Simendinger v. City of Barre

Katz, Supr. J.,

concurring and dissenting. I concur in all but one portion of the Court’s opinion. On the issue of “need,” I would hold, contrary to the Court’s conclusion, that the trial court’s findings were inadequate, and therefore remand for further findings on the issue consistent with the pertinent provisions of the City of Barre’s zoning ordinance.

Under the City’s ordinance, an applicant for a conditional use permit within a planned residential district must demonstrate, among other things, “the need for the use in the district primarily and the City of Barre secondarily.” Although the trial court’s decision reveals that it was aware of the provision, its analysis and findings on the question of need for the proposed convenience store were severely truncated. The court observed preliminarily that a showing of need does not require the planning commission, or the court, to make “any centralized economic decisions for the development of the City.” Its analysis then consisted, in its entirety, of the following:

Although there are a number of other grocery stores of various types in the City, some of which are within reasonable walking distance of the residents of this Planned Residential District, we cannot find that there is no need for this neighborhood grocery store. In particular, we find from the evidence that a store in this location will be used when other such stores are closed, in preference to traveling to a more distant store with convenient hours, and that it will be used by persons entering or leaving the City for whom it will be either the first or the last available store with such services.

This is deficient, in my view, in several respects. First, the rather convoluted conclusion that “we cannot find that there is no need for this neighborhood grocery store” does not equate to a finding that there was a need. The double-negative construction utilized by the court (“cannot find no need”) is simply not the equivalent of an affirmative finding of need, as required by the ordinance. See Chatham v. State, 265 S.E.2d 835, 837 (Ga. Ct. App. 1980) (‘“findings’ couched in the double negative fall short of. . . affirmative answers”). The ordinance required a showing by the applicant of a public need for the use, not a demonstration by the City of “no need.” See In re Molgano, 163 Vt. 25, 28, 653 A.2d 772, 774 (1994) (noting applicant’s burden of proof to satisfy zoning bylaw criteria for construction of office buildings). Thus, if for no other reason, I would reverse and remand for the requisite findings on this fundamental question.

Second, the court provided no analysis or support for its unstated assumption that evidence of potential “use” of the *655proposed convenience store was sufficient to establish a real showing of community need. It is only natural that a planned commercial enterprise will find some market, otherwise it would not be undertaken. If mere use were the equivalent of public need, however, the criterion would be rendered meaningless. See, e.g., Degnan v. Monetti, 509 A.2d 277, 282 (N.J. Super. Ct. App. Div. 1986) (reversing zoning board’s decision to grant variance, court held that mere showing of potential use of planned commercial development would render zoning ordinance “meaningless . . . [I]f there are special reasons for a variance because of the nature of the use it should be because the use inherently serves the public good or welfare.”). Thus, I would remand for sufficient findings on this point, as well.

Finally, the City’s ordinance plainly required a two-tiered analysis of need, with primary consideration to be accorded the criterion of need within the district, and secondary consideration to be accorded the question of need within the City as a whole. Nothing in the trial court’s findings, however, suggests that it actually engaged in the kind of balancing contemplated by the ordinance. Indeed, the findings — such as they are — suggest that the evidence was skewed in favor of a showing of need within the City rather than the district. There is some logical and evidentiary support for the court’s finding that a convenience store located at the “gateway” to the City might serve travelers just entering or leaving the City confines. Its finding that district residents would use the proposed store when others were closed, however, is eviscerated by the court’s subsequently imposed condition requiring the applicant to close at 9:00 p.m., the same time as other stores in the general area. Thus, the findings are deficient in their analysis of need under the particular framework established by the zoning ordinance.

This Court has observed, in a different context, that a mere recitation of facts in a trial court’s findings is not sufficient for meaningful appellate review; “it is important for the appellate court to know how the trial court weighed the facts and blended the standards to arrive at the conclusion. In other words, we need to review the explanation as well as the found facts to determine if the application of the criteria to the facts is sound.” Nickerson v. Nickerson, 158 Vt. 85, 89, 605 A.2d 1331, 1333 (1992). The court’s findings here fail this test. They provide neither a sufficient factual recitation nor an adequate explanation of how the court applied the ordinance criteria to the facts. Meaningful appellate review is thus frustrated.

I concede that this Court has some measure of discretion on whether to accept a deficient analysis, in circumstances suggesting the trial court recognized the existence of the issue. But we are here deciding whether a gasoline filling station should be imposed on a residential zone, where it may persist for decades. This is a significant issue. The City has not had its day in court on this issue. As we are remanding the case for other reasons, I would afford the City the opportunity for a reasoned decision demonstrating that the ordinance has been correctly applied.

Accordingly, I would reverse the trial court’s determination on the issue of need, and remand for additional findings. I am authorized to state that Justice Skoglund joins in this dissent.