STATE OF VERMONT

ENVIRONMENTAL COURT

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Appeal of Trotin<= span style=3D'mso-tab-count:4'> = &n= bsp; &nbs= p; } = &n= bsp; Docket No. 141-8-04 Vtec

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= Decision and Order on Appellants’ Motion for Summary Judgment

<= /span>Appellants Philippe and Kristine Trotin appealed from a decision of the Zoning Board = of Adjustment (ZBA) of the Town of Bakersfield, reversing the Zoning Administrator’s issuance of a Notice of Violati= on to Appellees Landon and Sherri Joyal for operating a commercial enterprise at= an unpermitted facility. Appell= ants are represented by Charles F. Storrow, Esq.; Appellees are represented by = Douglas D. DeVries, Esq.; the Town is represented by Michael S. Gwane, Esq. Appellants moved for summary judg= ment.

Background

<= /span>The following facts are undisputed unless otherwise noted.

1. = Appellees Landon and Sherri Joyal own a ±6.5-acre parcel of property on Vermo= nt Route 108 within the Town’s Low Density Residential zoning district. Appellees’ property include= s their residence and a 30´ by 80´ garage approved under a permit issu= ed in March of 2003. The issuance = of the permit for the garage was not appealed, and is therefore final.

2. = Next to “PROPOSED USE” on the permit application Appellees wrote: &= #8220;garage for Truck and workshop.” The garage was erected sometime after the March 2003 approval. It is unclear from the parties= 217; filings whether the garage construction was completed at the times relevan= t to this proceeding.

<= /span>3. = Appellees own a tractor and operate a trailer with a refrigeration unit which they u= se for the transportation of goods in exchange for payments. The parties dispute where Appelle= es park their tractor and its trailer when not in use. [1] Appellants assert that the tracto= r and trailer are parked in Appellees’ driveway. Appellees claim that the tractor = and trailer are parked in their 30´ by 80´ garage.

<= /span>4. = After receiving complaints from Appellees’ neighbors regarding noise and o= dors emanating from Appellees’ idling tractor and the running of the trailer’s refrigeration unit, the Zoning Administrator discussed the issue with the Town’s attorney, and then sent a letter to Appellees requesting that= they file an application for a commercial permit to park their tractor and trai= ler.

<= /span>5. = By Notice of Violation dated A= pril 27, 2004, the Zoning Administrator informed Appellees that they we= re in violation of § 303.5.3[2] of Bakersfield Zoning Bylaws (Bylaws) for “operating a commercial enter= prise at an unpermitted facility.” See Attachments to Appellants’ Statement of Material Facts, E= x. 2.

6. = Appellees appealed the issuance of the Notice of Violation to the ZBA. A special hearing was held before= the ZBA on June 16, 2004, to address Appellees’ appeal. At the hearing, the ZBA took testimony from the Zoning Administrator, Appella= nts, Appellees, and other concerned neighbors.= The Zoning Administrator stated that the Notice of Violation was is= sued for the idling of Appellees’ tractor and the trailer’s refrigeration unit, and housing goods for resale, apparently believing that such activity required a commercial permit. See Attachments to AppellantsR= 17; Statement of Material Facts, Ex. 3. At the close of= the hearing, the ZBA recessed and went into a deliberative session.

<= /span>7. = The ZBA issued a “Resolution of Appeal Request,” dated June 19, 2004, reversing t= he Zoning Administrator’s decision to issue the Notice of Violation. See Attachments to AppellantsR= 17; Statement of Material Facts, Ex. 4. The ZBA specifi= cally found that neither the Town nor the State required a permit to park a commercial vehicle in a residential driveway, that the completed garage wo= uld house the “truck,” and that such a use constituted a home occupation, which did not require a zoning permit. Id.<= /st1:place>

<= /span>8. = Appellants Philippe and Kristine Trotin timely appealed from the ZBA’s decision= , and filed a Statement of Questions.

Discussion

<= /span>Appellants moved for summary judgment on Questions 1 and 2 of the Statement of Questi= ons, and a third related issue. T= he first issue presented is whether Appellees’ use of their property to= park their tractor trailer is a permitted use.= The second issue is whether a home occupation requires a zoning permit. The third issue is w= hether the parking at a residential property of a tractor or commercial trailer (= with separate diesel engine for a refrigeration unit) constitutes a home occupation. We address these= issues in turn.

<= /span>It is w= ell established in Vermont that “[t]o prevail on a motion for summary judgment, the moving party must satisfy a stringent two-part test: first, there must be no genuine issues = of material fact between the parties, and second, the moving party must be entitled to judgment as a matter of law.” Wesco, Inc., v. Hay-Now, Inc.<= /u>, 159 Vt.= 23, 26–27 (1992).

The first= issue presented for summary judgment is whether Appellees’ use of their property to park their tractor or trailer is a permitted use. We must begin our analysis by rev= iewing the existing permits for the subject property. As noted above, in March of 2003,= Appellees applied for and received a permit to add an accessory structure―a garage―to the pre-existing residence and to use the accessory struct= ure “for [a] truck and workshop.”= No mention in that permit application is made of the storage of a tractor or trailer, either belonging to the property owner or his business vendors; the record shows no evidence of an amendment to this permit being applied for or received. Thu= s, the zoning limits for this property are defined as a single family residence, = with an accessory garage to be used for a workshop and truck storage.

Single fa= mily residences and accessory uses are the only permitted uses in the Low Densi= ty Residential zoning district. Bylaws § 303.5.3. Accessory us= es are defined as “[a] use &nbs= p; . . . that is inciden= tal and subordinate to the principal use.”&= nbsp; Bylaws § 802. Ac= cessory uses not previously permitted require that a permit application be filed a= nd approved by the Zoning Administrator for the requested accessory use. Bylaws § 302.1. Conditional uses for this zoning district may only be allowed “after appeal for conditional use revie= w and approval by the [ZBA] after public hearing.” Id.<= /st1:place> No such application has been= made here, so our analysis need not include the question of whether Appellees&#= 8217; use of their property could be regarded as a conditional use.

In the pr= esent case, Appellees’ residence is the principal use of the property. The accessory use of property to = park a tractor or trailer used by the owners for the transportation of goods in exchange for payments does not appear to be authorized by the permits issu= ed for the subject property. If Appellees are not authorized to conduct the complained-of use on their pro= perty by either the applicable permit or by a general provision of the Bylaws, declaring that such use does not require a permit, then Appellees are at r= isk of being found in violation of the Bylaws. Such is the case here.

<= /span>The second issue is whether the Bylaws require a permit for the establishment = of a home occupation. The subsequ= ent related question is whether Appellees’ use of their property can be regarded as a “home occupation” under these Bylaws. We take these questions in turn.<= /p>

Pursuant = to the Bylaws, a building permit is required “to substantially change or expand the= use of land.” Bylaws § 202.1.2. A home occupation is defined as “[a]n occupation carried on in a principal, or accessory, residential structure, that is customarily incidental and secondary to the= use of the premises for dwelling purposes, and which does not substantially al= ter the character of the dwelling, or the neighborhood.” Bylaws § 824. Because the definition of a home occupation requires that it not “substantially alter the character o= f the dwelling, or the neighborhood,” the establishment of a home occupati= on would not “substantially change . . . the use of land.” See Bylaws § 202.1.2. When the characteristics for a ho= me occupation in Bakersfield are = met, the property owner is not required to obtain a permit for such use.

So we now= turn to the question of whether Appellees’ use of their property can be characterized as a home occupation. This Court previously agreed that the resolution of this issue may require an evidentiary hearing. Nonetheless, Appellants argue that summary judgment is appropriate = and should be granted in their favor on this issue because Appellees allegedly= park their tractor trailer in their driveway.[3]

Appellant= s argue that because Appellees allegedly park their tractor and trailer in their driveway, and not wholly within an accessory or principal structure of the= ir dwelling, that summary judgment is appropriate and should be granted in Appellants’ favor on this issue.&nb= sp;

In their “Second Memorandum of Law in Opposition to Appellants’ Motion = for Summary Judgment” (filed with the Court on March 8, 2005), Appellees dispute Appellants’ allegation that they park their tractor and trailer in their driveway. Appellees maintain that they park= their tractor and trailer in their 30´ by 80´ garage.

We conclu= de that because this fact is material to the determination of whether Appellees’ use= of their property constitutes a home occupation, and is in dispute, summary judgment is not appropriate on this issue.

For the parties’ guidance, we now note that, should the evidence presented a= t the merits hearing lead this Court to conclude that the tractor or trailer is parked outside, such a finding would result in the Court determining that = the Zoning Administrator’s initial determination of a zoning violation s= hould be upheld. Stated differentl= y, we hold, as a matter of law, that the parking of Appellees’ tractor(s) = or trailer(s) in Appellees’ yard or driveway, or permitting either to h= ave their engines idling in the yard or driveway of an extended period of time, would not constitute a “home occupation” as contemplated by the Bakersfield Zoning Bylaws

Such use = of residential property would not be “incidental” to its primary use―residential
―and would not, in this Court’s estimation, fall within the “exterior manifestation” of a permitted home occupation, as al= lowed by our Supreme Court in In Re Appeal of Herrick, 170 Vt. 549, 552 (1999).

Thus, due= to the remaining disputed fact of where Appellees store or park the tractor(s) or trailer(s) on their property, we must DENY Appellants’ Motion for Summary Judgment. This matter shall be set for a me= rits hearing pursuant to a Notice of Hearing to be issued by the Court Manager.=

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Done at Berlin, Vermont, this 30^th day of J= une, 2005

________= _________________________ = Thomas S. Durkin, Environmental Judge =