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Home My WebLink AboutBATCH - Supplemental - 1301 1325 Shelburne Road (2)STEVEN F. STITZEL PATTI R. PAGE* JOSEPH S. McLEAN (-AISO ADMl1 ED IN N.Y.) STITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 BURLINGTON, VERMONT 05402-1507 (802) 660-2555 (VOICFITDD) FAX (802) 660-2552 August 26, 1996 Mr. Richard Ward Zoning Administrator City of South Burlington 575 Dorset Street South Burlington, VT 05403 OF COUNSEL ARTHUR W. CERNOSIA ROBERT E. FLETCHER Re: Lewis Motors -- Extension of Non -conforming Use -- Variance Dear Dick: I am writing in response to your request relative to the above -referenced matter. Specifically, you have asked whether a variance is required to construct a non -conforming automobile repair facility on the same lot with another pre-existing, non- conforming use. It is our opinion that such a variance is required. It is my understanding that the City has received an application to construct a 65' by 125' free-standing repair facility on property currently used by Lewis Motors as a automobile dealership. The Lewis Motors property is located in the Commercial 1 District (Cl). The South Burlington Zoning Regulations do not list automobile sales or automobile repair and service as either permitted or conditional uses in the C1 District. See South Buriing"Lon Zoning Regulations, §§12.10-20. The Lewis Motors' sales facility is allowed in the C1 District, however, as a pre-existing, non -conforming use. Id. at §26.00. It is our opinion that the construction of the proposed repair facility would require a variance from §26.004 of the Zoning Regulations. That provision states that "[n]o non- conforming use of a building, structure or land shall be changed to another non -conforming use." Since automobile repair and service is not allowed in the C1 District, the construction of a free-standing repair facility would change a portion of the land currently used in a non -conforming manner (i*e., automobile sales) to another non -conforming use (i.e., repair facility). As noted above, §26.004 expressly prohibits such a change of use. See also Anderson, American Law of Zoning (4th ed. 1995) at §6.36 ("[t]he continuance of a non -conforming use is the continuance of Richard Ward Page 2 August 26, 1996 the same use and not some other kind of use"). Therefore, the applicant must obtain a variance from §26.004 to construct the proposed repair facility. Further, §26.003 of the Zoning Regulations expressly prohibits the extension or enlargement of non -conforming uses.' "An enlargement or expansion of a non -conforming use . . . is indicated where new facilities or a new product is involved." Vermont Brick v. Village of Essex Junction, 135 Vt. 481, 483 (1977). Undeniably, the construction of a new repair facility on the Lewis Motors lot, while complementing the pre-existing automobile dealership, differs significantly from the prior non- conforming use. It is our opinion that such construction would constitute an extension and enlargement of the non -conforming use.2 Therefore, the proposed construction would also require a variance from §26.003 of the Zoning Bylaw. I hope that this letter is responsive to your request. Please let me know if you have any questions. Very truly yours, Joseph S. McLean SON3091.COR ' The second sentence of §26.003 provides that "[t]he extension of a lawful use to any portion of a non -complying building or structure which existed prior to the enactment of these regulations shall not be deemed the extension of a non -conforming use." This provision is not applicable here since the proposed repair facility will not extend a lawful use to any portion of a non -complying building or structure. It is the use of the Lewis Motors lot for automobile sales that is non -complying, and not any particular building or structure on the lot. 2 While the South Burlington Zoning Regulations do not specifically prohibit uses accessory to non -conforming uses, the Vermont Supreme Court has implied in at least one case that an automobile sales facility is not an accessory use to an automobile repair facility. See Fleury v. Town of Essex Zoning Bd. of Adjust., 141 Vt. 411, 416 (1982). Further, 928.101 of the Zoning Regulations defines "accessory" as a "use or structure on the same lot with, and of a nature customarily incidental and subordinate to the principal use or structure." At this point, no evidence exists that repair facilities are "customarily incidental and subordinate" to automobile dealerships in the Cl District. 2 City of South Burlington 575 DORSET STREET SOUTH BURLINGTON, VERMONT 05403 FAX 658-4748 PLANNER 658-7955 July 29, 1996 Mr. Alexander Lewis Lewis Motors 1325 Shelburne Road South Burlington, Vermont 05403 Re: Zoning Appeal Dear Mr. Lewis: ZONING ADMINISTRATOR 658-7958 Be advised that the South Burlington Zoning Board of Adjustment will hold a public hearing at the City Offices, Conference Room, 575 Dorset Street, South Burlington, Vermont on Monday, August 12, 1996 at 7:00 P.M. to consider your request for a zoning variance. Please plan to attend this hearing and be prepared to address the enclosed review criteria. If you have any questions, please don't hesitate to call me. RW/mcp 1 Encl Very truly, Richard Ward, Zoning Administrative Officer STBVSN P. S11T2:HL FATn IL PAGNO 101EPH 1.MoLSAN pnuo Aneunnm oa w Y I JTITZEL & PAGE, P.C. ATTORNEYS AT LAW 171 BATTERY STREET PO BOX 1507 3URLIN0T0N, VP,RMONT 054024507 (202) M2s5! (volcmtn PAX 1021, "(),I 32 August 26, 1996 Mr. Richard Ward Zoning Administrator City of south Burlington 575 Dorset Street South Burlington, VT 05403 OF COUNaEL ARTMUR W' URNOi1A ROBERTS ILSICHER Re: Lewis Motors -- Zxtension of Non -conforming Use -- Variance Dear Dick: I am writing in response to your request r*lativs to the above -referenced matter. Specifically, you have asked whether a variance is required to construct a non -conforming automobile repair facility on the same lot with another pre --existing, non- conforming use. It is our opinion that such a variance is required. It is my understanding that the City has received an application to construct a 65' by 125' free-standing repair facility on property currently used by Lewis Motors as a automobile dealership. The Lewis Motors property is located in the Commercial 1 District (Cl). The South Burlington Zoning Regulations do not list automobile sales or automobile repair and service as either permitted or conditional uses in the C1 District. c'Llm south Burlington Zoning Regulations, SS12.10-20. The Lewis Motors' sales facility is allowed in the C1 District, however, as a pre-existing, non -conforming use. y,L at S26.00. It is our opinion that the construction of the proposed repair facility would require a variance from S26.004 of the Zoning Regulations, That provision states that "(n]o non- conforming use of a building, structure or land shall be changed to another non -conforming use." Since automobile repair and service is not allowed in the C1 District, the construction of a free-standing repair facility would change a portion of the land currently used in a non -conforming manner {i.e., automobile sales) to another non -conforming use {i•e•, repair facility). As noted above, 526.004 expressly prohibits such a change of use. 219 AlaQ Anderson, American Law of Zing (4th ed. 1995) at S6.36 ("(t1he continuance of a non -conforming use is the continuance of Richard Page 2 August Ward 26, 1996 the same use and not some other kind of use"). Wherefore, the applicant must- obtain a variance from $26.004 to construct the proposed repair facility. Further, §26,003 of the Zoning Regulations expressly prohibits the extension ar enlargement of non -conforming uses. "An enlargement or expanoion of a non -conforming use . . . is indicated where new facilities or a new product is involved." Vermont Brick, 135 Vt. at 463. Undeniably, the construction of a new repair facility on the Lawis Motors lot, while complementing the pre-existing automobile dealership, differs significantly from the prior non -conforming use. It is our opinion that such construction would constitute an extension and enlargement of the non --conforming use.2 Therefore, the proposed construction would also require a variance from S26.003 of the Zoning Bylaw. I hope that this letter is responsive to your request. Please let me know if you have any questions. Very truly c geph S. SON3091.COR yours2_� McLean The second sentence of S26.003 provides that "[t]he extension of a lawful use to any portion of a non -complying building or structure which existed prior to the enactment of these regulations shall not be deemed the extension of a non -conforming use." -.his provision is not applicable here since the proposed repair facility will not extend a lawful use to any portion of a non -complying building or structure. It is the �j}g of the Lewis Motors lot for automobile sales that is non -complying, and not any particular building or structure on the lot. While the South Burlington zoning Regulations do not speeifica:ly prohibit uses accessory tc non. -conforming uses, '-he Vermont Supreme Court has Implied in at least one case that an automobile sales facility is not an accessory use to an automobile repair facility. J= FlgkZy v. Town of Essex LQUina_A�JL,of jjjuat., 141 Vt. 411, 416 (1982). Further, §28.101 of the Zoning Regulations def.anes "accessory" as a "usa or $tr'iCtl: 9 o- tie Same 10t with, and of a nature customarily incidental and subordinate to the principal use or structure." At this point, no evidence exists that repair facilities are "customarily incidental and subordinate" to automobile dealerships in the Cl District. 2 1) ALEXANDER LEWIS - 1301-1325 SHELBURNE ROAD - D.B.A. LEWIS MmmnRq Area in question zoned Commercial I District. Existing use automobile sales & service is non -conforming use. Automobile sales conditional use within C-2 District (Section 13.214). Variance requested from Section 26.00 Non -conforming uses, sub- section 26.003 extensions. Proposed is the construction of a 65'x 126' (8,190 square feet) repair shop for the Acura dealership. Lewis Motors a 4.94 acre parcel is occupied by two automobile dealerships (Volkswagen & Acura). Volkswagen operations from a structure on the southerly portion of the lot and includes a repair facility. Lot contains 4.9 acres with 490 feet frontage on Shelburne Road and 320 feet on Holmes Road. The Agency of Transportation plans for Shelburne Road when completed will reduce curb cuts to this lot to one. However, at this time existing curb cuts remain as is. All setbacks are conforming, lot coverage 12.4% building and 57.6% pavement. Green area 30%. 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City of_�-)uth Burlington Application Board of Adjustment Official Use AT ICATION # Date 7.2 ?,6 Applicant In.�?+"i-+nl r G. L'swi5 Owner, leasee, agent Address �3y, %.�a�rir7 Telephone # Landowner AJa x,- tLr 3 L'Wl:s HEARING DATE FILING DATE FEE AMOUNT ' Address Location and description of property /,3QI- /�T]Q-�I�r�h;,� Type of application check one ( ) appeal from decision of Administrative Officer( )request for a conditional use ('/ ) request for a variance. I understand the presentation procedures required by State Law (Section 4468 of the Planning & Development Act). Also that hearings are held twice a month (second and fourth Mondays). That a legal advertisement must appeal a minimum of fifteen (15) days prior to the hearing. I agree to pay a hearing fee which is to off -set the cost of the hearing. Provisions of zoning ordinance in question Reason for appeal,.,3,�c�iis� �n,C�riirnir»r�ry7 The owner or applicant should submit along with this application (8 copies) plans, elevations, landscaping diagrams (drawn to scale) traffic data and any other additional information which will serve as support evidence to the Board. Hearing Date 'Signature of Appellant Do not write below this line SOUTH BURLINGTON ZONING NOTICE In accordance with the South Burlington Zoning Regulations and Chapter 117, Title 24, V.S.A. the South Burlington Zoning Board of Adjustment will hold a public hearing at the South Burlington Municipal Offices,.Conference Room, 575 Dorset Street, South Burlington, Vermont on X'-; Day of .Week Month and Appeal of Date at r �� -' � "� • to consider the following: me fI I, seeking a / r ly.yt (,A, from Section �` �' nW T of the South Burlington Zoning Regulations. to ale Request is for permission A� : c (,p `�O� 0 Suite 500, 57 Talcott Rd. Williston, Vermont 05495 802-879-3567 FAX 879-2967 PROPOSED SERVICE BUILDING LEWIS ACURA SHELBURNE STREET SOUTH BURLINGTON, VERMONT AWN BY BG ALE TE 10/11/95 DRW'G NO. " 11 M A.W11 ftiL a PROPOSED SOUTH ELEVATION Suite 500, 57 Talcott Rd. Williston, Vermont 05495 802-879-3567 FAX 879-2967 PROPOSED SERVICE BUILDING LEWIS ACURA SHELBURNE STREET SOUTH BURLINGTON, VERMONT AWN BY Bc ALE 3/32"=1'- TE II/6/95 3 9519 DRW'G NO. ti .� /moo 9