Sheldrick Building Permit ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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Sheldrick Building Permit } Docket No. 185-9-07 Vtec
(Appeal of Bennett and Naritomi) }
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Decision on Pending Motions for Summary Judgment
Appellants Stuart Bennett and Patti Naritomi (“Appellants”) appealed from a decision of
the Town of Charlotte Zoning Board of Adjustment (“ZBA”) upholding a building permit issued
to Appellee-Applicants Donald and Heidi Sheldrick for the construction of a truck-repair
workshop. Appellants are represented by Vincent A. Paradis, Esq.; Appellee-Applicants are
represented by Liam L. Murphy, Esq.; the Town of Charlotte is represented by John H. Klesch,
Esq.; and Annemarie Curlin, appearing in this proceeding as an interested person, is representing
herself.
Now pending before the Court is Appellants’ motion for summary judgment on Question
one from their Statement of Questions. Appellee-Applicants filed a cross-motion for summary
judgment on Question one and also moved for summary judgment on Questions two and three
from Appellants’ Statement of Questions. Each party offered objections to the other party’s
competing motions. Both motions are now ripe for the Court’s consideration.
Factual Background1
A.) Site Description and Procedural History
1. Donald and Heidi Sheldrick (“Applicants”) own a four-acre parcel of land at 1091
Roscoe Road in the Town of Charlotte (“Town”). The property is located in the Rural Zoning
District under the Town of Charlotte Land Use Regulations (“Regulations”).2 Presently situated
on Applicants’ property is a single family dwelling, a detached garage, a horse barn, a run-in
shed for horses and other animals, and a “temporary” garage.
1
All facts recited or referenced here are undisputed unless otherwise noted. For purposes of the motion for
summary judgment only, we view the material facts in a light most favorable to the non-moving parties. V.R.C.P.
56(c). We are not yet at the stage of making specific factual findings. Thus, our recitation here should not be
regarded as factual findings See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14, 24 (citing Fritzen v.
Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000)(mem.)).
2
The Town filed with the Court a copy of the Town Regulations, adopted March 7, 2006.
2. The existing dwelling on the property, constructed in 1999, is 28’ x 32’ and includes a
12’ x 8’ enclosed mudroom, a 6’ x 8’ front porch, and a 12’ x 16’ rear deck. Thus, the footprint
of the existing dwelling comprises approximately 1,232 square feet. With three floors of living
space, the cumulative floor space of the dwelling comprises approximately 2,832 square feet.
3. The dimensions of the outbuildings on the property are as follows: the detached garage is
24’ x 40’ with a footprint of 960 square feet; the horse barn is 12’ x 60’ with a footprint of 720
square feet; the run-in shed for animals is 10’ x 12’ with a footprint of 120 square feet; and the
“temporary” garage is 14’ x 32’ with a footprint of 488 square feet. Therefore, the total building
coverage on the property, including the dwelling and the existing outbuildings is 3,520 square
feet, which represents approximately 2% building coverage for the four-acre parcel.
4. With the exception of the temporary garage, all of the existing buildings on Applicants’
property are used as or in connection with their primary residence and to house their personal
hobbies, including the raising of horses and other animals. None of these existing buildings
(again, with the exception of the temporary garage) are used for commercial or business-related
purposes.
5. All structures on the property comply with the applicable height and set back
requirements as set forth in Regulations §§ 3.5 and 3.6.
6. In January of 2007, Applicants received a letter of determination from the Town of
Charlotte Zoning Administrator giving notice that the Zoning Administrator’s drive-by
inspection of Applicants’ property revealed nine vehicles stored on the property, the majority of
which were commercial trucks. The letter of determination informed Applicants that approval
from the Planning Commission and ZBA was required for such use—which the Zoning
Administrator determined to be a “contractor’s yard”3 as defined in the Regulations.
7. After receipt of the Administrator’s letter of determination, Applicants advised that they
were conducting a “home occupation” on their property, a use which they believed did not
require a zoning permit. The Zoning Administrator replied that to fit within the definition of the
Regulations for a home occupation (Regulations § 4.11(A)(1), defining the standards for a use
identified as “Home Occupation I”), all vehicles need to be inside a structure. Applicants did not
pursue approval of a “contractor’s yard” use for their property.
3
A “contractor’s yard” is defined in Regulations § 10.2 as “a parcel of land with or without buildings to be used for
the storage of equipment, materials and/or vehicles used in the operation of construction, landscaping and similar
uses.”
2
8. Thereafter, in March of 2007, Applicants submitted a zoning permit application to the
Town for the construction of a 35’ x 50’ garage/workshop (“Proposed Workshop”) in which Mr.
Sheldrick would repair and work on commercial trucks and related equipment. The Proposed
Workshop would have 16’ sidewalls, a 24’ 8” peak, sit on a concrete slab and is designed to
resemble the existing horse barn. The footprint for the Proposed Workshop will be 1,750 square
feet.
9. On March 28, 2007, the Zoning Administrator issued Permit #07-14-TM for the Proposed
Workshop as an accessory building. The Applicants filed a copy of Permit #07-14-TM as
Exhibit A in support of their pending motion.
10. Appellants reside at 1154 Roscoe Road, which is across the road and easterly from
Applicants’ property. On April 10, 2007, they appealed the Zoning Administrator’s approval of
the Proposed Workshop to the ZBA.
11. By written decision dated August 9, 2007, the ZBA affirmed the decision of the Zoning
Administrator, thus denying their appeal. Appellants thereafter filed a timely appeal from the
ZBA determination with this Court.
B.) Home Occupation considerations
12. Applicants intend to conduct a truck repair business on the property within the Proposed
Workshop. Since at least 2004, Mr. Sheldrick has repaired truck drive-shafts and machinery in
the existing garage, outside the garage, and later on, in the temporary garage. During this period,
Applicants purportedly contacted the Town to inquire whether any permits were required for
their business. The Town sent pertinent sections of the Regulations that relate to a home
occupation and informed Applicants that if they complied with these sections, a permit was not
required.4
13. Applicants assert compliance with the sections pertaining to Home Occupation I,5 since
they are the only employees; the number of business-related vehicle trips has never exceeded
twelve per day; and their occupational activities will occur wholly within an accessory
4
Regulations § 4.11(A)(1) defines Home Occupation I as “includ[ing] home occupations that employ only the
resident(s) of a dwelling; that occurs within a minor portion of the dwelling and/or within an accessory structure to
the dwelling; and generates no more than 12 business-related vehicle trips per day. This type of home occupation
does not require a zoning permit.”
5
Applicants also constructed a temporary garage—see paragraph 15 of this Decision—in order to conduct their
repair business during the pendency of this appeal.
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building—i.e. the Proposed Workshop. Appellants have not put forth evidence to contradict
Applicants’ first two assertions here, but do dispute the third.
14. Mr. Sheldrick represents that he will repair trucks identified as Class 5 to Class 7 trucks,
and on occasion, will repair a truck from the Class 8 category. Applicants provided a copy of a
truck classification chart as Exhibit D. Mr. Sheldrick further represents that he will conduct all
repair work wholly within the Proposed Workshop.
15. In October of 2007, Applicants received permission from the Town to construct a
“temporary” garage,6 as described in ¶ 3 above, in order to conduct their home occupation truck
repair business. The letter “confirm[ed] that the repair of trucks by Mr. Donald Sheldrick at
1091 Roscoe Road, Charlotte . . . complies with the requirements of Home Occupation, Level 1,
under Section 4.11(A) of the Charlotte Land Use Regulations and does not need any building or
zoning permit” provided that there were no additional employees, the repair work was done
within an accessory structure, there were not more than 12 vehicle trips per day, and that all
performance standards were met. The Town’s decision was posted in a public location for the
statutory period and was not appealed. Appellants challenge the legal significance of this land
use determination, complaining that they received no actual notice of Appellants’ request for the
Town determination, and only learned of the determination after the appeal period had expired.
16. The Proposed Workshop is not intended for human occupancy and will not contain a
bathroom or other facilities requiring a municipal or state waste disposal permit, pursuant to
Regulations § 3.16.
17. Home Occupation I is not a use for which minimum off-street parking is required under
Regulations § 3.11 or Table 3.1.
18. No sign is planned for Applicants’ property or their proposed Home Occupation I use.
Regulations § 3.13
19. In their efforts to show that their Proposed workshop and home occupation use of it
complies with the performance standards established in Regulations § 3.12, Applicants
represented that the loudest piece of equipment to be used on site will be a compressor. In June
of 2007, Applicants used a digital sound level meter to test the decibel level of the compressor
from various points on the property. At the end of their 170 foot driveway, Applicants
represented that they recorded a 52 decibel sound level emanating from the existing garage with
6
It is unclear from Applicants’ current representations whether they intend to dismantle the temporary garage, upon
a final determination that they may construct the Proposed Workshop.
4
the door open. Applicants also recorded a 68 decibel sound level from an idling truck at a
distance of 25 feet.
20. Applicants also contend that their home occupation will not create any excessive or
nuisance-level smoke, dust, noxious gases, air pollution, heat, cold, moisture, mist, fog,
condensation, electromagnetic or electronic disturbances, or vibrations at the property line.
Further, Applicants assert that trash and waste oil generated from the repair business will be
disposed of properly.
21. Appellants generally contests some of Applicants’ evidence of compliance with the Town
performance standards under Regulations § 3.12, but have not offered specific evidence to rebut
Applicants’ representations concerning noise levels and the absence of the other nuisances listed
in the performance standards from Regulations § 3.12.
22. The intended location of the Proposed Workshop complies with all setback and height
limitations as set forth in Regulations Table 2.5(E), § 3.5 and § 3.6. Applicants assert that the
siting of the Proposed Workshop will diminish the effect of its appearance as viewed from off of
their property and have offered a photograph (Exhibit C), depicting the view of their property
and the Proposed Workshop site from the edge of Appellants’ driveway.
23. This Court conducted a site visit on February 11, 2008. As is often the case, the site visit
helped the Court put into context the evidence each party presented in support of their respective
positions for and against summary judgment.7
Discussion
In this de novo appeal, Appellants have moved for summary judgment on Question one
from their Statement of Questions, which essentially asks whether the Proposed Workshop
qualifies as an accessory structure. Applicants filed a cross-motion for summary judgment on
Question one, asserting that the Proposed Workshop qualifies as an accessory structure as a
matter of law, and also moved for summary judgment on Questions two and three from
Appellants’ Statement of Questions. Question two asks whether the use or activity in the
Proposed Workshop qualifies as a “Home Occupation I” under the Regulations, and Question
three asks whether the use or activity in the Proposed Workshop meets the “Performance
Standards” under the Regulations. We will take each issue in turn.
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At the site visit, the undersigned repeated to the parties that no observations or comments made during a site visit
could constitute evidence. Rather, site visits help the presiding trial judge, who is often unfamiliar with the specific
neighborhood, to put into context the evidence the parties present.
5
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 (citation omitted);
V.R.C.P. 56(c). We review the pending motions in this light.
I. Proposed Workshop as an Accessory Structure
Under the Regulations, an Accessory Structure is defined as “[a] structure on a lot which
is clearly and customarily related and subordinate to the principal structure or use on that lot.”
Regulations § 10.2. The Regulations do not set a particular limit on the size of the Accessory
Structure to allow a mathematical comparison with the principle structure—in this case the
Sheldrick dwelling. Regulations § 3.6(A)(2) provides some additional guidance by directing that
“[a]n accessory structure or use must be clearly subordinate in size, function, and overall
appearance to the principal structure or use” and must conform to all requisite setback
requirements. Again, there is no clear mathematical formula or comparison with the dwelling set
forth in the Regulations to conclusively determine whether the new structure is subordinate to the
dwelling. Therefore, the Court must look to the totality of the circumstances to determine
whether the Proposed Workshop is within the scope of the regulatory definition for an Accessory
Structure, specifically that is customarily related and subordinate to the principal structure or use
on Applicants’ property.
In this regard, we note that the uncontested evidence, particularly once put into context
by the Court’s site visit with the parties, is that the parties’ immediate neighborhood provides
many examples of residential properties with multiple structures, some attached and some
detached from the primary residence. Appellants’ own home provides an example of this
neighborhood characteristic: what once was a modest structure has been added onto several
times, including by linking one or more buildings that, if detached, would be regarded as
separate accessory structures. See Applicants’ Exhibits F, 1–8, inclusive. Most, if not all,
neighboring properties include multiple structures, in addition to the principal residence
structure. In this regard, the parties’ neighborhood is much like many rural Vermont
neighborhoods, populated by families, some of whom conduct home occupations on their
properties and who have multiple barns, garages and other structures on their properties.
Appellants have not provided specific evidence contradicting this depiction of the parties’
neighborhood. While we recognize the importance of viewing all evidence here in a light most
favorable to Appellants, when considering whether to grant Applicants a summary judgment that
6
would dispense with a merits hearing on this issue, we note that Appellants cannot successfully
rely “on mere allegations in the pleadings to rebut credible documentary evidence or affidavits”
when the trial court is reviewing a summary judgment request. Robertson v. Mylan
Laboratories, Inc., 176 Vt. 356, 362-3 (2004) (citing Gore v. Green Mountain Lakes, Inc., 140
Vt. 262, 266, 438 A.2d 373, 375 (1981)). By failing to present evidence upon which this Court
could rely that tended to show that the Proposed Workshop was out of character with the
surrounding neighborhood, Appellants have led us to the conclusion that summary judgment on
this legal issue is appropriate.
We conclude as a matter of law that a workshop or garage is customarily incidental to
residences in this neighborhood, as many free-standing garages and barns populate the
neighboring properties. This characteristic of multiple structures on residential properties is
mirrored throughout the rural neighborhoods of Vermont. See In re Linnebur Development
Application, Docket No. 155-7-06 Vtec (Vt. Envtl. Ct., May 2, 2007); see also Appeal of Stohl,
Docket No. 98-6-04 Vtec (Vt. Envtl. Ct., April 8, 2005).
The physical dimensions of a proposed accessory structure do not alone control the final
determination of whether the principal dwelling has remained the primary and dominant
structure on a property. Applicants submitted several photographs to the Court, demonstrating
neighboring properties with garages and barns that were as large or significantly larger than the
accompanying residence. Appellants have not presented evidence upon which we could
conclude that the Proposed Workshop is out of character with the immediate neighborhood. We
therefore conclude that the Proposed Workshop is of a character customarily incidental both to
this immediate neighborhood in particular and to rural Vermont neighborhoods in general.
Appellants next contend that an Accessory Structure cannot be permitted if the permittee
intends to operate a commercial enterprise within the structure. The definition section of the
Regulations—§10.2—appears to provide some support for Appellants’ assertion here, since the
definition for “Accessory Structure” includes the following permissible use examples: “garages,
garden and tool sheds . . . and permanent swimming pools which are incidental to the residential
use of the premises and not operated for gain.” The parties here offer competing arguments on
whether the phrase “not operated for gain” refers to all permitted uses of an accessory structure,
or just a swimming pool. While we welcome an opportunity to revisit the grammatical practice
of diagramming a sentence, we find that practice unnecessary here, since Regulations § 10.2, if
read in a manner to prohibit all “for gain” uses of accessory structures, would contradict other
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sections of the Regulations that speak more directly to the issue in dispute: permissible home
occupations.
Regulations § 4.11(A)(1) specifically provides authorization for the operation of home
occupations that are conducted within a portion of the dwelling or an accessory structure. Home
occupations are not only hobbies; they are operated with at least a general hope that some
pecuniary gain will accrue. Thus, we cannot interpret the “not operated for gain” language of
Regulations § 10.2 as barring all home occupations conducted within accessory structures in
Charlotte. Such a result would require us to put undue weight upon language that only applies in
a general manner to the legal issue in dispute, and to ignore the regulatory language that
specifically addresses the legal issue in dispute. General rules of statutory construction, which
our Supreme Court has previously found to apply to zoning ordinances, direct just the opposite
course as we attempt to interpret the regulatory language. In re Casella Waste Management,
Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 337. Were we to adopt the general bar to uses “for gain” that
Appellants suggest, the result would be a reading of the Charlotte Regulations that runs afoul of
the legislative protection for home occupations contained in 24 V.S.A. § 4412(4). Therefore, we
find that using an accessory structure to conduct a home occupation in Charlotte is not precluded
by the language of Regulations § 10.2.
However, while we find that an accessory structure such as the Proposed Workshop is
customarily related to a dwelling and is able to be operated for gain, whether this Proposed
Workshop is subordinate to Appellants’ principal residence or use is a mixed question of law and
fact. Appellants assert that the Proposed Workshop is not subordinate in size to the dwelling
because the Proposed Workshop will have a footprint of approximately 1,750 square feet, which
is larger than the 1,232 square foot footprint of the dwelling. Applicants counter that the
Proposed Workshop is necessarily subordinate in size to the dwelling because the cumulative
floor space of the dwelling comprises approximately 2,832 square feet, which is larger than the
1,750 square feet of floor space for the proposed workshop. Further, Applicants contend that the
siting of the Proposed Workshop will effectively diminish the apparent size of the proposed
structure. Thus, material facts are in dispute—that is whether the overall size and siting of the
Proposed Workshop will in fact be subordinate to the dwelling. Also, there are disputed issues
that contain mixed questions of law and fact—specifically whether comparisons of footprints or
floor-space of each structure should govern our determination of whether the proposed accessory
structure is “clearly subordinate in size, function and overall appearance to the principal structure
8
or use,” pursuant to Regulations § 3.6(A)(2). The only proper means by which to resolve this
disputed issue of law and fact is to receive all admissible evidence at trial.
II. Proposed Workshop as a Home Occupation
Applicants moved for summary judgment on Question two, asserting that the home
occupation use of the Proposed Workshop complies with the Regulations. Appellants opposed
the motion, contending that the home occupation issue necessarily requires a prior determination
on whether the Proposed Workshop qualifies as an Accessory Structure.
The use of a minor portion of a residential property for a home occupation enjoys specific
protection under Vermont law. See 24 V.S.A. § 4412(4). Pursuant to that legislative directive,
the Charlotte Regulations allow home-based businesses that are customary to Vermont
residential areas and do not have an undue adverse effect upon the character of their residential
neighborhood. Regulations § 4.11(A). The Regulations define three types of home occupation
uses; the classification applicable to the pending application being Home Occupation I, which
does not require a zoning permit if the use employs “only the resident(s) of [the] dwelling . . .
occurs within a minor portion of the dwelling and/or within an accessory structure to the
dwelling; and generates no more than 12 business-related vehicle trips per day.” Regulations
§ 4.11(A)(1). Also, all home occupations must comply with applicable wastewater disposal,
parking, and sign requirements and must meet the performance standards as set forth in the
Regulations.
We decline to adopt Applicants’ assertion that their receipt of municipal approval to use
their temporary garage for their home occupation is dispositive of the legal issue presented by
their current application. Our first concern stems from the notion that Appellants would be
foreclosed from contesting a legal determination of which they had no prior actual notice or an
opportunity to be heard. At a minimum, the doctrines of issue preclusion and collateral estoppel
require that the party to be precluded was or could have been a party to the prior proceeding.
Scott v. City of Newport, 177 Vt. 491, 493 (2004). Our second concern stems from the notion
that the underlying facts have changed; the existing temporary garage is smaller in size than the
Proposed Workshop. As discussed above, disputed material facts concerning the proportion of
the Proposed Workshop in relation to the principal use and structures preclude summary
judgment. The uncertainty about whether the temporary garage will be removed or will remain
reinforces our conclusion that a summary determination of conformance with Regulations
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§ 3.6(A)(2) is not appropriate. This legal issue will therefore also be the subject of evidence
presentation at trial.
We believe it important to note, however, that the legality of Applicants’ Proposed
Workshop as an accessory structure appears to be the only impediment to a legal conclusion that
Applicants’ proposed use qualifies as a home occupation that complies with Regulations
§ 4.11(A)(1), since it appears undisputed that the planned use of the Proposed Workshop will not
generate more than 12 business-related trips per day and that the only employees will be the
Applicants. To the extent that no contradictory evidence on daily trips and number of employees
is offered at trial, our analysis of whether Applicants are entitled to operate the proposed truck
and machinery repair business on their property as a Level 1 Home Occupation will be
determined solely by our conclusions on whether their Proposed Workshop conforms with
Regulations §§ 3.6(A)(2) and 10.2 (solely relating to the requirement that it be “subordinate to
the principal structure or use on that lot.”), as well as the performance standards of Regulations
§ 3.12, which we now turn to address.
III. Performance Standards for Home Occupation
Applicants also moved for summary judgment on Question three, asserting that their
proposed home occupation in the Proposed Workshop complies with the performance standards
in the Regulations as a matter of law. Appellants opposed the motion.
Under Regulations § 3.12, any proposed use in any zoning district must conform with
certain performance standards. Section 3.12 provides that no use shall cause: (a) noise in excess
of 70 decibels or noise that is incompatible with surrounding areas; (b) clearly apparent vibration
which is discernable at the property line; (c) smoke, dust, noxious gases or other forms of air
pollution which constitute a nuisance; (d) releases of heat, cold, moisture, mist, fog or
condensation which are detrimental to neighboring uses; (e) electromagnetic disturbances or
electronic transmissions or signals; (f) glare, lumen, light or reflection which constitutes a
nuisance; (g) liquid or solid waste or refuse which cannot be readily disposed of by available
methods; or (h) undue fire, safety, explosive, radioactive emission or other hazard. Id.
Through self-administered tests and site planning, Applicants submitted an affidavit to
the Court asserting compliance with all the performance standards in relation to the existing and
proposed operation of the truck repair business. Appellants summarily oppose the evidence
because it was acquired and submitted by the party seeking the permit and not by an expert
retained by Applicants.
10
We have found no obligation in the Regulations or the enabling statute that bars an
applicant from providing her own testimony in support of an application. We have also found no
rule or statute prohibiting an applicant from introducing their own testimony of evidence that
their proposed use or structure complies with a zoning ordinance. We anticipate that such a rule
would frustrate most municipal land use permit proceedings. Such evidence will be evaluated by
the Court for relevance, reliability and credibility. Appellants are correct that retained experts
may be a better vehicle for presenting such evidence, but they are not the only way.
In light of our prior rulings, we conclude that an evidentiary hearing is necessary to
resolve the legal issue of the proposed use’s conformance with Regulations § 3.12(a)–(h). In
reviewing the parties’ presentations concerning performance standards, we conclude that a
summary ruling on performance standards for the use of the Proposed Workshop would be
improper. However, we note that we see no bar in the Regulations or the enabling statute that
would prohibit an applicant from relying upon their own testimony that their proposed structure
and proposed use comply with the Regulations. After hearing all the evidence, we will
determine whether Applicants’ evidence provides a sufficient basis upon which we can conclude
that the applicable provisions have been met.8
IV. Expansion of Non-Conforming Use
Finally, Appellants contend that the Proposed Workshop is an expansion of a non-
conforming use because Applicants’ property is a four-acre parcel—in a district in which there is
a dimensional minimum of five-acres9—and therefore requires conditional use approval from the
Town. We disagree. The fact that Applicants’ lot is undersized and therefore non-conforming
does not make all uses conducted on that lot non-conforming. In re Appeal of Wesco, Inc., 2006
VT 52, ¶11–12 (citing Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 50-51 (1986)).
Conversely, the fact that Applicants’ lot is undersized does not exempt Applicants, their
proposed structure, or their proposed use from the requirement that they conform with all other
applicable Regulations. Lubinsky, 148 Vt. at 50-51. The lot size is the only non-conformity of
which we have been made aware. Since Applicants do not propose to further reduce the size of
their lot, we are unaware of any issue of non-conformity that arises by virtue of the size of their
lot.
8
We note that Applicants’ offer of evidence here is that their use will not contradict any of the performance
standards of Regulations § 3.12. We further note that the Regulations afford the ZBA in the first instance and this
Court on appeal with the discretion to fashion conditions to any application approval.
9
See Regulations Table 2.5, which identifies the dimensional standards for lands within the Rural Zoning District.
11
The Charlotte Regulations provide that non-conforming small lots “may be developed for
the purposes permitted in the district in which it is located if all other applicable requirements of
these regulations are met.” Regulations § 3.7. The fact that the lot may be undersized does not
prevent any further development; it just requires Applicants to comply with all setback and other
applicable requirements. The non-conformity of the size of the lot neither restricts the permitted
uses or structures, nor provides exemptions from the applicable dimensional regulations. To the
extent that Appellants have raised this argument to convince us that the current home
occupation/accessory structure application should not be allowed to be heard, we conclude that
Appellants’ claim lacks merit.
Conclusion
For all the reasons more fully discussed above, we DENY Appellant’s Motion and
GRANT in part Appellee-Applicants’ Cross-Motion on Question One by concluding that while
there are material facts in dispute as to the siting and performance standards concerning the
Proposed Workshop, it otherwise conforms to the requirements for a permitted accessory
structure in this neighborhood. Further, while we DENY Appellee-Applicants’ Motion on
Questions Two and Three because a summary judgment entry would be premature in light of our
first ruling concerning the characteristics of the Proposed Workshop, we conclude that there is
no legal barrier to our consideration of whether the home occupation use of the Proposed
Workshop conforms with the Regulations.
This matter is currently scheduled for a two-day trial, beginning July 9, 2008. A pre-trial
conference has been scheduled for Monday, June 2, 2008 with the Case Manager, at which the
parties are asked to be prepared to discuss any final preparations for the scheduled trial.
Done at Berlin, Vermont this 30th day of May, 2008.
______________________________________
Thomas S. Durkin, Environmental Judge
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