Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013-080

SEPTEMBER TERM, 2013

In re Leonard & Sayour Permitted Use 

Zoning Permit 

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APPEALED FROM:

} Superior Court, 

} Environmental Division

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} DOCKET NO. 118-8-12 Vtec

Trial Judge: Thomas S. Durkin

In the above-entitled cause, the Clerk will enter:

Neighbor appeals an order of the Environmental Division, which upheld a zoning permit 

that allowed applicants to construct a barn used to store a tractor for maintaining property in the 

Town of Manchester’s Forest and Recreation Zoning District. Neighbor argues that the barn 

does not fit within the uses allowed in the Forest and Recreation District because it is not an 

accessory structure to agricultural use. We affirm.

In May 2012, applicants applied for a zoning permit, requesting permission to relocate a 

historic barn onto their land in the Forest and Recreation Zoning District for the purpose of

storing a tractor as “equipment appropriate and necessary for use in maintaining forest and rec 

land—not for residential scale equipment or storage or use.” The Town zoning administrator 

approved the application, and neighbor appealed that decision to the Town’s Development 

Review Board (DRB). The DRB affirmed the zoning administrator’s decision to grant the 

permit. 

Neighbor appealed to the Environmental Division. The question submitted was whether 

a permit should issue for relocation of a historic barn in the Forest and Recreation Zoning 

District given the Town of Manchester’s zoning requirements. The Town’s zoning ordinance 

includes ten permitted uses in the Forest and Recreation Zoning District. The particular 

permitted use at issue in this case is as follows: “[a]gricultural uses, including: maple sugaring, 

pasturage of livestock, crop raising, and building (except dwellings), accessory to and necessary 

for such agricultural uses.” The specific question before the Environmental Division was 

whether the barn was accessory to an agricultural use. The court conducted a de novo hearing 

and made a site visit. At the close of the hearing, the court made oral findings on the record. 

The court concluded that in the context of this case, the applicants’ regular haying of their field 

so that it does not become grown over and unusable for crops, is an agricultural use as defined in 

the Town’s ordinance, and that the barn used to store the tractor was as an accessory to that use. 

The court accordingly affirmed the DRB’s decision. It confirmed its decision in a written 

judgment. Neighbor timely appealed.
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When a party challenges the Environmental Division’s interpretation of a town 

ordinance, this Court applies a limited standard of review and “will overturn the environmental 

court’s construction of a zoning ordinance only if it is clearly erroneous, arbitrary, or 

capricious.” In re Nott, 174 Vt. 552, 553 (2002) (mem.). In construing the language of a zoning 

ordinance, we use the same rules of construction as for a statute, applying the plain and ordinary 

meaning of words and giving effect to every part of the ordinance. Id. To the extent there is 

ambiguity in a land use regulation it is construed in favor of the landowner because the 

regulation is in derogation of common law property rights. In re Miserocchi, 170 Vt. 320, 324 

(2000).

Likewise, we defer to the Environmental Division’s factual findings, and will not disturb 

those findings unless “viewing the evidence most favorably to the prevailing party, the findings 

are clearly erroneous.” In re Hamm Mine Act 250 Jurisdiction, 2009 VT 88, ¶ 9, 186 Vt. 590 

(mem.). The findings will not be disturbed “as long as there is some credible evidence to support 

a finding . . . even if it is contradicted by substantial evidence.” Id. (quotation omitted).

On appeal, neighbor essentially argues that the environmental court’s finding that 

applicant’s use of the property was agricultural was clearly erroneous. In particular, neighbor 

argues that, at most, the evidence shows that applicants occasionally mowed their open land and 

left the cuttings to deteriorate in the grass. They did not bale the cuttings, sell the hay, cultivate 

the soil, produce crops, raise livestock, or otherwise engage in or derive income from agricultural 

activities on the property. In fact, neighbor argues that the growth applicant mowed consisted of 

wildflowers and brush, not hay. To the extent the Environmental Division’s conclusion that the 

tractor was used for agricultural purposes, and that the barn was accordingly a permitted 

accessory structure, was based on a finding that applicant hayed the field, neighbor argues that 

this essential finding was unsupported by the evidence. 

Neighbor also argues that the environmental court applied the wrong legal standard in 

determining the agricultural nature of applicant’s use. This legal argument largely overlaps with 

the evidentiary argument, since it rests on the premise that the environmental court concluded 

that simply mowing an open field constitutes “haying” and is therefore an agricultural use. As 

set forth more fully below, this argument rests on an overly narrow understanding of the 

environmental court’s findings and conclusions.

We conclude that the environmental court’s findings of fact are supported by substantial 

evidence, that its understanding of the law was correct, and that it did not abuse its discretion in 

applying the facts to the law. Although much of the briefing in this case revolves around the 

definition of “haying,” we need not actually define that term; the term “haying” is not used in the 

Town ordinance, and its definition is not determinative of the issue before us. The questions 

before us are: (1) whether the environmental court’s findings concerning applicant’s use of the 

tractor on the property are supported by the evidence; (2) whether the environmental court 

abused its discretion in concluding that applicants’ use of the tractor amounted to an 

“agricultural” use under the Town ordinance; and (3) whether the environmental court’s 

conclusion that the barn is an accessory building to that agricultural use is supported by the 

evidence and within the court’s discretion. We consider each in turn. 

First, we consider the environmental court’s factfinding. The court asserted that 

agricultural use includes regularly haying “so that [the] field doesn’t get grown up such that it 

can no longer be used for an agricultural purpose, whatever that purpose may be.” Applying this 
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definition, the environmental court found that the haying of the fields on the subject property was 

an agricultural use. The court did not conclude that the mere act of mowing the field was an 

agricultural use in and of itself but, rather, considered the purpose of the mowing—maintaining

the field’s usability for agricultural purposes. The court’s understanding that applicants regularly 

mowed the field was unquestionably supported by testimony that they had the field cut three 

times in 2012. Its implicit finding that they did so for the purpose of preserving the agricultural 

usability of the property was likewise supported by testimony that applicants had finished their 

home within the past year and a half and were considering other activities on the property. In 

particular, applicants presented testimony that they were contemplating fruit trees and crops—

possibly corn—on the property, were considering maple sugaring on the property, and that they 

had sent soil samples to the University of Vermont for testing to determine the soil value and 

what crops could be grown on the property. Given this evidence, the environmental court’s 

finding that applicants were mowing the field to maintain its usability for agricultural purposes 

was not clearly erroneous. 

Given the court’s understanding of applicants’ activities, its conclusion that their efforts 

to keep the field cut so that the land would be usable for agricultural purposes was not an abuse 

of discretion. The ordinance includes a nonexclusive list of activities that are permitted 

agricultural uses, including maple sugaring, pasturing and crop raising. Although applicants had 

not yet determined which of these uses they intended to pursue, given the environmental court’s 

findings that they were keeping the field cut to facilitate future agricultural use, coupled with 

testimony that applicants were evaluating which crops could grow in the field, the court did not 

abuse its discretion in concluding that applicants’ regular mowing of the field was, on the record 

of this case, an agricultural activity. Neighbor’s argument that the list of permitted agricultural 

activities in the ordinance is exclusive is not consistent with the ordinance’s language, which 

prefaces those uses with “including.” The word “including” indicates that what follows is a 

nonexclusive list of examples of agricultural uses. Moreover, neighbor’s argument ignores the 

environmental court’s understanding that the field-cutting in this case was for the purpose of 

facilitating future agricultural activity such as the growing of crops. We need not determine 

given the findings in this case whether mowing a field in and of itself constitutes an agricultural 

use under the ordinance; in this case the environmental court tied the mowing to applicant’s goal 

of preserving the field for planned agricultural use, and we uphold its decision on that basis. 

Finally, the environmental court’s conclusion that the barn was an accessory structure to 

the agricultural use—maintaining the land in a state that could support agricultural activities—is 

supported by the evidence as well as common sense. As the court explained, “[W]hen you get a 

 

 The Town ordinance includes a definition section which reads:

 Agricultural Use: The term “agricultural purpose” shall mean 

agriculture, farming, dairying, pasturage, and animal and poultry 

husbandry. The term shall not include the slaughtering of animals 

or poultry for commercial purposes except such as are grown or 

raised on the premises, nor shall it include the raising and keeping 

of animals or poultry for commercial purposes on lots less than 5 

acres. 

Although the Environmental Division did not expressly rely on this definition, its 

conclusion is consistent with the definition.
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tractor to do that work you should have a place to store it, and if you don’t have the place to store 

it, your tractor is not going to be around for very long.” 

Neighbor points to definitions of “agricultural land,” 32 V.S.A. § 3752(1), and “farming,” 

10 V.S.A. § 6001(22), in the Vermont Statutes and argues that the Environmental Division

should have looked to these definitions as guidance in defining agricultural use in the Town 

ordinance. To the extent that these definitions in unrelated statutes contemplate the growing of 

crops as a component of agriculture, the Environmental Division’s understanding—that 

maintaining and preparing the land to that end is also an agricultural activity—is not inconsistent 

with these other statutes. 

Affirmed.

BY THE COURT:

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Paul L. Reiber, Chief Justice

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Marilyn S. Skoglund, Associate Justice

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Beth Robinson, Associate Justice