Appeal of Martin ( 2003 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Gary Martin
& }
} Docket No. 249-11-02 Vtec
Town of Shrewsbury }
} Docket No. 21-2-03 Vtec
v }
Gary Martin
Decision and Order
In Docket No. 249-11-02 Vtec Appellant Gary Martin appealed from a decision of the
Development Review Board (DRB) of the Town of Shrewsbury, upholding the Zoning
Administrator= s Notice of Zoning Violation that a conditional use permit was necessary for his
firewood processing business use of a 40' x 60' building. In Docket No. 21-2-03 Vtec the Town
of Shrewsbury brought an enforcement action against Gary Martin to require him to refrain from
operating the firewood processing equipment at that location without applying for and obtaining
conditional use approval to do so.
Appellant-Defendant is represented by Cortland T. Corsones, Esq.; Interested Persons
Christopher and Catherine Morris are represented by John D. Hansen, Esq.; Interested Persons
JoAnne Browning and Kerry L. O= Hara appeared and represented themselves; and the Town of
Shrewsbury is represented by Mary C. Ashcroft, Esq. An evidentiary hearing was held in this
matter before Merideth Wright, Environmental Judge. The parties were given the opportunity to
submit written requests for findings and memoranda of law. Upon consideration of the evidence
and the written memoranda and proposed findings, the Court finds and concludes as follows.
Gary Martin owns a parcel of land on the north side1 of Tabor Road in the Rural Residential
zoning district, on which is located his residence; he acquired this property in 1984. The
boundaries of this property, which we will refer to as > the home parcel,= were not presented in
evidence. In 1988 the Town of Shrewsbury Zoning Regulations were adopted. As of 1988 Mr.
Martin was operating a firewood processing business on his home property to the north of the
road, processing about 100 cords a year with a portable wood splitter. He may also have been
splitting wood or storing split wood at or near an old barn located across Tabor Road from his
home parcel.
In the Rural Residential zoning district, the permitted uses are: schools; agriculture and good
forestry practices; single or two-family dwellings; accessory buildings; and cemeteries. The
conditional uses are: gravel operations; commercial outdoor recreation; public utilities; home
occupation; and wildlife refuge.
In 1992, Mr. Martin2 acquired a 16.69-acre parcel on the south side of Tabor Road, also in the
Rural Residential zoning district. He kept livestock on the property, which is a permitted
agricultural use in the district. Even if he processed firewood or cut or split wood brought from
elsewhere on this property as of his acquisition of it, that use of the property could not have
constituted a grandfathered non-conforming use of the property, because he acquired the
property after the Zoning Regulations had been adopted, and that was not an allowed use at the
time.
In March of 2001 Mr. Martin obtained a subdivision permit to divide this 16.69 southerly parcel
into two parcels, the more westerly of which was to be conveyed to others, and the more easterly
of which, a 6.61-acre parcel, he was to retain for his own use. As of the date of trial the westerly
property had not been conveyed.
On December 12, 2001, Mr. Martin applied both for a zoning permit to A build a 40' x 60' garage
and storage building@ and to the Development Review Board for a conditional use permit to A
build a 40' x 60' garage to store and maintain my logging and construction equip[ment] and to
house my firewood processor,@ on the 6.61-acre parcel. Based on the representations in the
applications and a site visit to the site of the proposed building, the Zoning Administrator
returned the filing fee for the conditional use permit and noted on the returned permit
application: A As business will not be conducted in the garage/barn I= ve decided not to ask you
for a conditional use permit.@
The Zoning Administrator proceeded to issue the zoning permit3 for the > 40' x 60' garage and
storage building.= In so doing, the Zoning Administrator seems somehow to have treated the
6.61-acre parcel as a residential parcel, even though it had no residence on it, was separate from
Mr. Martin= s home parcel, and was acquired after the Zoning Regulations went into effect, in
considering even whether it could have been eligible for a storage building for Mr. Martin= s
excavation equipment, as well as whether it could have been eligible for a conditional use permit
for a home occupation processing firewood.
Mr. Martin then constructed the garage and storage building at issue in the present case on the
6.61-acre parcel. It is a pole barn construction, the back two-thirds of which is enclosed and is
used to store his excavation, logging and construction equipment. The front third is open,
although he stated at trial his intention to fully enclose it (with entry ports protected by plastic
strip flaps for the logs) if he obtains approval to operate the equipment there. Mr. Martin has the
firewood processor set up in the front third and operates it there.
The Morris house and land is located to the south of and across a brook from that parcel; the
Morris driveway serves both the Morris home and the Martin garage and storage building. The
Browning house is located directly across Tabor Road from the driveway to the Martin garage
and storage building. The O= Hara house is located on the north side of Tabor Road, between the
Martin home parcel and the Browning house. Thus, the Martin home parcel appears to be located
both down the road and across the road from the Martin garage and storage building parcel.
In connection with the firewood processing operation, truckloads of logs are brought to the
property from off-site locations and unloaded with mechanical equipment into storage piles.
When needed for processing, the logs are loaded onto a truck and transported to the open-sided
section of the building. During the processing of a log, it is sawn into sections and then the
sections are split into firewood by a splitter. The firewood pieces are loaded onto trucks by a
conveyor belt for delivery to customers off the site. Most of the processing occurs in the winter
months, amounting to 30 to 35 truckloads of logs or about 500 cords of firewood a year.
The noise of operation of the firewood processing equipment, and to a lesser extent the smoke or
exhaust generated by the equipment, is detectable beyond the boundaries of the 6.61-acre lot, and
at a level sufficient to be audible within the Morris house, even with the windows closed, and to
disturb them, contrary to the requirements for a home occupation under ' 622.
On or about July 15, 2002, the Zoning Administrator sent Mr. Martin an undated Notice of
Zoning Violation advising him that he had 15 days to apply for a conditional use permit and that
failure to do so could subject him to fines for each day of violation. It did not advise him of his
appeal rights, but he did in fact appeal that notice to the DRB and then to this Court in Docket
No. 249-11-02 Vtec. Because it was undated and did not carry on its face the number of the
return receipt, the fact that Mr. Martin received and signed a return receipt does not prove his
receipt of that particular notice, as he received other correspondence from the Town in the same
time frame regarding other projects.
If Mr. Martin had been processing firewood with a wood splitter on his home parcel, as of the
date of enactment of the zoning regulations, that activity for his own household use would have
been allowed as accessory to his residential use. That activity for sale to others might have either
qualified as a business use of the home parcel which would have been allowed to continue as a
pre-existing non-conforming use, or might have qualified as a home occupation under ' ' 413 and
622 if it met those standards. We note that a non-conforming use that is discontinued may not be
resumed without approval. ' 250. Similarly, if he had built the garage and storage building on the
home parcel, it might have qualified for the permitted use category of > accessory building,= if it
was incidental and subordinate to the primary residential use of the parcel.
However, even if the 6.61-acre parcel were contiguous to the Martin home parcel, any pre-
existing nonconforming use of the home parcel does not transfer to a later-acquired parcel,
whether it is contiguous or merely nearby. See, e.g., In re Appeal of Deso, Docket No. 2000-237
(Vt. Supreme Ct., Feb. 8, 2001) (entry order of three-judge panel).
Moreover, on a separate parcel such as the 6.61-acre parcel at issue in this appeal, there was no
principal use or building on the parcel for this proposed building to be accessory to; that is, the
proposed garage and storage building was the principal use being proposed for the parcel, and
should have been analyzed as such. It does not fall within any of the permitted use categories for
the zoning district. Nor could it properly have been considered for conditional use approval as
within the use category of > home occupation= on that separate parcel, because a > home
occupation= is defined as using a minor portion of a dwelling for an occupation which is
customary in residential areas and which does not change the character thereof. ' 413 (Emphasis
added). Section 622 extends the home occupation use category only to operations wholly within
the dwelling or an accessory building. Because of this definition, in fact the building did not fall
within any category eligible to have received the zoning permit issued to it by the Zoning
Administrator as a > garage and storage building.= However, even if that permit was incorrectly
issued, it was not appealed and has become final. Therefore, Mr. Martin was authorized to
construct the building and is authorized to use it for storage and maintenance of his logging,
excavating and construction equipment, and at least to house, if not also to operate, his firewood
processing equipment.
Mr. Martin argues that the Town should be estopped from requiring him to obtain conditional
use approval to operate the firewood processing equipment under the shelter of the open end of
the building, because by applying to A house@ that equipment rather than to A store@ or to A
maintain@ it, he meant the Zoning Administrator to understand that he wanted to operate it there
as well.
Estoppel of a town is disfavored, and in any event the circumstances of this case do not give rise
to an estoppel4. The Town did not know the true facts, that Mr. Martin intended to operate the
commercial firewood processing equipment at the garage and storage building. Moreover, Mr.
Martin did know the true facts, that is, it was his intention to operate the equipment there, yet he
did not request approval of any processing operation at the site, even after the Zoning
Administrator had stated in writing her understanding that there would be no business use of the
site. It was not reasonable for him to interpret A business use@ of the site to mean customers
coming to the property.
Rather, as in Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288 (1981),
the application for the zoning permit only requested approval of a Agarage and storage
building,@ and therefore garage and storage uses were all that was approved for the building
itself. Further, based on that application, the Zoning Administrator reasonably interpreted the
concurrent conditional use permit application, which added a specific reference that the building
would be used to > house= the firewood processing equipment, as well as to store and maintain
the logging and construction equipment, to mean that none of the equipment was proposed to be
used in an on-site processing operation. Appellant did not prove that the common use of the verb
A to house,@ which is not otherwise defined in the Zoning Regulations, carries the meaning of >
to operate.= Rather, the common meaning of the verb A to house@ carries the meaning of >
storing,= > enclosing= or > sheltering.=
Appellant also argues that at the Zoning Administrator= s site visit, she saw piles of logs and the
firewood processing equipment already located outdoors on the 6.61-acre parcel, and therefore
that she should have known that he intended to conduct the firewood processing operation at that
location in the new building. However, nothing about the location of the equipment or the logs
on the property was inconsistent with the proposed use of the proposed building to store,
maintain or house any of the equipment or, indeed, to store processed firewood that had been
processed elsewhere.
Based on the foregoing, it is hereby ORDERED and ADJUDGED in Docket No. 249-11-02 Vtec
that a conditional use permit was necessary for Mr. Martin= s commercial firewood processing
use of the 40' x 60' building, to the extent that that use can be approved at all on the property he
acquired in 1992. This ruling is without prejudice to any application Mr. Martin may wish to
make to conduct the firewood processing operation on his home parcel as a home occupation or
as a pre-existing nonconforming business use. It is hereby ORDERED and ADJUDGED in
Docket No. 21-2-03 Vtec that Gary Martin is ordered and enjoined to refrain from operating the
firewood processing equipment on the property he acquired in 1992, until or unless he has
obtained all required permits to do so. However, due to the defects in the Notice of Alleged
Violation, we will not impose a monetary penalty for his violation of that requirement prior to
today= s resolution of the contested legal issue. Any violation of that requirement after today= s
order may be the subject of an additional enforcement action, as well as an action by the Town or
by the neighbors under 24 V.S.A. ' 4470(c).
Dated at Barre, Vermont, this 11th day of August, 2003.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
In testimony Mr. Martin stated this ‘home place’ included land on both sides of Tabor Road.
We note that even if it does, that land is separate from the parcel on the south side of Tabor Road
which he acquired in 1992.
2.
We will refer to Mr. Martin in the singular as he is the only appellant or defendant in these
two cases; the property is or was held by Gary and Amanda Martin.
3.
The zoning permit application contains the following standard language over the applicant’s
signature: "It is understood and agreed that I will abide by the Shrewsbury Zoning Regulations . .
. . The permit is voided in the event of misrepresentation. . . ."
4.
We note that even in the rare cases in which estoppel has been allowed against the
government in a zoning or building code context, the estoppel would not result in the applicant’s
being granted the permit in violation of the code. See, My Sister’s Place v. City of Burlington,
139 Vt. 602, 609-610 (1981), in which the permit was still denied; the City was simply held
liable for damages resulting from the applicant’s reliance on the city employee’s incorrect
information that a restaurant could be built in that location.