In re: Appeal of Brian Hehir (Decision and Order on Appellant's Motion for Summary Judgment) ( 2001 )

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of Brian Hehir }
}
} Docket No. 130-6-00 Vtec
}
}
Decision and Order on Appellant= s Motion for Summary Judgment
Appellant appealed from a decision of the then-Zoning Board of Adjustment (ZBA) of the City
of Burlington granting conditional use approval to Appellee-Applicant Four Star Delivery
Service, Inc. Appellant is an attorney who represents himself; Appellee-Applicant is represented
by Alan A. Bjerke, Esq.; the City is represented by Kimberlee J. Sturtevant, Esq. Appellant has
moved for partial summary judgment on the first two questions of the Statement of Questions: 1)
whether the prior nonconforming use was discontinued for a period of one year before Appellee-
Applicant commenced its non-conforming use at that location; and 2) whether any
nonconforming use, including Appellee-Applicant= s, may be lawfully re-established at that
location.
The following facts are undisputed unless otherwise noted. Prior to May 18, 1992, 203 North
Winooski Avenue had been vacant for approximately eight years. It is located in the Residential-
Medium Density zoning district, in which a retail business is neither a permitted nor a
conditional use. On May 18, 1992, the former occupant received a conditional use permit to
operate a retail business selling sports cards and comic books in the building. Neither the permit,
the ZBA minutes, nor the application for that permit has been supplied by the parties in
connection with their motion memoranda. No appeal was taken, and the permit became final,
regardless of whether it properly should have been granted. Approximately one year later, that
business vacated the building.
Shortly after the former business vacated the building in 1993, Appellee-Applicant moved its
business in to the building and has operated there since that time. However, Appellee-Applicant
neither applied for nor received any zoning permits at that time, or for approximately seven years
from commencing to operate the business at that location.
At some time in the year 2000, in response to some type of notification of violation, Appellee-
Applicant applied for the present conditional use permit to establish a A restaurant order taking
center business.@ That application has not been supplied by the parties in connection with their
motion memoranda; nor have the parties established the use classification of Appellee-Applicant=
s business under the Zoning Ordinance. The ZBA approved the application as a change or
modification to a non-conforming use, for which conditional use approval is required under ' '
20.1.5 and 20.1.6 and Article 17 of the Zoning Ordinance, on May 22, 2000, and Appellant
brought this appeal.
Section 5.1.8 requires that any modifications to a preexisting non-conforming use requires
conditional use approval, and that any change to a different use requires an additional finding by
the ZBA that the new use A is less harmful or detrimental to the neighborhood than the existing
use@ referring to ' 20.1.6.
Appellant argues that the prior use was discontinued approximately seven years before Appellee-
Applicant applied for the present permit, and that therefore the discontinuance provisions of '
20.1.6(d) do not allow its resumption. However, ' 20.1.6(d) addresses the discontinuance of a
use, not the status of a use as holding a proper permit or not. Accordingly, summary judgment is
granted in favor of Appellee-Applicant on Question 1 of the Statement of Questions: the prior
business was discontinued for less than one year at the time that Appellee-Applicant commenced
its business at that location. Whether Appellee-Applicant qualifies for the required permits is a
separate question which will be the subject of the hearing on the merits of this appeal.
Appellee-Applicant argues for an even more expansive reading of ' 20.1.6(d): that if any
nonconforming use is established in the building within the ' 20.1.6(d) period, then its status as a
pre-existing, nonconforming use may continue. But ' 20.1.6(d) must be read together with the
principle that non-conforming uses are intended to be phased out over time. It must also be read
together with the other sections of the ordinance allowing a change in use under certain
circumstances.
A non-conforming use may continue, may be changed to an allowed use, may be discontinued,
or may be changed to a different non-conforming use. If a non-conforming use is discontinued, it
may be re-established within a year under ' 20.1.6(d) without losing its grandfathered status.
Thus a new restaurant may be reopened in the place of a pre-existing restaurant, or a new retail
store in the place of a pre-existing retail store, under this section (and ' 20.1.6(f) allowing an
extension of time). However, if the non-conforming use is changed in any way, including as to
its hours of operation or extent of use, or if it is changed to a different non-conforming use, the
provisions of ' 5.1.8 also come into play.
Material facts are in dispute, or at least have not been established on summary judgment, as to
the classification of Appellee-Applicant= s business. Even if it is classified as a retail
establishment, it requires conditional use approval under ' ' 5.1.8 and 20.1.5, if its hours of
operation, numbers of employees, parking requirements, traffic generation or other
characteristics have changed at all from the prior use. If Appellee-Applicant= s business is
classified as a different kind of use, then it may require a determination by the Administrative
Officer under ' 5.1.6 as to whether the use is A substantially equivalent in use, nature and impact@
to any of the listed permitted or conditional uses allowed in any district. If Appellee-Applicant= s
business is classified as a different kind of use, it will in any event require a determination under
' 5.1.8 that it is A less harmful or detrimental1 to the neighborhood@ than was the prior use, as
well as requiring conditional use approval under ' ' 5.1.8(first sentence) and 20.1.5. Material
facts are in dispute as well as to its operating characteristics as compared to the prior use, and as
to whether it is less harmful or detrimental.
Accordingly, based on the foregoing, Summary Judgment is GRANTED in favor of Appellee-
Applicant on Question 1 of the Statement of Questions and is DENIED on Question 2 of the
Statement of Questions as material facts are in dispute. The hearing scheduled for this Thursday,
April 19, 2001, will proceed on all remaining disputed issues.
Done at Barre, Vermont, this 16th day of April, 2001.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
The standard is a finding that it is less harmful or detrimental, rather then that it is no more
harmful or detrimental. Compare, In Re Reclassification of Ranch Brook, 146 Vt. 602, 604-05
(1986)