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Dispute Over Property Restriction’s Meaning Resolved in Favor of Developer/Drafter of Restriction

In In re Wagner & Guay Permit, 2016 VT 96, the Supreme Court affirmed the issuance of a zoning permit to Philip and Barbara Wagner and Christopher Guay to merge two lots in a residential subdivision in order to construct a single-family residence.

Issue: The Grand Isle Planning Commission originally approved a six-lot residential subdivision proposed by the Wagners. Importantly, the Wagners’ original plan provided that homes in the subdivision would be constructed “within the tree line,” which boundary was illustrated on the original subdivision plan as a scalloped line. The Wagners retained Lots 3 and 4 in the sub-division, and ultimately sought to merge and sell those two lots to Mr. Guay. The Development Review Board (“DRB”) approved the Wagners’ zoning permit application. The owner of Lot 2 (referred to only as “Neighbor” in the Court decision) appealed the DRB’s decision on the basis that, among other things, Mr. Guay proposed to construct a home that was not “within the tree line” as required by the original subdivision plans. In affirming the DRB’s decision, the Environmental Division identified that the primary area of contention between the parties was whether the “tree line” should be interpreted to mean the edge of the tree canopy or the location of the tree trunk in the first of a line of trees dividing the forested area from an open meadow. The trial court determined that it was the Wagners’ intent when preparing the original sub-division plan, that “the tree line” should mean the line created by the outer canopy of the line of trees. Neighbor appealed.

Holding: The Court affirmed the trial court’s decision. In doing so it rejected Neighbor’s argument that the term “within the tree line” is ambiguous and must be construed against the drafter (the Wagners). The Court noted that Neighbor’s argument that permit conditions should be interpreted under the same principles as private contracts has no basis in law. Rather, permit conditions should be construed in accordance with the regular rules of statutory construction. As such, the Court determined that it was its obligation to implement the intent of the draftsperson (the Wagners) in creating the condition. The trial court previously concluded based upon the evidence presented at trial, including the testimony of Mr. Wagner, that the phrase “within the tree line” was intended to mean the line created by the tree’s canopies. The Court found no error in this determination and deferred to the trial court decision in identifying the intended meaning of the permit condition and, therefore, also affirming the issuance of the zoning permit allowing the merger of the lots and construction of the single-family dwelling.

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