= = ; &= nbsp; &nb= sp; = ; &= nbsp; STATE OF VERMONT

= = ; &= nbsp; &nb= sp; = ; = ENVIRONMENTAL COURT

}

Appeal of Benoit & Kan= e = &n= bsp; } = &n= bsp; Docket No. 148-8-04 Vtec

}

= ; &= nbsp; &nb= sp; Decision on Cross-Motions for Summary Judgment

Appellants Gregory P. Benoit and Deborah Kane appealed = from a decision of the Development Review Board (DRB) of the City of St. Albans, dated August 12, 2004, denying their application for approval of the after-the-fact conversion, from day care to residential use, of a second building on the lot, under '602^{^[1]} of the Land Development Regulations. Appellants are represented by Michael S. Gawne, Esq.; the City is represented by Robert E. Farrar, Esq; Interested Persons Paula B. Johnson = and Christopher J. Dermody entered an appearance and represent themselves.

Appellants and the City have each moved for summary judgment. The following fact= s are undisputed unless otherwise noted. =

Appellants own property at 53 High Street in the High Density Residential zoning district. The former owners, Alan and Beverly Hayford, conveyed the property = to Appellants in 2003. The Hayf= ords purchased the property in mid‑1976, prior to the adoption of the fir= st zoning ordinance for the City in March of 1977.

The property is 20,900^{^[2]} square feet in area, and has a lot width of 99 feet. The property now contains two bui= ldings, which occupy 20% of the lot area. Both buildings were erected long before the adoption of zoning in t= he City. The property is served= by municipal water and sewage disposal services. The main building now contains fi= ve dwelling units; a second, separate building in the rear of the property is= the subject of this appeal, and now contains one dwelling unit. When the Hayfords acquired the pr= operty in 1976, the rear building was in use as a print shop, and the front build= ing was in use as four dwelling units (apartments). In 1976, the Hayfords applied for= and were granted a building permit for general repair of the rear building to convert it to a nursery school. This was not a zoning permit, as zoning had not yet been adopted; rather, it was a building permit as allowed under 24 V.S.A. '3109. As = of that time, the property contained seventeen parking spaces; however, the materi= als provided to the Court do not contain any diagram of the parking layout or whether it has changed over time.

The rear building is located approximately four feet fr= om the east or rear property line and approximately two feet from the south s= ide property line. The front bui= lding is located^{feet from the front prope=
rty
line, 13 feet from the nearest side property line, and 89 feet from the re=
ar
property line.}

The Hayfords converted the rear building to day care or nursery school use under a building permit issued prior to the adoption of= the 1977 zoning regulations. For= the purposes of the present case, we need not determine whether that approval = gave them a vested right to accomplish that conversion without obtaining approv= al for that change of use under '602.2 (as the rear building was non-conforming as to the side setback), or obtaining site plan approval under '401 (prior to the issuance of a zoning permit for the d= ay care or nursery school use). We also need not reach the question of the number of children serve= d by the day care use, or whether conversion of the rear building for that purp= ose also required conditional use approval under '332.

At some time in mid-1986, the Hayfords converted the interior space of the main building from four dwelling units to five dwell= ing units. This change in the nu= mber of units did not render the property more non-conforming, assuming the applic= able zoning regulations allowed multi-family use as a permitted use in the dist= rict, as it still met the requirement of 3,000 square feet of lot area per dwell= ing unit and still had an adequate number of parking spaces. While this conversion did not req= uire approval under '602.2, it should have obtained site plan approval under= '401, as a prerequisite to obtaining a zoning permit fro= m the Zoning Administrator. If the= lack of site plan approval was improperly authorized as a result of error by the Zoning Administrator,^{^[6]} it left the status of the building as non-conforming for failure to have s= ite plan approval as well.

Thus, as of the adoption of the 1998 Regulations, the property became non-conforming as to any more than four dwelling units, du= e to the area-per-dwelling-unit requirement, and became non-conforming as not holding conditional use approval. The main building became non-conforming on its north side as to the= new 15-foot side setback requirement. The rear building became more non-conforming as to the side setback= and became non-conforming as to the rear setback even if treated as an accesso= ry structure.

Section 304 of the 1998 Regulations also increased the maximum lot coverage to 50%, and added detailed requirements for off-street parking and landscaping, in accordance with ''415 and 416. Without a plan of the parking and landscaping on the site, we cannot determine whether these changes made the property non-conforming as to lot coverage,^{Th=
e fact
that Appellants applied for a variance from those requirements suggests th=
at
the property did not conform to some aspect of these requirements. Calcula=
ted
as two parking spaces per dwelling unit plus one guest space for every thr=
ee
dwelling units, nine (or ten) spaces would be required for four dwelling u=
nits,
eleven (or twelve) for five dwelling units, and fourteen for six dwelling
units, '415.7; if the property retained all seventeen of its
original spaces it remained conforming with the number of required parking
spaces.}

Section 304(C)(as amended in 2001) requires site plan r= eview Afor all uses other than single-family and two-family dwellings@ pursuant to Article 7. Section 701(B)(1) requires site plan approval for three classes of proposals: those that do not involve new construction or enlargement of any structure, but do modify the arrangement of parking, landscaping or other requirements of '704; those that do involve new construction or enlargem= ent of existing structures, but do not modify parking, landscaping or other requirements of '704; and those that both involve new construction or enlargement of any structure and modify parking, landscaping or other requirements of '704.

Sections 602 and 603 of the 1998 Regulations, as amende= d, continued to allow non-conforming buildings or uses to continue indefinite= ly, but not to increase a building=3Ds degree of non-compliance, '603(B). S= ection 602(D) allows Aany residential use which under these regulations is non-conforming [to] be altered or extended, including the addition of acce= ssory structures, if such alteration or extension does not result in additional dwelling units or the addition of other non-conforming uses.@ Section = 602(E) prohibits the alteration or extension of any non-conforming parking in this zoning district, Aexcept to conform to these regulations.@

After a Certificate of Occupancy was denied, soon after= the adoption of the 1998 Regulations the Hayfords applied for approval of the = six dwelling units, configured as five units in the main house and one unit in= the rear building. The ZBA denie= d the application, ruling that the property required five variances: regarding t= he lot area, '304(D); the sideline setbacks, '304(D); the rear setback (referring to the rear buildin= g as a principal building), '304(D); landscaping around the perimeter of a parking l= ot, '415.4(B); and parking within the required setbacks, '417.4. The ZBA also denied variances for those items. The ZBA=3Ds May, 1998, decision was not appealed and became final. In July of 1998, the = Zoning Administrator issued a notice of violation, later vacated ^{Ause of this property for six dwelling units when only f=
our
have received approval.@}

^{See =
City
of St. Albans v. Hayford & Benoit & Kane, Docket No. 161-9-03 =
Vtec,
slip op. at 7 (Vt. Envtl. Ct., June 1, 2004).}

^{The City
asserts that the lot is listed as only 19,700 square feet in area on the t=
ax
map, but does not otherwise contest the deeded area.}

^{Measurem=
ents
are taken from Exhibit 8 in Docket No. 154-9-01 Vtec; the parties did not
provide a sketch or site plan showing the layout of the buildings and the
various measurements to the property lines in any of the three cases now
pending before this court.}

^{The 1977
ordinance has not been provided to the Court, so that it is not entirely c=
lear
which requirements went into effect with that ordinance, and which were ad=
ded
in the ordinance in effect in 1986-87; however, any discrepancies do not a=
ppear
to be material to the present case.}

^{This
nonconformity renders the rear building a non-conforming use as well as a
non-complying structure. =
In re
Appeal of Miserocchi, 170 Vt. 320, 323-24 (2000) (non-complying struct=
ures
are also non-conforming uses under the state statute).}

^{We note =
that if
a zoning administrator authorizes a nonconformity to occur or to be enlarg=
ed in
error, it remains a nonconformity subject to the provisions of the ordinan=
ce
regarding nonconformities. 24
V.S.A. '4303(13), (14) and (15) (2004).}

^{Appellan=
ts=3D Amended Statement of Material Facts at &2, filed April 4, 2005.}

^{The deci=
sion in
Appeal of Hayford, Docket No. 154‑9‑01 Vtec (Vt. Envtl.=
Ct.,
Feb. 26, 2003), determined that, whatever discussion may have occurred bet=
ween
the Hayfords and the Zoning Administrator, the City was not estopped from
proceeding with enforcement regarding the residential unit in the rear
building. No party appealed =
that
decision; estoppel is not at issue in the present case. =}

^{Defined =
in the
1998 Regulations to include land covered by buildings, parking spaces, and
driveways; the former regulations only included land covered by buildings.=}

^{The ZBA =
had
failed to act on the appeal of that notice of violation within the statuto=
ry
time limit and therefore vacated it; summary judgment was ultimately grant=
ed in
favor of the Hayfords in a subsequent Superior Court enforcement action du=
e to
the invalidity of that underlying notice of violation. Garceau v. Hayford, Docket=
No.
S98‑99 Fc (Franklin Superior Ct., May 29, 2001).}

^{A copy o=
f the
application in the present case has not been provided to the Court in
connection with the present motions.}

^{The Court
understands that such an application is not before the Court in this case,=
and
that Appellants may prefer not to relinquish any dwelling units in the main
building that have been ruled to have been approved. If they do file such an applicati=
on, the
Court would consider waiving the filing fee for a subsequent appeal, due t=
o the
convoluted history of the litigation involving this property.}