Tyler Self-Storage Units Permit ( 2010 )

STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
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In re Tyler Self-Storage Units Permit } Docket No. 189-9-09 Vtec
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Decision on Cross-Motions for Summary Judgment
This matter arose after the Town of Dorset Zoning Board of Adjustment (“ZBA”) denied
an application filed by Bradford Tyler (“Applicant”) for a zoning permit to construct and operate
a self-storage facility with seventy-two rental bays on property located at 340 Vermont Route 30
in the Village Commercial Zoning District of the Town of Dorset (“Town”). Applicant
thereafter filed a timely appeal of the ZBA’s decision to this Court. A group of sixty-three
property owners and/or voters in the Town (collectively “Neighbors”) also filed an appeal in this
matter, generally expressing opposition to the proposed project.
Neighbors are represented by Robert E. Woolmington, Esq.; Applicant is represented by
David R. Cooper, Esq.; the Town, which has entered an appearance in these proceedings, is
represented by Joseph J. O’Dea, Esq.
Neighbors and Applicant have filed cross-motions for summary judgment, raising a
single issue: whether Applicant’s proposed self-storage facility is a permitted use in the Village
Commercial Zoning District (“VC District”). The Town has not filed a response to either
motion, but the principal parties to this litigation have filed their respective memoranda in
opposition, making the pending motions ripe for review.
Factual Background
For the sole purpose of putting the pending cross-motions into context, we recite the
following facts, all of which we understand to be undisputed:
1. Applicant owns and resides on a 5.6-acre property located at 340 Vermont Route 30 in
the VC District of Dorset.
2. On January 30, 2009, Applicant filed an application for a zoning permit to construct three
self-storage buildings on his property. Each proposed building would be one-story tall, twenty
feet wide, and one hundred feet long; each 2,000-square-foot building would house twenty-four
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storage bays, for a total of seventy-two bays. Applicant intends to rent the storage bays to
individual customers for their personal storage needs.
3. “Retail sales/rentals” are permitted uses in the VC District, subject to site development
plan approval. Town of Dorset Zoning Bylaws § 6.3.4(b)(3) [hereinafter “Bylaws”].
4. On February 13, 2009, the Town Zoning Administrator referred Applicant’s application
to the Town Planning Commission for site development plan review. The Commission approved
Applicant’s site development plan by written decision on April 16, 2009. This decision was not
appealed and has therefore become final. 24 V.S.A. § 4472(d).
5. Following site plan approval, the Zoning Administrator on May 21, 2009, issued
Applicant Zoning Permit No. F-3-09, which authorized the construction of three self-storage
buildings on Applicant’s property.
6. Neighbors appealed the Zoning Administrator’s decision to the ZBA on June 4, 2009,
contending that a self-storage facility is not “retail sales/rentals,” as that phrase is used in Bylaws
§ 6.3.4(b)(3). A public hearing was held, and on August 31, 2009, the ZBA issued a written
decision that voided Zoning Permit No. F-3-09. Four members of the ZBA determined that
Applicant’s self-storage facility did not constitute a permissible use in the VC District; three
members dissented; the two remaining members of the nine-member ZBA did not vote.
7. After Applicant voiced concerns about the validity of the ZBA’s decision, Neighbors
appealed to this Court on September 29, 2010. Neighbors contend that, if the ZBA’s decision
was invalid, then the Zoning Administrator’s decision to issue the permit was in error and should
be voided.
8. Applicant filed a cross-appeal on September 30, 2009, contending that the ZBA’s
decision to void the zoning permit does not constitute a valid decision because it was not reached
by a majority of the nine-member ZBA.1 Even if the ZBA’s decision was valid, Applicant
maintains that the proposed self-storage facility is a permitted use in the VC District, and he
requests that Permit No. F-3-09 be reinstated.
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Applicant’s notice of appeal implied that his application should be deemed approved by virtue of the ZBA’s
failure to reach a decision supported by the majority of its members. This argument is noticeably absent from any
subsequent filings, which we take to mean that Applicant has chosen not to pursue relief under the deemed approval
doctrine. See generally, In re McEwing Servs., LLC, 2004 VT 53 ¶ 21, 177 Vt. 38 (noting that technical defects in
the decision-making process do not warrant the application of the deemed approval doctrine).
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Discussion
The sole issued raised by the pending motions is whether Applicant’s proposal to
construct and operate a self-storage facility with seventy-two rental bays, which he intends to
rent to individual customers for their personal storage needs, is a permitted use in the VC
District.
The Bylaws permit a number of uses in the VC District; the following use is permitted,
subject to site plan approval:
Retail sales/rentals. All sales, storage and display of merchandise shall occur
within an enclosed structure, except for temporary display of merchandise
outdoors, on-site during the operating hours of the business or from 8:00 a.m. to
6:00 p.m., whichever is later, provided that all such merchandise is stored in a
building or screened storage area at the close of business each day. Agricultural
products are exempted from the outdoor storage restrictions. No sale of
automotive or diesel fuel is permitted.
Bylaws § 6.3.4(b)(3). Neighbors interpret this provision as authorizing “retail sales” and “retail
rentals,” and they contend that a self-storage facility is not a “retail rental” use. Applicant, on the
other hand, interprets § 6.3.4(b)(3) as permitting “retail sales” and all “rentals.” He contends that
the proposed self-storage facility is clearly a permitted rental activity. Applicant argues in the
alternative that, if Bylaws § 6.3.4(b)(3) only authorizes “retail rentals,” he is nonetheless entitled
to a zoning permit because his proposed self-storage facility constitutes a “retail rental” use.
Both Applicant and Neighbors seek a summary ruling on these legal questions. Neither party
suggests that a fact material to these legal questions is in dispute; the parties merely dispute the
proper application of the applicable law to the undisputed material facts.
Our review of the pending motions must begin with the reminder that summary judgment
is appropriate only “when there are no genuine issues of material fact and, viewing the evidence
in a light most favorable to the non-moving party, the moving party is entitled to judgment as a
matter of law.” In re Carter, 2004 VT 21, ¶ 6, 176 Vt. 322; V.R.C.P. 56(c). “When both parties
move for summary judgment, each is entitled to the benefit of all reasonable doubts and
inferences when the opposing party’s motion is being judged.” City of Burlington v. Fairpoint
Commc’ns, 2009 VT 59, ¶ 5 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
We review the foregoing arguments in this light.
When called to interpret zoning bylaws, we employ the familiar rules of statutory
construction. In re Vt. Nat’l Bank, 157 Vt. 306, 312 (1991). The Court’s paramount goal is “to
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discern and give effect to the intent of the [bylaws’ drafters].” Miller v. Miller, 2005 VT 89,
¶ 14, 178 Vt. 273. “The definitive source of [their] intent is the [bylaws’] language, by which we
are bound unless it is uncertain or unclear.” In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176
Vt. 584 (mem.). Words are therefore construed “according to their plain and ordinary meaning,
giving effect to the whole and every part of the ordinance.” In re Stowe Club Highlands, 164 Vt.
272, 279 (1995). If the plain language “resolves the conflict without doing violence to the
legislative scheme, there is no need to go further.” In re Casella Waste Management, Inc., 2003
VT 49, ¶ 6, 175 Vt. 335 (quoting Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986)).
“If there is no plain meaning, we attempt to discern the intent from other sources without being
limited by an ‘isolated sentence.’” Stowe Club Highlands, 164 Vt. at 279 (quoting Williston
Citizens for Responsible Growth v. Maple Tree Place Assocs., 156 Vt. 560, 563 (1991)). If any
uncertainty exists, however, we must construe the land use regulations in favor of the
applicant/property owner, since zoning bylaws are considered to be in derogation of common
law property rights and therefore must be “strictly construed.” In re Weeks, 167 Vt. 551, 555–56
(1998) (citations omitted).
As is explained more fully below, we conclude that the plain language in Bylaws
§ 6.3.4(b)(3)—“retail sales/rentals”—evidences that the drafters intended to permit in the VC
District only “retail rentals,” not all rental activities. We start by noting that a virgule (i.e., a
forward slash) is not itself ambiguous. It is used to separate alternative choices, and a number of
other jurisdictions have concluded that a virgule unequivocally symbolizes “or.” See, e.g.,
Danco, Inc. v. Commerce Bank/Shore N.A., 675 A.2d 663, 666 (N.J. Super. Ct. App. Div. 1996)
(citing cases). By replacing the virgule in § 6.3.4(b)(3) with an “or,” we derive a provision that
authorizes “retail sales [or] rentals.”
Next, by applying a common rule of statutory construction, we conclude that retail is an
adjective that modifies both sales and rentals. The rule of ejusdem generis explains that “[w]hen
words of a statute bearing a specific description are followed by words of more general import,
the sense of the adjective first used is applied to all the words that follow. The latter words are
held to include only those things similar in character to those specifically defined.” Kalakowski
v. John A. Russell Corp., 137 Vt. 219, 224 (1979); In re Wal-Mart Stores, Inc., 167 Vt. 75, 84
(1997) (“[G]eneral terms that follow specific terms are limited or restricted to those earlier
specified, and will not include any classes greater than those to which the particular words
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belong.”). In other words, the word “retail” is applied to all the words that follow, such that the
word “rental” is limited to a class of uses similar to “retail sales.” Although not a model of
clarity, we conclude that Bylaws § 6.3.4(b)(3) is unambiguous when construed according to the
principle of ejusdem generis. See, e.g., Kalakowski, 137 Vt. at 223–24 (concluding that “retail”
modified “sales” in a provision that conditionally permitted a “[r]etail store, stand, sales and
sales rooms”). It is clear from the statutory rules we employ here that the drafters intended
§ 6.3.4(b)(3) to authorize “retail sales [or retail] rentals” in the VC District.2
This interpretation is more favorable than one permitting all rental uses in the VC
District. Not only does it effectuate the drafters’ intent, but it also comports with the overall
zoning scheme. The organization of the Bylaws evidences the intent to locate certain rental
activities within the Town’s two other commercial zoning districts: “rentals of vehicles,
equipment and machinery” are permissible in the separate Commercial-Industrial Two (“CI-2”)
District, and “wholesale distributors” are permissible in the Commercial-Industrial One (“CI-1”)
District. Bylaws §§ 6.2.2(b)(7) & 6.2.3(5). Allowing all rental activity to occur within the VC
District, including wholesale rentals and industrial machinery rentals, would undermine the
Town’s efforts to limit such rental activities to the CI-1 and CI-2 Districts. Accordingly, we
conclude that the drafters intended “retail rentals” to be the only rental activities permitted in the
VC District.
While we reject Applicant’s argument that all rental uses are permitted in the VC District,
Applicant is not foreclosed from securing a zoning permit for his proposed use. Applicant’s
proposed self-storage facility is permissible if it qualifies as a “retail rental,” as that phrase is
used in Bylaws § 6.3.4(b)(3). Unfortunately, the Bylaws do not define “retail rentals.” They do
define “retail,” but the definition causes some consternation for the Court because it is phrased
exclusively in terms of sales. “Retail . . . [r]efers to a shop or store for the sale of goods,
commodities, products or services directly to the consumer, as opposed to wholesale.” Bylaws
app. A. This definition thus provides little indication that rental activities were to be included as
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We note here that the drafters utilize a virgule throughout the Bylaws, and its repetitious use adds support to our
conclusion that the drafters intended “retail sales/rentals” to authorize “retail rentals,” as opposed to all “rentals.”
For example, “[a]n automobile maintenance/repair business” is a conditional use in the VC District. Bylaws
§ 6.3.5(3). The most reasonable interpretation of this provision is to conditionally permit only “automobile repair
businesses,” not all “repair businesses.”
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retail uses.3 But the drafters must have intended the word “retail” to undertake some meaning in
Bylaws § 6.3.4(b)(3) as the word is used to modify “rentals.” See In re Miller, 2009 VT 36, ¶ 14
(“We have long presumed that all language in a statute or regulation is inserted for a purpose.”
(quotations and citations omitted)). We must therefore determine what constitutes “retail
rentals,” as that phrase is used in Bylaws § 6.3.4(b)(3), and two different analytical paths lead us
to one conclusion. As is discussed below, we conclude that the “retail rental” uses allowed in the
VC District involve small-quantity rentals directly with a consumer, as opposed to wholesale
rentals.
On the one hand, we can look to the plain meaning of the phrase “retail rentals” for
guidance. When words or phrases are not defined in the Bylaws, they “retain their dictionary
meaning as found in any readily available dictionary, unless such meaning[] run[s] counter to the
purposes and objectives” of the Bylaws or Town Plan. Bylaws app. A. The dictionary most
readily available to the undersigned does nothing to illuminate the meaning of “retail rentals.”
Not only is the full phrase absent from the dictionary, but “retail” is also defined by the
dictionary in terms of sales: “[t]he sale of commodities in small quantities to the consumer.” The
American Heritage Dictionary of the English Language 1109 (1st ed. 1979). Relying upon the
dictionary to provide meaning for the phrase “retail rentals” is ultimately unhelpful because it
renders a self-contradicting phrase.
Despite the internal inconsistencies, we believe that the drafters’ true intent can be
derived from the aforementioned definitions of “retail.” It is apparent from the two definitions
that “retail” is intended to distinguish wholesale transactions from small-quantity transactions
with an individual consumer. Both definitions emphasize transacting directly with the consumer.
With this indirect guidance in mind, we conclude that the use of “retail” to modify “rentals” in
Bylaws § 6.3.4(b)(3) serves the purpose of distinguishing permissible rental activity from
impermissible industrial or wholesale rentals.4
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One alternative interpretation, not suggested by either party or specific reference in the Bylaws, is that the
provision allows “service rentals” because the definition of retail includes service providers. Applicant’s proposed
project may constitute a “service rental” in that he proposes to store individual customers’ belongings in individual
storage units on his property.
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Contrary to Applicant’s belief, the term “wholesale rentals” is not oxymoronic. See, e.g., Industrial Strength, AV
Wholesale Rental, http://www.industrialstrengthstaging.com/ (last visited July 8, 2010) (providing wholesale rentals
to production companies).
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On the other hand, the literal definition of “retail” in the Bylaws is not controlling when it
clearly defeats the drafters’ intent. See Delta Psi Fraternity v. City of Burlington, 2008 VT 129,
¶ 7, 185 Vt. 129 (explaining that legislative intent must prevail when “the literal meaning of the
words is inconsistent with legislative intent”). “It is a fundamental and well settled rule of
construction, that the true meaning of the Legislature is to be ascertained not from a literal sense
of the words used, but from a consideration of the whole and every part of the statute, the subject
matter, the effect and consequences and the reason and spirit of the law.” Noble v. Fleming’s
Estate, 121 Vt. 57, 59 (1959). Although the literal definition of “retail” excludes rental activity
from retail uses, the spirit of the definition suggests that “retail rentals” involves rental
transactions directly with the consumer, as opposed to wholesale rentals. It appears clear to this
Court that the purpose behind using the term “retail” in Bylaws § 6.3.4(b)(3) was to distinguish
permissible retail transactions from impermissible wholesale transactions, because “retail”
involves transacting “directly with the consumer as opposed to wholesale.” Bylaws app. A.
In determining that “retail rentals” involves small-quantity rentals directly with a
consumer, we specifically reject Neighbors argument that permissible retail uses must operate as
a store or shop to satisfy the definition of “retail” in the Bylaws. See Bylaws app. A. (defining
retail as “a shop or store for the sale of goods, commodities, products or services”). As we
discussed above, the Bylaws’ literal definition of “retail” does not apply to rental activities; it is
phrased in terms of sales. Further, even if “retail rentals” were only permitted in a store or shop,
we conclude that Applicant’s proposed self-storage facility constitutes a store or shop. We have
no suggestion in the record before us that it does not.
The Bylaws do not define either term, but the dictionary defines a store as “[a] place
where merchandise is offered for sale; a shop.” The American Heritage Dictionary of the
English Language 1271 (1st ed. 1979). A shop is “a small retail store or specialty department in
a larger store,” but also “[a]ny commercial or industrial establishment.” Id. at 1197. Applicant
provides a plethora of definitions from a variety of dictionaries that derive a similar meaning: a
shop or store is a business or commercial enterprise. Under this definition, Applicant’s proposed
self-storage facility is a store or shop; it is a commercial establishment.
Neighbors next contend that retail sales and retail rentals must deal in merchandise to be
permitted in the VC District. In support, they argue that the remaining language in Bylaws
§ 6.3.4(b)(3) restricts permissible retail uses to those that deal in merchandise. It says:
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All sales, storage and display of merchandise shall occur within an enclosed
structure, except for temporary display of merchandise outdoors, on-site during
the operating hours of the business or from 8:00 a.m. to 6:00 p.m., whichever is
later, provided that all such merchandise is stored in a building or screened
storage area at the close of business each day.
Bylaws § 6.3.4(b)(3). Although the provision refers to merchandise, it does not require all retail
activities to deal in merchandise; it merely restricts where merchandise can be sold, stored, or
displayed if the retail use deals in merchandise. Applicant does not intend to rent merchandise,
nor does he intend to continuously display merchandise outside. Further, not all permissible
retail uses deal in merchandise. In fact, the definition of “retail” expressly encompasses
“service” providers. See Bylaws app. A (defining retail). Interpreting Bylaws § 6.3.4(b)(3) to
prohibit retail service providers within the VC District because they do not generally sell or rent
merchandise would render meaningless that part of the definition of retail. We cannot adopt
such a construction. In re Dunnett, 172 Vt. 196, 199 (2001) (refusing to interpret a statute in a
way that renders language surplusage). Thus, we conclude that Applicant’s proposal does not
conflict with the restrictions contained in § 6.3.4(b)(3).
In light of the foregoing discussion, the Court interprets Bylaws § 6.3.4(b)(3) to permit
“retail sales or retail rentals” in the VC District. “Retail rentals” are activities that involve
renting directly to a customer, as opposed to wholesale or industrial rentals. Any on-site
merchandise must be stored within the building unless temporarily displayed outside during
daylight operating hours, but a retail business need not deal in merchandise to be permitted. This
interpretation effectuates the drafters’ intent and is the most reasonable construction of the
Bylaws. See Fraser v. Sleeper, 2007 VT 78, ¶ 12, 182 Vt. 206 (explaining that we have a duty to
interpret the bylaws “in favor of [a] reasonable construction”).
Conclusion
For all the reasons more fully discussed above, we GRANT Applicant summary
judgment and DENY Neighbors summary judgment, concluding that Applicant’s proposed self-
storage facility is a permitted use in the VC District. The three buildings and seventy-two rental
bays, which will be rented to individual customers for their personal storage needs, qualify as a
retail rental use that is permitted under Bylaws § 6.3.4(b)(3). Accordingly, we vacate the ZBA’s
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determinations, and hereby reinstate Zoning Permit No. F-3-09, first issued by the Town of
Dorset Zoning Administrator on May 21, 2009.5
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court concerning this appeal.
Done at Berlin, Vermont, this 9th day of July 2010.
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Thomas S. Durkin, Judge
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Neighbors request that the Court abstain from issuing a judgment that grants Applicant a zoning permit,
explaining that Applicant’s proposal may be subject to additional zoning requirements. Whether Applicant’s
proposal requires additional zoning permits, however, is not an issue that has been presented for our review in this
appeal. The only issue raised by the parties’ Statement of Questions is whether Applicant’s proposal is a permitted
use in the VC District. By answering in the affirmative, this Decision addresses all legal issues presented in this
appeal. Since our legal analysis causes us to conclude that the proposed project fits within the term “retail rentals,”
as used in Regulations § 6.3.4(b)(3), we have reinstated the original zoning permit issued on May 21, 2009.
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