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Appeal of Joseph Wright and Priscilla Wright &n= bsp; } = Docket No. 062-4-04 Vtec

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= ; &= nbsp; &nb= sp; = ; &= nbsp; Decision and Order

Appellants Joseph and Priscilla Wright appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Newfane, upholding the Zoning Administrator=3Ds denial of their application to erect a garage to hous= e and service the vehicles and equipment used in their maintenance, excavation a= nd logging business. Appellants= are represented by Stephen R. Phillips, Esq.; the Town is represented by Samue= l H. Angell, Esq.; interested persons David and Barbara Kearney are represented= by Craig T. Miskovich, Esq.; interested persons Merle O. Tessier and Marilyn = J. Tessier are represented by Frank H. Langrock, Esq., but at their request represented themselves at trial and in the post-trial filings. As noted on the record, Appellant= s are not related in any way to Judge Merideth Wright.

An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge, who took a site visit at the conclus= ion of the hearing alone by agreement of the parties. The parties were given the opport= unity to submit written memoranda and requests for findings. Upon consideration of the evidenc= e as illustrated by the site visit, and of the written memoranda and requests f= or findings filed by the parties, the Court finds and concludes as follows.

Appellants own a 3.58-acre parcel of property on the we= st side of Vermont Route 30. Th= ey acquired the property in 1995 when the 1989 version of the Zoning Byaws wa= s in effect. The property is bordered on the north and west= by Grimes Hill Road and on the east by Route 30. The neighborhood is largely resid= ential, with some home-based businesses.

At the time of Appellants=3D purchase the property had direct access by a single driveway from Route 30. Appellants=3D residence is located in the southerly area of the property. Appellants operate= a maintenance, excavation and logging business from the property.

Appellants did not apply for or receive a zoning permit= for operation of the business as a home occupation or home industry operated f= rom the residential property. Ho= wever, in April of 1996 they obtained approval of Zoning Permit No. 96-08 from the Board of Selectmen^{^[1]} for an oval sign to be located adjacent to the driveway, stating AWright Maintenance, Logging, Dozer and Backhoe Work.@ The Zoni= ng Administrator did not advise Appellants that a zoning permit was required = for the home-based business, either when the sign application was referred to = the Board of Selectmen or at any other time.

In 1997 Appellants obtained municipal approval of a sec= ond driveway (residential access) onto their property from Grimes Hill Road. They also obtained a state Act 250 permit for the construction of an addition to their residence for a reside= ntial garage and a hair salon. App= ellant Priscilla Wright operates the hair salon as a home-based business. No zoning permit appears in the T= own=3Ds records or in Appellants=3D records for the construction of the garage/salon addit= ion, nor for operation of the hair salon as a home occupation or home industry.=

Appellant Joseph Wright operates the excavation, mainte= nance and logging business from the residence. The work is perfo= rmed off site at his customers=3D properties. Appellants own three two-axle vehicles and= two one-axle trailers in connection with their residential use of the property. The business owns = ten trucks or other pieces of equipment each having two axles, plus three trac= ked vehicles (two excavators and a dozer) that are transported on trailers and= do not run on the road. The bus= iness also owns two two-axle trailers which must be pulled by other vehicles, so= that the combined vehicle would have more than two axles. In addition, the business owns a = log truck and a dump truck each of which has more than two axles. The business equipment and vehicl= es are generally moved from work site to work site in the construction season, bu= t are stored outside on the northerly portion of Appellants=3D residential property in the off season or between jobs= .

The northerly portion of Appellants=3D property is partially wooded. Some, but not all of it is effectively screened from Grimes = Hill Road and from Route 30, depending on where on the property the equipment or vehicles are located. At lea= st in the summer of 2004, continuing through December of 2004, Appellant Joseph Wright unloaded logs onto an area of the property visible from Grimes Hill= Road and stored them in that outdoor location.=

In early 2004 Appellant Joseph Wright applied for the z= oning permit at issue in this appeal. He seeks a zoning permit to construct a separate garage building to park his business equipment under cover. The building was proposed to be 76' x 36' (2736 square feet) in footprint and = 24 feet in height, and to be located in a wooded area of the northerly portio= n of the property, so as to be largely screened from Route 30 and from the east= -west segment of Grimes Hill Road. No design for the building was proposed at that time, although at trial it was descr= ibed as a one-story building with a metal roof.

The Zoning Administrator interpreted Appellant=3Ds proposed use of the property as a commercial use, des= pite the fact that Appellant had been operating the same use on the property as= a home-based business (home industry or home occupation) since 1995. The Zoning Administrator rejected= the application on the basis that there was insufficient acreage on the proper= ty to operate both a commercial use and a residence on the same property, interpreting Bylaws '4412 together with Bylaws '5210 to require two acres for each building. In addition, the Zoning Administr= ator noted that site plan approval of the proposal from the Planning Commission would also be required, before a zoning permit could be issued. The ZBA upheld the Zoning Adminis= trator=3Ds ruling; Appellants brought this appeal. Appellants did not apply to the P= lanning Commission for approval of the site plan.= Appellants did apply to the ZBA for a variance from the four-acre l= ot size requirement, but withdrew or abandoned their appeal of that issue at = trial in this Court.

Under the Bylaws as last amended in June of 2003^{'4233, must receive a zoning permit from the Zoning
Administrator. Bylaws '2200. The=
Zoning
Administrator, in turn, must determine that the application has received a=
ny
required approvals from the ZBA and the Planning Commission, before issuin=
g a
permit. (It is also the Zoni=
ng
Administrator who approves subdivisions.&=
nbsp;
Bylaws '5650.)}

Unusually, the Bylaws do not provide for conditional us= es for which the ZBA issues conditional use approval. Rather, the function of the ZBA is limited to appeals and variances as provided by the state zoning enabling = act (as it existed in June of 2003). Bylaws '2340. Ins= tead, site plan approval from the Planning Commission is required for all Acommercial developments@ and for Aall development other than for a one or two unit dwelli= ng or appurtenant buildings and/or structures thereto.@ Fu= rther, it is the Planning Commission that approves changes to or resumptions of non-conforming uses, Bylaws ''7120 and 7130, and approves noise expected to be genera= ted off-site by any home industries and commercial development. Bylaws '8900.

Any occupation which is customary in a residential area= and which occupies a minor portion of the dwelling and appurtenant structures = and which does not change the character thereof,^{^[3]} including any manufacturing, handicraft, service or hobby providing income, which is performed within or without a portion of a dwelling or in one or = more buildings normally appurtenant to a dwelling including, but not limited to, professional office, craft manufacturing as the source of principal liveli= hood, studios for photographer, artist or musician. Except further that any activity regularly serviced by trucks having more than two axles shall not be consi= dered home industry.

Thus, a >home industry=3D may be conducted within the dwelling, outside the dwel= ling, or in one or more buildings normally associated with a dwelling, such as a garage, studio or separate workshop, while a ><= span style=3D'font-family:Shruti;mso-ascii-font-family:Shruti;mso-hansi-font-fa= mily: "Times New Roman"'>home occupation=3D as defined in Bylaws '4110 must be conducted within the dwelling.<= /span>

Only the bookkeeping, office work, and telephone dispat= ching aspects of Appellants=3D maintenance, excavation and logging business (and poss= ibly the snow plowing and any lawn mowing or yard maintenance services) would be able to qualify as a >home occupation=3D as it is the only portion carried on within the dwelli= ng and its residential garage. = It is possible that some additional aspects of Appellants=3D maintenance, excavation and logging business could fall within the wider definition of >home industry.=3D

The proposal before the Court does not appear to fall w= ithin the definition of >commercial development=3D in Section X, as the use of the property or even of the proposed building is not for the primary purpose of producing or selling a= ny merchandise or services. Rat= her, the primary use of the property is as Appellants=3D residence. A secondary use of the property is as a hair salon. Another secondary use of the prop= erty is to run Appellants=3D maintenance, excavation and logging business. We must emphasize that if certain aspects of that business have expanded beyond the definition of home indus= try, they simply cannot be carried on as secondary to a residence use of the property.

A zoning permit is required under Bylaws '2200 for land development, which is defined to include a change in the use of land, as well as the construction or alteration of structures and the subdivision of parcel.= Appellants should have applied for and received a zoning permit in = 1995 or 1996 to operate the maintenance, excavation and logging business from t= he property, as well as applying for and receiving zoning approval of the sign. Site plan approval sho= uld also have been obtained under Bylaws '6100 for the maintenance, excavation and logging busine= ss as a use other than a one or two unit dwelling. For the same reason, and also bec= ause Act 250 approval was required, in 1997 they should have obtained a zoning permit and site plan approval for the hair salon.^{^[4]} If the 1989 Bylaws did not contai= n those requirements, then at least as of the adoption of the 2003 Bylaws, both the hair salon and the maintenance, excavation and logging business became exi= sting nonconforming uses, entitled to remain but not to be increased or changed without compliance with the nonconforming use provisions of Section VII. The property is not large enough = to support the maintenance, excavation and logging business as a separate commercial use, together with the residence.

Based on the foregoing, it is hereby ORDERED and ADJUDG= ED that Appellants=3D application to construct the garage is DENIED, as site= plan approval must be obtained from the Planning Commission prior to considerat= ion of this zoning permit application, and it has not been obtained. However, Appellants are free to a= pply for a zoning permit for the maintenance, excavation and logging business a= s a home industry, and then to apply for the garage in connection with that approval, if they reduce the on-site aspects of the business to those that= can qualify under the definition of home industry.

In any such application, it will be for the Zoning Administrator to rule in the first instance as to what aspects of the busi= ness fall within the definition of home industry. At a minimum, any aspect of the b= usiness that relies on vehicles of more than two axles cannot be carried on as a h= ome industry business. Other asp= ects of the business, such as the storage or maintenance of the larger vehicles an= d the depositing or storage of piles of logs, may have to be conducted on a diff= erent non-residential property or on a different property large enough to support both a commercial and a residential use on the same property. There does not appear to be any authorization for depositing loads of logs or excavated materials on the property in connection with a home industry business, but it will be up to= the Zoning Administrator to determine whether such activities are customary in residential areas. The test = will be whether the type of business activity (such as snow plowing or lawn mowing= , or storage of excavation or maintenance equipment) is customary in residential areas, does not change the character of the area, and meets the Pollution Control sections of the Bylaws. Any issues of whether the Town should be estopped from denying such approval, = based upon the grant of the 1996 zoning permit for the sign for the business, wi= ll have to be considered in that application before they are considered by the Court.

If Appellants should instead choose to continue the lev= el of operation of the maintenance, excavation and logging business conducted to date, without applying for a permit, then that operation will have to be analyzed as a nonconforming use, which is beyond the scope of the present appeal. Section VII does not provide for the expansion of a nonconforming use.

Dated at Berlin, Vermont, this 14^th day of November, 2005.

______________________________________

Merideth Wright

Environmental Judge

&nbs= p; ^{^[1]} Signs are regulated under = '4290 of the current Zoning Bylaws, which does not provi= de for Board of Selectmen approval. Nevertheless, the Board=3Ds 1996 action was entitled a Azoning hearing@ to consider four Azoning applications,@ including Appellants=3D sign application.&nbs= p; No explanation was provided by any party as to why this application= was referred to or heard as a matter of course by the Board of Selectmen.=

&nbs= p; ^{^[2]} If the 1989 Zoning Bylaws did not contain these provisions, then in 2003 any then-existing use not conforming with the 2003 Zoning Bylaws became nonconforming, so that any new applicat= ion would have had to have been analyzed under Section VII governing nonconfor= ming uses. Such an application is= not before the Court in the present appeal.

&nbs= p; ^{^[3]} Although this is not clearly draf= ted, it appears to refer back to not changing the character of the residential are= a, rather than that of the dwelling.

&nbs= p; ^{^[4]} During trial, the Town stated that the construction of the addition and the operation of the hair salon as a home occupation would qualify for a zoning permit. However, no such application is on appeal to this Court in this case. Appellants are free to file that application and to seek that approval at the municipal level at any time.<= o:p>