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ENVIRONMENTAL
COURT
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Three Church Street Expans=
ion
Permit } Docket No. 112-6-05 Vtec
(Appeal of Hummel) =
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nbsp; Decision
and Order on Cross-Motions for Summary Judgment
Appellants Kermit and Barbara Hummel appealed from a
decision of the Development Review Board (DRB) of the Village of Woodstock
approving an application relating to an inn at Three Church Street. Appellants are represented by Tho=
mas A.
Zonay, Esq.; Appellee-Applicant Jack Maiden is represented by Thomas Hayes,
Esq.; the Village is represented by Todd C. Steadman, Esq.
Appellee-Applicant applied in March of 2005 to amend the
property=3Ds 1990 conditional use permit to expand seating at the
restaurant to 33 seats, to remove a condition prohibiting the service of
alcoholic beverages to restaurant guests, to revise the approved parking p=
lan,
and to remove two outdoor sheds to accommodate the proposed parking plan.<=
span
style=3D'mso-spacerun:yes'> Appellee-Applicant purchased the
property in June of 2005. Bo=
th
Appellants and Appellee-Applicant have moved for summary judgment. The following facts are undisputed
unless otherwise noted.
The previous owner of the property, Eleanor C. Paine, d=
ied in
April of 2004. Zoning approv=
als
have been issued over time authorizing the property=3Ds use as an eleven-room inn with a twenty-seat restaura=
nt,
as follows: conditional use approval of the inn use (granted with conditio=
ns on
October 1, 1990); expansion of the kitchen to the wall line previously
established by the 1980 approval of the family room expansion (granted in
1984); expansion of the family room to fifteen feet[1]
from the westerly lot line (granted in November of 1980); approval to oper=
ate a
tourist home with ten rental rooms (granted in May of 1980), and approval =
of an
earlier expansion of the kitchen (granted in 1975).
Prior to 1990, Appellee-Applicant=3Ds parcel was in the Low-Density Residential zoning dist=
rict,
which required a minimum side setback of fifteen feet. Zoning Regulations '3.52(c)(4) (1977 and 1980). The Zoning Regulations adopted in=
early
1990 placed the property in the Inn zoning district, which required minimum
side setbacks of twenty-five feet. '310(E)(4) (1990); and see '311(F)(4) (1999).
Prior to 1990, the expansion of the building to fifteen=
feet
from the side property line complied with the then-Zoning Regulations, as =
well
as having received a permit. As of
the adoption of the twenty-five-foot side setback in 1990, the property be=
came
nonconforming due to the noncompliance of the permitted structure with that
side setback. See 24 V.S.A. =
'4303(14) and (15) (2004); In re Appeal of Miserocchi=
,
170 Vt. 320, 323B24 (2000); and see '607 (1999) (Aall uses that in the future do not conform by reason of=
any
subsequent amendment to these Regulations.@) As a no=
nconforming
use (that is, an allowed use in a noncomplying structure), it is allowed to
continue and to be maintained, but any expansion or alteration must be ana=
lyzed
under the provisions of the Zoning Regulations relating to nonconforming u=
ses
and noncomplying structures. '607.
In the present case, the April 27, 2005 application was= only warned for ADesign Review Approval,@ even though the minutes show that the DRB stated at the hearing that it was before the DRB for Design Review and Conditional Use approval, and even though the written decision purports to approve it for Design Review, Site Plan and Conditional Use approval (although without specifically addressing all the conditional use criteria or those in '607). In = order for a DRB properly to take action on an application, it must warn the hear= ing so as to sufficiently inform the public of the subject matter of the hearing. In re Torres= , 154 Vt. 233, 236 (1990). Because= the DRB did not do so, we must remand the&nbs= p; application to be rewarned and reheard under the standards in the Z= oning Regulations applicable to the expansion of a nonconforming use, including the conditional use criteria.<= o:p>
Accordingly, based on the foregoing, it is hereby ORDER=
ED
and ADJUDGED that Appellants=3D Motion for Summary Judgment as to Question 3 is GRANTE=
D,
and Appellee-Applicant=3Ds Motion for Summary Judgment is DENIED as material fac=
ts
are in dispute. As the DRB=3Ds proceedings were improperly warned, and as the applic=
ation
must be considered under the provisions of '607 relating to noncomplying uses and nonconforming
structures, this matter must be and hereby is REMANDED to the DRB, conclud=
ing
this appeal.
Any appeal from such future proceedings would be a new =
appeal
with a new docket number. Ho=
wever,
if Appellants again appeal from a decision rendered in such future proceed=
ings,
they may move the Court to apply the filing fee from the present appeal to=
that
subsequent appeal, as the remand was not made necessary by any action of t=
he
Appellants; please make reference to the docket number of the present appe=
al in
any such motion.
Done at Berlin, Vermont this 18th day of Oct=
ober,
2005
_______________________________
Merideth Wright
Environmental Judge
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