mi ni Mart
In all districts where a permitted or conditional u se, auto service stations shall comply with the following: . . . B. Lot frontage sh all be at least 150 feet, or as required by district regulations, which ever is gre ater; . . . . The plain language of Bylaw § 402.1 references “aut o service stations” and requires at least 150 feet of frontage for such property use in zoning districts where the use is permitted or conditional. An “Auto Service Station” and “Auto S ervice Station/Mini Mart” are two distinct uses in the Town of Derby. See Bylaw § 902. The l atter is a conditional use in the VC/DL zoning district, but the former is prohibited. Byl aw § 206.1A. Thus, we must first determine which use Applicant’s proposed use is and second de termine whether the Bylaw’s reference to “auto service stations” encompasses that use. Byla w § 402.1. Applicant’s proposed combined gas station and asso ciated convenience store fits squarely in the definition of “Auto Service Station /Mini Mart,” a conditional use in the VC/DL zoning district. See Bylaw §§ 206.1A, 902 (definin g Auto Service Station/Mini Mart as “[a] structure designed for the retail sale of fuels for motor vehicles and the retail sale of consumer goods”). Auto Service Stations have a slightly dif ferent definition, but the pertinent distinction is that they do not include the retail sale of cons umer goods. Bylaw § 902. As stated above, the parties agree that Applicant’s proposed use is an A uto Service Station/Mini Mart.
We now examine whether the Bylaw’s reference to “a uto service stations” encompasses Auto Service Station/Mini Marts. Bylaw § 402.1. T he text of Bylaw § 402.1 refers to “auto service stations” in the lower case, not the upper case. Because both property uses of import here—Auto Service Station and Auto Service Station/ Mini Mart—include the term “auto service station” in their name, the use of the term in the lower case suggests it is intended as a general reference to both defined uses rather than as a specific reference to Auto Service Stations. The title of Bylaw § 402.1, “Auto Servic e Stations-Auto Service Station/Mini Mart,” is conclusive in this regard. In order to construe th e term “auto service stations” to only refer to Auto Service Stations, we would need to conclude th at the inclusion of Auto ServiceMain St. Place, LLC (50 & 58 Main St.), No. 46-3-10 Vtec (EO on Mot. for Partial Summ. J.) (06-19-12) Pg. 3 of 3.

Station/Mini Mart in the title is in error because, otherwise, it would be wholly extraneous. There is nothing in the Bylaw to imply that the sec tion was erroneously titled.
Accordingly, we conclude that Bylaw § 402.1 regulat es both Auto Service Stations and Auto Service Station/Mini Marts and requires a lot frontage of at least 150 feet where these uses are permitted or conditional. As we reach a conclu sion contrary to what Applicant seeks in its motion for partial summary judgment, we DENY Applicant’s motion. Question 9 from Applicant’s Statement of Questions remains outstand ing and subject to resolution at trial.

_________________________________________ June 19, 2012 Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: Pietro J. Lynn, Attorney for Main Street Place, LLC Jon T. Anderson, Attorney for Main Street Place, LL C William E. Simendinger, Co-counsel for Main Street Place, LLC Robert Halpert, Attorney for Town of Derby Paul S. Gilles, Attorney for Village of Derby Line