HomeMy WebLinkAboutSD-18-16 - Supplemental - 0907 Shelburne Road (2)Page is too large to OCR.
PRIMMER PIPER
EGGLESTON
CRAMER PC
30 Main Street, Suite 5001 P.O. Box 1489 1 Burlington, VT 05402-1489
MEMORANDUM
DATE: July 31, 2018
TO: Skip Vallee
CC: Chris Galipeau
FROM: Jon Anderson
RE: Response to City of South Burlington Staff Comments Prepared for the June 5,
2018 Meeting Concerning Your Project on Shelburne Road as Redesigned
Staff comments prepared for the June 5, 2018 meeting of the South Burlington
Development Review Board ("DRB') articulated six Concerns about your project on Shelburne
Road in South Burlington. I understand that you are considering some changes. In order to
resolve Concerns 2d and 5, you propose to eliminate any parking between the store portion of
your building and Shelburne Road. Second, in order to address Concern 2b, you have redesigned
the building so that you can take payment for gas sales on the gas station lot.'
This memo responds to the remaining Staff Concerns (except Concern 3, which will be
addressed by traffic consultants) as follows:
Concern 1: Overall site coverage will be maintained at 70% or less.
2. Concern 2a: I understand Staffs comments to indicate that you can alter the
existing canopy/pump structures as long as you do not spend more than $125,000
on such alterations. This limit does not apply to the portion of the store structure
to be located on the gas station lot since it is not an addition to the nonconforming
canopy structure. Note that the square footage of all the buildings on the gas
station lot decreases as a result of your proposal. Notwithstanding the comments
' I do not believe this change is necessary since taking money is an office type use. Office uses are legal in the
Commercial I Residential 15 Zoning District. At least two Veiwont cases recognize that an office use is just that.
An office use need not become a religious use because churches are managed from (lie office. Vermont Baplisl
Convention v. Burlington Zoning Board, 159 Vt. 28, 613 A.2d 750 (1992). Nor does an office use become a
restaurant delivery use because the delivery of restaurant food is managed from the office. In re Appeal of Heldr,
2002WL 34422449 (2002). In the same way Vallee's taking money for gas sales remain an office use as long as the
gas is not sold on the store/office site.
MAINE I NEW HAMPSHIRE I VERMONT I WASHINGTON, D.C.
www.primmer.com
3480185.1
Skip Vallee July 31, 2018
Page 2 of 8
of some Board members at the recent hearing, the Staff seemed to agree with our
position. You may want to get clarity on this.
3. Concern 2b: You are not changing the use of the northern lot. Whether or not
posts on the YELP site accurately describe the use of Skip Hoechner's land, his
testimony is and will continue to be that his activities equate to a service station
use. The use at the site has been described as a service station in the three (all)
previous zoning proceedings approving construction at the site.
4. Concern 2c: You are not enlarging a non -conforming use: Changes in the
amount of nonconforming use are measured by changes in the area of use or by
the addition of new services or products, but not by changes in the traffic
generation resulting from the increased sales of an existing product or use. For
example, in In re Howard Center Renovation Permit (South Burlington School
District, 196 Vt. 542, 99 A.3d 1013, 2014 Vt. 60, Appellant, a methadone clinic
was found to be a medical office that did not require additional permitting
because it was occupying the same space as measured by square footage. The
Court rejected the notion that a change in use could be premised on changes in
traffic generation.
In re Appeal of Pearl Street Mobil, 2001 W.L. 36140139, holds that the addition
of a gas station canopy over an area already used for gas station sales did not
entail the enlargement of the nonconforming gas station use:
Neither § 4408 nor section 20.1.6 of the City's ordinance define
"enlargement of nonconforming use," however. We must,
therefore, construe both sections under the general riles of
statutory construction. See In re Miserocchi, 170 Vt. 320, 324, 749
A.2d 607 (2000) (zoning ordinances are construed using general
riles of statutory construction). The plain and ordinary meaning of
the regulation's words will control absent some ambiguity. Id. Any
ambiguity must be construed in the landowner's favor, id., even
though an important goal of zoning is to eliminate nonconforming
uses. Vt. Brick & Block, Inc. v. Vill. of Essex Junction, 135 Vt. 481,
483, 380 A.2d 67 (1977).
To "enlarge" means to make larger or to increase. Black's Law
Dictionary 366 (abr. 6th ed.1991). Thus, an enlargement of a
nonconforming use means to increase or to make larger the use
that is nonconforming. That meaning is consistent with our holding
in Vt. Brick & Block, Inc. In that case, a company that
manufactured concrete bricks and blocks and sold sand, gravel,
stone and cement in bulk form for construction operated as a
nonconforming use in an area designated for residential,
recreational and agricultural use. It sought to start a custom
Skip Vallee
July 31, 2018
Page 3 of 8
concrete business which required new trucks and the installation of
a new cement auger in a cement tower on the premises. The new
business entailed loading the trucks with the necessary materials
for delivery to the customer's site where the concrete would be
mixed inside the truck. We lield that the new product (custom
concrete), which required new facilities (the new cement tower
auger and new trucks), was an expansion and enlargement of the
company's existing nonconforming use because the use was far
different than its existing "use of on -premises manufacture of
concrete bricks and blocks and sale of building materials." Vt.
Brick R Block, hrc., 135 Vt. at 483-84, 380 A.2d 67. In other
words, the new business, evidenced by new facilities and a new
product, constituted a larger or increased use not permitted by the
residential, recreational and agricultural use designation for the
area in which the company's business was situated.
The Pearl Street Mobil case continues by citing a number of other cases
where proposed changes were found not to enlarge or extend a
nonconforming use even though the change might generate additional
traffic:
Cf. Bd. of A(Ijustment v. Brown, 969 S.W.2d 214, 215—I6
(Ky.Ct.App.1998) (enclosing front porch, adding siding, adding a
bathroom to an auction house and increasing number of auctions
per week did not constitute an enlargement of auction house's
nonconforming use); IVLH Dlgrnt. Corp. v. Town o/ Kitter;p, 639
A.2d 108, 109-10 (Me.] 994) (addition of canopy and siding over
restaurant's outdoor deck which was already in use Nvas not
expansion of nonconforming use); Clark v. Richardson, 24
N.C.App. 556, 211 S.E.2d 530, 531 (N.C.Ct.App.1975) (enclosing
existing porch on building used by grocery store not an
enlargement of nonconforming use); Cite (?f Spring halle), v.
Hurst, 530 S.W.2d 599, 601 (Tex.App.1975) (erection of new
building to store materials currently stored outside premises is not
all extension of nonconforming use where business will remain the
same as in the past and no new or added activities will be carried
out).
Franklin Cormly v. 00, of St. Albans, ] 54 Vt. 327, 576 A.2d 135 91990) holds
that the resumption of overnight lodging at a jail was not an expansion of a
nonconforming use even though the change might be expected to increase traffic
generation from near zero without overnight lodging to some higher level with
overnight lodging.
In the present case, the use of the jail changed significantly in
Skip Vallee
July 31, 2018
Page 4 of 8
1981, but the jail did not disappear. A reduction in the level of
activities does not imply abandonment. Union Quarries, Ine. v.
Board of County Conan'r, 206 Kan. 268, 274-76, 478 P.2d 181,
187 (1970) (no abandonment by operators of quarry, who left large
stockpile of rock and equipment, paid royalties, sold small
quantities of rock, and quoted prices for crushed rock); McLay v.
Maryland Assemblies, Inc., 269 Md. 465, 470, 306 A.2d 524, 527
(1973) (ammunition manufacturer which kept equipment in place
and kept office open, despite lack of orders, did not abandon
nonconforming use); City of Binghamton v. Gartell, 275 A.D. 457,
462, 90 N.Y.S.2d 556, 560-61 (1949) (occasional *331 purchase of
junk in the conduct of business shows lack of substantial evidence
to establish abandonment); Donham v. E.L.B., Inc., 8 Ohio Misc.2d
31, 33, 457 N.E.2d 953, 956 (1983) (junkyard owner continued at
least sonne prior uses, including storage and some buying aid
selling of junk, and did not abandon nonconforming use); In re
Haller Baking Co., 295 Pa. 257, 263, 145 A. 77, 79-80 (1928) (use
of stable diminished materially, but the stable was still used for its
original purpose and was not abandoned).
The Supreme Court explicitly rejected the notion that increasing the level
of activity —and presumably traffic—announted to an expansion in use:
The trial court went on to conclude that even if the nonconforming
use level of activity were to be frozen at the post-1981 level, the
resumption of the facility's use xx138 for overnight prisoners was
merely an increase in volume and intensity, not a proscribed
change z See Black v. Town of Montclair, 34 N.J. 105, 117-18, 167
A.2d 388, 395 (1961); Rtnlnm v. C.P. Craska, Inc., 59 A.D.2d 1016,
1017, 399 N.Y.S.2d 749, 750 (1977); 1 R. Anderson, American
Law of Zoning 565, 597 (3d ed. 1986). That conclusion was
similarly without error.
Appeal of Gary and Suzanne Gregoire, 170 Vt. 556, 742 A.2d 1232 (1999) holds
that in the case of a use with substantial outdoor activity such as a camp or a gas
station, expansion should be measured by changes in the use of the land and not
changes in the buildings. Vallee does not propose to change the use of the land
comprising the gas station lot. Like the land in Gregoire all of the land will
continue to be used for a nonconforming use. Whether the buildings move
around, the use of the lot is not expanding. All of the service station lot has been
and will continue to be used as a service station.
In re Vermont Brick R Block, Inc. v. the Village of Essex Junction, 135 Vt. 481,
380 A.2d 67 (2001), the Vermont Supreme Court ruled the addition of substantial
new equipment to mix and deliver concrete off site was indeed an expansion of a
Skip Vallee
July 31, 2018
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business that previously made and sold concrete bricks and blocks on site and
sold other building materials. Unlike Vermont Brick & Block, Vallee does not
propose to open a new business line at the service station property; rather, Vallee
seeks to focus on reducing structures for one component of use and increasing for
another, with overall reduction in structures dedicated to that use.
In re Appeal o/ YVesco, hic., 180 Vt. 520, 904 A.2d 1105, 2006 Vt. 52, the
Vermont Supreme Court held that a nonconforming gas station use was not
enlarged by converting the former garage area of the site to a convenience store
even though such conversion was expected to increase traffic (public use) of the
site.
We also note that there is no increase in floor area because the
footprint of the building has not changed and all of the space was
used by the office and automobile service facilities. See Barre
Zoning Ordinance § 5.2.03 (defining floor area as "the gross
horizontal area of the floors of a building"). Thus, the only
argument that the City can make is that there will be increased use
of a noncomplying structure.
¶ 25, Part of the City's argument is not supported by the wording
of the ordinance. The City argues that the level of *528 use should
be measured exclusively by the amount of public use. The
ordinance does not use the word "public," and we see no grounds
to add it. Under that argument, structures that had no public use —
for example, a factory —could never be converted to some public
use even if the extent of use overall went down by any measure.
(emphasis added).
The 1Vesco, decision also held that the addition of a canopy does not increase the
nonconforming use of the property. All of the property was previously used and
will continue to be used as a service station.
¶ 31. The City's main argument on this point is that the canopy is a
separate structure and not part of the preexisting pumps and pump
island so it is not part of a nonconforming use. The purpose of the
structure is solely to light, shelter and protect the gasoline pumps;
it is difficult to separate the canopy fi-om the pumping apparatus.
Thus, we believe that court's application of the zoning ordinance is
not "clearly erroneous, arbitrary, or capricious," In re Cowan, 2005
VT 126, ¶ 7, 892 A.2d 207, and affirm the decision as within our
limited standard of review.
Skip Vallee
July 31, 2018
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5. Concern 4: Although we respect the need for affordable housing, we continue to
believe that the ordinance language referencing the City Plan and the Plan itself
do not state enforceable standards. Only specific and clear zoning bylaw
standards can be enforced. In re IVeeks, 167 Vt. 551, 555, 712 A.2d 907, 910
(1998). This is particularly important since I understand only 5 of the 15 or so
units are being used.
As case law has evolved, an enforceable standard is now required to contain two
elements: (i) a mandatory verb directing (ii) the application of clear standards
prohibiting the project as proposed. Southwestern Vermont Health Care
Corporation, #8B0537-EB (2001) is a leading case articulating the requirement
for a mandatory verb. In that case the Environmental Board held that a project
was prohibited by a plan providing that "high quality agricultural land [and]
scenic resources shall be protected."
In re JAM Golf Course, LLC, 185 Vt. 201 (2008), which considered the South
Burlington zoning regulations, articulates the need for the mandatory verb to be
coupled with a sufficiently clear standard. In that case, the Vermont Supreme
Court ruled that a project was not prohibited by a plan provision requiring project
designs "to protect important natural resources including scenic views" even
though this language is similar to the language found enforceable in the
Southwestern Vermont Health Care Case. The Vermont Supreme Court
explained: "We will not uphold a standard that fails to provide adequate guidance
leading to unbridled discretion."
Staff Comments state that the relevant portion of the South Burlington Zoning
Regulations is as follows:
A. Relationship of Proposed Development to the City of South
Burlington Comprehensive Plan. Due attention by the applicant should
be given to the goals and objectives and the stated land use policies for the
City of South Burlington as set forth in the Comprehensive Plan.
This provision is not enforceable first because it contains only a non -mandatory
verb —should —and second because it does not contain a sufficiently clear
standard —clue attention.
Staff Comments also cite the following goals and objectives fronn the South
Burlington Plan:
The Comprehensive Plan states that one of the needs related to the City's
housing stock is:
Skip Vallee July 31, 2018
Page 7 of 8
Preserving and promoting the development of additional housing
that is affordable to households of all income levels throughout
the City.
In the Southwest quadrant, a specific objective is to:
Promote higher -density, mixed use development and
redevelopment along Shelbarne Road and foster effective
transitions to adjacent residential areas.
Neither of these statements imposes an enforceable obligation however. Neither
contains a mandatory verb or a clear standard to be applied.
6. Concern 6: I continue to believe that the project may be approved as a PUD as
long as the project complies with the standards for approval as stated in SBZR
§ 15.18. SBZR § 15.01 states that PUDs will be allowed to "encourage
innovation in design and layout, efficient use of land, and the viability of infill
development and redevelopment." This provision does not contain enforceable
standards. As noted above, generalized statements phrased in non -regulatory
abstractions may not be given the legal force of zoning. In re Group Fine
Investments CUPermit, 195 Vt. 625, 93 A.3d 111, 2014 Vt. 14.
Regan v. Pomerleau, 197 Vt. 449, 107 A.3d 327, 2014 Vt. 99 approved a permit
complying with applicable standards for approval without also requiring the
project to address non -regulatory abstractions contained in a purpose section of an
ordinance. In that case, the purpose section encouraged development that "places
emphasis on architectural details, ... the orientation of primary entrance to a
street and the reinforcement of historical building patterns." The Supreme Court
held:
As we have observed, " `[b]road policy statements phrased as
nonregulatoy abstractions' are not equivalent to enforceable restrictions."
bi re Chaves A250 Permit, 2014 VT 5, ¶ 38, 195 Vt. 467, 93 A.3d 69
(quoting In re John A. Russell Coip., 2003 VT 93, 116, 176 Vt. 520, 838
A.2d 906 (mem.)). The language relied on by Friends, "encourag[ing] ...
historic development patterns," is broadly aspirational rather than
mandatory and sets forth no specific enforceable standards. See id. ¶¶ 40-
41 (holding that town plan's policy of maintaining "man-made features ...
of local scenic, cultural and historic significance" contained "no specific
requirements that are legally enforceable"); In re JAM Golf, LLC, 2008.
VT 110,111( 13-14, 185 Vt. 201, 969 A.2d 47 *458 (holding that ordinance
which required design to "protect" natural resources created no
enforceable standard). Accordingly, we find no error.
Skip Vallee July 31, 2018
Page 8 of 8
See also In re Howard Center Renovation Permit, 196 Vt. 542, 99 A.3d 1013,
2014 Vt. 60 rejecting a similar attempt to turn a statement of purpose into a
regulatory standard.
¶ 16. The [South Burlington School] District also relies on the
Regulations' introductory "purpose" statement, to the effect that the goal
of the Regulations is "to promote the health, safety, and general welfare of
the couununity." Regulations § 1.01. We reject the argument, as that
section does not even purport to establish an enforceable standard for
evaluating zoning permits of this nature, much less a standard which
provides adequate notice to property owners and guidance to municipal
decisionmakers. See In re JAM Golf LLC, 2008 VT 110, ¶ 13, 185 Vt.
201, 969 A.2d 47 (holding that zoning ordinance must specify sufficient
standards "to guide applicants and decisionmakers," and will not be
enforced where it fails to do so and thereby leaves "unbridled discretion"
to administrators and courts charged with its interpretation).
Please let me know if you need other information.
JTA/alb
PRIMMER PIPER
EGGLESTON
CRAMER PC
30 Main Street, Suite 5001 P.O. Box 1489 1 Burlington, VT 05402-1489
August 15, 2018
VIA E-MAIL TO mkeenena,sburl.com
Marla Keene, P.E., Development Review Planner
Planning & Zoning Department
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Dear Ms. Keene:
JON T. ANDERSON
ADMITTED IN VT
janderson@primmer.com
TEL: 802-864-0880
FAX: 802-864-0328
This letter responds to the two legal questions raised by Development Review Board
members at R.L. Vallee, Inc.'s ("Vallee") last hearing. I am submitting this letter now in
advance of the next hearing to allow the City Attorney and Board members time to study
Vallee's position.
1. Question 1: Is taking money for offsite gasoline sales a permitted office use at the
store site?
Yes. Office uses are permitted as of right in the Commercial 1 Residential 15
Zoning District where the store site is located. South Burlington Zoning
Regulations define general office use as follows:
Office, general. A building or portion thereof used primarily for
conducting the affairs of a business, profession, service, industry,
or government, or like activity, that may include ancillary services
for employees and visitors such as a restaurant or coffee shop, and
newspaper/candy stand as permitted by these Land Development
Regulations. This may also be known as a professional building.
Building occupancy may be limited to one tenant or more tenants
and/or the building's owner.
Multiple uses are allowed on any lot in the Commercial 1 Residential Zoning
District. South Burlington Zoning Regulations, § 3.09. Thus, Vallee can operate
a facility that conducts both retail activities (selling groceries) and office
functions (receiving money from offsite gasoline sales).
At least two Vermont cases recognize that the nature of the use depends on how a
site is used and not the product that the site is used to support. An office use is an
MAINE I NEW HAMPSHIRE I VERMONT I WASHINGTON, D.C.
3493076 2 www.primmer.com
Ms. Marla Keene
August 15, 2018
Page 2 of 11
office use and need not become a religious use because churches are managed
from the office. Vermont Baptist Convention v. Burlington Zoning Board, 159 Vt.
28, 613 A.2d 750 (1992). Nor does a food delivery business become a restaurant
use because the delivery of restaurant food is managed from the food delivery
site. In re Appeal of Hehir, 2002WL 34422449 (2002). Vallee's taking money at
the store site for offsite sales is an office use regardless of the nature of the
product Vallee sells offsite.
Consider an increasingly common business model where truckers fill their
vehicles with diesel fuel at a pumping site maintained only for that purpose.
Equipment at the pumping site records who purchases the fuel. The truckers then
pay for the fuel by sending a check or other form of payment to an office
maintained by the owner of the pump site. The pumping site is a service station
while the site where bills are paid is an office. Vallee's proposes exactly this
arrangement, with users paying with check, cash, charge accounts or credit cards.
Cases from other states support this conclusion that taking payment for offsite gas
sales is an office use. Office uses are commonly recognized as including the
function of taking and processing money. DiBlase v. Zoning Board of Appeals of
Town of Litchfield, 224 Conn. 823, 624 A.2d 372 (1992) (payment of utility bills);
Alecta Real Estate Greenwich, Inc. v. Planning and Zoning, 33 Conn. L. Rptr 277
(2002) (accepting deposits, honoring and processing drafts).
Several cases recognize the difference between an office use that includes only
activities for conducting the affairs of a business such as processing payments
from its business operations versus conducting the actual business activities. In
State v. Quality Management Associates of New Jersey, Inc., 2011 W.L. 9827
(Superior Court of New Jersey 2010), the land owner ("QMA") owned "a
business contracted and licensed by the Division of Development Disabilities
(DDD) to provide residential, housing and nontraditional supports to adults with
developmental disabilities." QMA sought to use the first floor of its building for
its business activities: "training" its clients to be "employable individuals by
providing them with life skills training, education and vocational skills." The
New Jersey court ruled that QMA's proposed use was not an office use:
The Ordinance is clear that a "[b]usiness [o]ffice" excludes offices
maintained for the conduct of a business, as opposed to its
administration, and that "professional uses" are prohibited in the
"[b]usiness [o]ffice[.]" QMA, in conducting on -site adult training
programs, which admittedly constitutes its business product, is
conducting an unauthorized use in a "[b]usiness [o]ffice."
We disagree with defendant's contention that a "[b]usiness
[o]ffice" must include an "office" maintained to conduct the
entity's actual business. The term "office" contains no such
connotation intrinsically.
3493076.2
Ms. Marla Keene
August 15, 2018
Page 3 of 11
Similarly, in People v. Hirsch, 531 N.Y.S.2d 865 (Criminal Court, Kings County
1988), the City of New York prosecuted a business owner who sought to convert
his business from a "factory and store" to a "factory and office" without
permitting the conversion. The Court ruled:
[N]either the Administrative Code nor the pleadings here should be
considered vague because they do not define or explain the words
"office" and "store." These words are commonly used and
understood. An "office" is defined as "the building, room or series
of rooms in which the affairs of a business ... are carried on"
(Webster's New Twentieth Century Dictionary, Unabridged 2d ed.
1243); and as "a place for the regular transaction of business or
performance of a particular service" (Black's Law Dictionary, 5th
ed. 977). A "store" is defined as "an establishment where goods
are regularly offered for sale" (Webster's 2d, ed., supra at 1796);
and "any place where goods are deposited and sold by one engaged
in buying and selling them" (Black's 5th ed., supra at 1273).
In other words, Vallee's proposal to collect money for off -site gas sales is an
office use even though collecting money for gas sales on site would be a retail
use.
In Westgate Professional Center, Inc. v. Zoning Hearing Board of Hanover
Township, 60 Pa. D. & C.2d 653 (1972), the permit applicant claimed that a
structure housing a health club qualified as an office which was defined as a place
in which the business of an individual, corporation, or general business is carried
out." The Court, recognizing the difference between an office use to conduct the
affairs of a business activity and the business activity itself, rejected this
argument.
[T]he most obvious reason we have for resisting appellant's
interpretation of the word "office" is that it renders the term
meaningless for purposes of zoning classification. Almost all
businesses are carried on in a room or building. Thus, the
distortion quickly follows the picture which appellant is attempting
to project. Structures devoted entirely to the housing of bowling
alleys, tennis courts, beauty salons, dance studios and innumerable
similar businesses would have to be embraced in the term "office"
if we uphold appellant's definition of that word.
2. Is the potential for increased traffic an indicator that a non -conforming use is
being enlarged or extended?
No. In cases such as this one where the area of building use is not changing
beyond what is allowed by the ordinance for non -conforming uses, non-
3493076.2
Ms. Marla Keene
August 15, 2018
Page 4 of 11
conforming use extensions or enlargements are indicated by increases in the land
or the total building area being used or by the addition of new services or
products, but not by changes in the mix of sales for that use. See, e.g. 2 Am Law
Zoning § 12.19 (51" ed.). Vallee does not propose to increase the area of "service
station use". The entirety of the lot is now used for a service station use and,
under Vallee's proposal, the entirety of the lot will continue to be used for a
service station use. Nor does Vallee propose to increase the size of the buildings
being used for the non -conforming use. To the contrary, Vallee proposes to
decrease the aggregate size of the buildings being used for the non -conforming
use. Finally, Vallee does not propose to open a new line of business. Gasoline
has been sold on the service station lot for years.
Changes in Business Mix: Vallee can change the product mix to include more gas
sales. The service station is selling gas now. As zoning cases frequently
recognize, by itself, a change that might result in more traffic or more gas sales
may be an intensification of a non -conforming use, but it is not an expansion of a
nonconforming use if the area of use or building size remains the same or
decreases. For example, in In re Howard Center Renovation Permit (South
Burlington School District, 196 Vt. 542, 99 A.3d 1013, 2014 Vt. 60, Appellant, a
methadone clinic, was found to be a medical office that did not require additional
permitting because it was occupying the same space as occupied by a medical
office in an existing building. The Court explicitly rejected the notion that a
change in use could be premised on changes in traffic generation.
In re Pearl Street Mobil, 2001 W.L. 36140139, which is discussed further below,
cites a number of other cases where proposed changes were found not to enlarge
or extend a nonconforming use. In several of the cited cases, buildings were
altered and expanded to include more structures or more finished area. These
cases found that a pre-existing use was not expanded because the surface area of
use did not change although additional traffic should have been anticipated from
these changes:
Cf. Bd. of Adjustment v. Brown, 969 S. W.2d 214, 215-16
(Ky.Ct.App.1998) (enclosing front porch, adding siding, adding a
bathroom to an auction house and increasing number of auctions
per week did not constitute an enlargement of auction house's
nonconforming use); WLH Mgmt. Corp. v. Town of Kittery, 639
A.2d 108, 109-10 (Me.1994) (addition of canopy and siding over
restaurant's outdoor deck which was already in use was not
expansion of nonconforming use); Clark v. Richardson, 24
N.C.App. 556, 211 S.E.2d 530, 531 (N.C.Ct.App.1975) (enclosing
existing porch on building used by grocery store not an
enlargement of nonconforming use); City of Spring Valley v.
Hurst, 530 S.W.2d 599, 601 (Tex.App.1975) (erection of new
building to store materials currently stored outside premises is not
an extension of nonconforming use where business will remain the
3493076.2
Ms. Marla Keene August 15, 2018
Page 5 of 11
same as in the past and no new or added activities will be carried
out).
In re Appeal of Wesco, Inc., 180 Vt. 520, 904 A.2d 1105, 2006 Vt. 52 (emphasis
added), the Vermont Supreme Court held that a nonconforming use was not
enlarged by converting the former garage area of a gas station building to a
convenience store even though such conversion was expected to increase traffic
(public use) of the site.
We also note that there is no increase in floor area because the
footprint of the building has not changed and all of the space was
used by the office and automobile service facilities. See Barre
Zoning Ordinance § 5.2.03 (defining floor area as "the gross
horizontal area of the floors of a building"). Thus, the only
argument that the City can make is that there will be increased use
of a noncomplying structure.
¶ 25. Part of the City's argument is not supported by the wording
of the ordinance. The City argues that the level of *528 use should
be measured exclusively by the amount of public use. The
ordinance does not use the word "public," and we see no grounds
to add it. Under that argument, structures that had no public use —
for example, a factory —could never be converted to some public
use even if the extent of use overall went down by any measure.
Franklin County v. City of St. Albans, 154 Vt. 327, 576 A.2d 135 (1990) held that
the resumption of overnight lodging at a jail was not an expansion of a
nonconforming use even though the change might have been expected to increase
traffic generation from near zero without overnight lodging to some higher level
with overnight lodging. The Vermont Supreme Court explicitly rejected the
notion that increasing the level of activity —and presumably traffic —amounted to
an expansion in use.
The trial court went on to conclude that even if the nonconforming
use level of activity were to be frozen at the post-1981 level, the
resumption of the facility's use **138 for overnight prisoners was
merely an increase in volume and intensity, not a proscribed
change.2 See Black v. Town of Montclair, 34 N.J. 105, 117-18, 167
A.2d 388, 395 (1961); Ruhm v. C.P. Craska, Inc., 59 A.D.2d 1016,
1017, 399 N.Y.S.2d 749, 750 (1977); 1 R. Anderson, American
Law of Zoning 565, 597 (3d ed. 1986). That conclusion was
similarly without error.
See also Cohen v. Duncan, 970 A.2d 550 (Supreme Court of Rhode Island, 2009)
("A mere increase in the amount of business done in pursuit of a non -conforming
use does not constitute a change of the use itself.")
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In Helicopter Associates v. City of Stamford, 201 Conn. 700, 519 A.2d 49 (1986),
a private heliport operator shortened a cyclone fence, added paving, painted
helicopter landing lines and installed a directional windsock apparently without
changing the size of buildings or the area of use at the site. The operator also
purchased several helicopters, hired two full-time pilots and began to solicit
business from the regional corporate community and sought to expand the number
of flights from a total of ten ever. The Court noted: "We have previously held
that a mere increase in the amount of business done pursuant to a nonconforming
use is not an illegal expansion of the original use." Nevertheless, the Connecticut
Supreme Court held that the use of heliport expanded if it handled more than
thirty-six flights a day since at that level the heliport entered a new class of
operation requiring it to obtain further approvals from the State of Connecticut.
Following the reasoning of this case, Vallee is not proposing to expand the use of
the gas station site since Vallee is not expanding the area of use and it is not
transforming the site from one class of gas stations to another.
In Keiser v. Redding Zoning Board of Appeals, 1993 WL 183471 (Superior Court
of Danbury, Connecticut), a religious group expanded the number of services it
held without changing the size of its structure or the area of land use. The trial
court held that the "increase in the traffic generated by the church services alone
is not an illegal expansion of the original use." The use was not expanded or
enlarged even if it generated more traffic.
In Trip Associates, Inc. v. Mayor and City of Baltimore, 392 Md. 563, 898 A.2d
449 (2006), a restaurant owner sought to expand from two the number of nights
when his building was used for exotic dancing without expanding the size of the
facilities. The Supreme Court of Maryland held that the proposed change was not
an unlawful extension of use but rather a legal intensification of use. Again, the
use was not enlarged even if more traffic was drawn to the site.
In Green v. Garrett, 192 Md. 52, 63 A.2d 326 (1949), the owner of Baltimore
Stadium sought to use the stadium, apparently without increasing its size, for
professional baseball games after a fire destroyed Orioles Park. The Stadium was
previously used for amateur football games and only infrequently for amateur
baseball games. Whether or not the Orioles were a contending team, their
presence would certainly be expected to increase traffic. Nevertheless, the
Maryland Supreme Court ruled:
"We have never held that the more frequent use of a property for a
purpose which does not conform to the ordinary restrictions of the
neighborhood is an extension of an infrequent use of the same
building for a similar purpose. We do not think such a contention
is tenable. Nor does it seem to us that a different use if made of
the Stadium when the players of games there are paid. The use of
the property remains the same."
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In Board of Selectmen of Blackstone v. Tellestone, 4 Mass.App.Ct., 348 N.E.2d
110 (1976), the trial court judge sought to limit a property owner's use of his
property to the same intensity of his previous use by enjoining increased
activity.... The Supreme Court of Massachusetts vacated this injunction:
The [trial] judge found an increase in the numbers of trucks and
buses on the premises. But his ultimate finding that the defendant
`expanded his business ... in character' does not find support in
the record. Both before and after the enactment of the zoning by-
law, the defendant had contracts with the town to provide school
buses and to plow snow with his **114 own trucks and equipment.
The trucks and buses have been stored and maintained on the
premises at all material times. This does not represent a change in
character of any use. Nor does the increase in welding activity
constitute a change in the character of a use, because both before
and after the enactment of the zoning by-law, the defendant welded
and fabricated on a job -by -job basis.5 The character of a use does
not change solely by reason of an increase in its volume (Medford
v. Marinucci Bros. & Co. Inc., 344 Mass. 50, 60, 181 N.E.2d 584
(1962)), or because the hours of operation have expanded (Powers
v. Building Inspector of Barnstable, 363 Mass. at 659-660, 296
N.E.2d 491; cf. McAleer v. Board of Appeals of Barnstable, 361
Mass. 317, 323-324, 280 N.E.2d 166 (1972)), or because
improved equipment is used (Wayland v. Lee, 325 Mass. 637, 643,
91 N.E.2d 835 (1950)); Morin v. Board of Appeals of Leominster,
352 Mass. 620, 623-624, 227 N.E.2d 466 (1967); Berliner v.
Feldman, 363 Mass. 767, 775,E 298 N.E.2d 153 (1973)).
Building Inspector of Seekonk v. Amarel, 9 Mass. App. Ct. 869, 401 N.E.2d 158
(1980) reaches a similar result. In that case, the Court allowed a non -conforming
junkyard to continue using the same area of land without limiting the number of
cars that could be in the process of disassembly on that land.
Cases addressing the issue recognize that proportion of activities comprising a
single non -conforming use may vary, but the use remains the same non-
conforming use and it is not enlarged in the absence of other indicators. For
example, in Donham v. E.L.B., Inc., 457 N.E.2d 953 (1983), a junkyard remained
a junkyard even though one or more of the businesses comprising a junkyard use
(i.e. storage of junk property, auto body repair, storage of used auto parts for sale)
were discontinued and even though business levels decreased. See also In re
Wesco, 180 Vt. 520, 904 A.2d 1105, 2000 Vt. 52, in which the service station
component of use decreased with a concomitant increase in the area devoted to
the sale of convenience items. See also Hansen Brothers Enterprises, Inc. v.
Board of Supervisors of Nevada County, 12 Cal. 4th 533 (1996), holding that a
non -conforming aggregate extraction business was not discontinued when the
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gravel taking component of the business was discontinued since the rock
quarrying component continued. In Lehen v. Atlantic Highlands Zoning Board of
Adjustment, 599 A.2d 1283 (1991), the owner of combination apartment and
boarding house located in an area zoned for single family homes sought to
increase the number of apartments and concomitantly decrease the number of
boarding rooms without changing the overall size of the building. The Court
found no expansion in non -conforming use. In Ray's Stateline Market, Inc. v.
Town of Pelham, 140 N.11. 139, 655 A.2d 1068 (1995), a convenience store
operator sought to expand the sales of an existing product line —doughnuts —to
include a Dunkin Donuts facility without increasing the size of its store. The
Court ruled that the change involved only the expansion of a pre-existing business
without an expansion in the area of operation. As the Court noted: The store
owner "periodically drops or adds products or changes brands in order to increase
sales and has sold coffee and doughnuts" for many years.
Structure Changes: Courts in some states including Massachusetts and Rhode
Island may find a change in use when structures are added. For example, the
landowner in Blackstone also expanded the size of the building used for non-
conforming uses. The Massachusetts Supreme Court required the building to be
removed. This rule of Massachusetts law does not apply to Vallee's situation for
at least four reasons. First, Vallee is not expanding the overall size of structures
on the site. Rather, Vallee is reducing their size. Where the overall size of the
structures remains the same or decreases as Vallee proposes, the non -conforming
use is not expanded. In re Cohen v. Duncan, 970 A.2d 550 (2009), for example,
found no change of use when old decking that was in disrepair at a hotel was
"removed and reconfigured." Some decks were "removed" and others were
"made bigger," with the result that the new decks were "about the same size".
Second, Vermont courts allow at least some level of building expansion as long as
the area of non -conforming land use remains the same. For example, In re Appeal
of Pearl Street Mobil, 2001 W.L. 36140139, holds that the addition of a gas
station canopy over an area already used for gas station sales did not entail the
enlargement of the nonconforming gas station use:
Neither § 4408 nor section 20.1.6 of the City's ordinance define
"enlargement of nonconforming use," however. We must,
therefore, construe both sections under the general rules of
statutory construction. See In re Miserocchi, 170 Vt. 320, 324, 749
A.2d 607 (2000) (zoning ordinances are construed using general
rules of statutory construction). The plain and ordinary meaning of
the regulation's words will control absent some ambiguity. Id. Any
ambiguity must be construed in the landowner's favor, id., even
though an important goal of zoning is to eliminate nonconforming
uses. Vt. Brick & Block, Inc. v. Vill. of Essex Junction, 135 Vt. 481,
483, 380 A.2d 67 (1977).
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To "enlarge" means to make larger or to increase. Black's Law
Dictionary 366 (abr. 6th ed.1991). Thus, an enlargement of a
nonconforming use means to increase or to make larger the use
that is nonconforming. That meaning is consistent with our holding
in Vt. Brick & Block, Inc. In that case, a company that
manufactured concrete bricks and blocks and sold sand, gravel,
stone and cement in bulk form for construction operated as a
nonconforming use in an area designated for residential,
recreational and agricultural use. It sought to start a custom
concrete business which required new trucks and the installation of
a new cement auger in a cement tower on the premises. The new
business entailed loading the trucks with the necessary materials
for delivery to the customer's site where the concrete would be
mixed inside the truck. We held that the new product (custom
concrete), which required new facilities (the new cement tower
auger and new trucks), was an expansion and enlargement of the
company's existing nonconforming use because the use was far
different than its existing "use of on -premises manufacture of
concrete bricks and blocks and sale of building materials." Vt.
Brick & Block, Inc., 135 Vt. at 483-84, 380 A.2d 67. In other
words, the new business, evidenced by new facilities and a new
product, constituted a larger or increased use not permitted by the
residential, recreational and agricultural use designation for the
area in which the company's business was situated.
In re Appeal of Wesco, Inc., 180 Vt. 520, 904 A.2d 1105, 2006 Vt. 52 also holds
that the addition of a canopy structure does not increase the nonconforming use of
the property. All of the property was previously used and will continue to be used
as a service station.
¶ 31. The City's main argument on this point is that the canopy is a
separate structure and not part of the preexisting pumps and pump
island so it is not part of a nonconforming use. The purpose of the
structure is solely to light, shelter and protect the gasoline pumps;
it is difficult to separate the canopy from the pumping apparatus.
Thus, we believe that court's application of the zoning ordinance is
not "clearly erroneous, arbitrary, or capricious," In re Cowan, 2005
VT 126, ¶ 7, 892 A.2d 207, and affirm the decision as within our
limited standard of review.
Third, most cases focus on the changes in the areas of land use rather than on
building expansions at least when the non -conforming use, such as at a gas
station, includes outdoor use. Appeal of Gary and Suzanne Gregoire, 170 Vt.
556, 742 A.2d 1232 (1999) holds that in the case of a use with substantial outdoor
activity such as a camp, expansion should be measured by changes in the use of
the land and not changes in the buildings. Vallee does not propose to change the
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use of the land comprising the gas station lot. Like the land in Gregoire all of the
land will continue to be used for a nonconforming use. Whether the buildings
move around, the use of the lot is not expanding. All of the service station lot has
been and will continue to be used as a service station.
In Stagecoach Trails MHC, LLC v. Benson, 232 Ariz. 562, 307 P.3d 989 (2013),
the Supreme Court of Arizona held that trailers in a trailer park could be replaced.
The trailers were simply components of the non -conforming use which was a
trailer park including all of the yards used by park residents. Even if structures
were changed, the structures were merely components of the pre-existing, non-
conforming use which was a trailer park. The area of the park was not expanding.
[11 [81 ¶ 17 In this case we are concerned with a mobile -home park's
use as a mobile -home park, so we look to the park as a whole when
considering whether an alteration voids the park's legal
nonconforming status. Replacing a mobile home in a mobile -home
park does not amount to an expansion or replacement of the
nonconforming park: it does not alter the number of units in the
park, nor does it expand the acreage of the park. Thus, replacing
individual units is more like the replacement of individual
billboard components as they wear out or become obsolete, as in
City of Tempe v. Outdoor Systems. We therefore conclude that
replacing a mobile home in a mobile -home park is a reasonable
alteration that does not extinguish the park's status as a
nonconforming use.2
Following this case, Vallee can expand or at least change structures at this gas
station site because the land area of use is not changing. Gas canopies, etc. are
components of the non -conforming use. Components of a non -conforming use
with outdoor activity can be changed as long as the surface area of the use is not
expanded.
Finally, expansions of structures within the limits allowed by any ordinance for
the expansion of non -conforming uses and structures are, of course, allowed. For
example, in Waukesha County v. Seitz, 140 Wis. 2d 111, 409 N.W.2d 403, a
marina owner added piers and dry-docking facilities without expanding the area
occupied by his facility and within the limits of additional construction allowed
by the ordinance. The Court ruled:
We note, however, that whether this type of structural expansion
invalidates a nonconforming use is expressly controlled by statute
and ordinance, neither of which was alleged or proven in this case.
Structural repairs or alterations up to fifty percent of the structure's
fair market value are permitted by ordinance. See Waukesha
County, Wis. Shoreland and * 120 Floodland Protection Ord. §§
3.07(7)(K) and 3.15(2)(B)5 (1986).5 Section 59.97(10)(a), Stats.,
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Ms. Marla Keene August 15, 2018
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has a similar repair or alteration marker.' The **408 policy of
these restrictions is to "encourage at least some improvement and
* 121 modernization of nonconforming buildings at the expense of
extending the life expectancy of nonconforming uses." 1 R.
Anderson, supra, § 6.56, at 617. The record is devoid of any
allegation or evidence indicating that Seitz's pier expansion has
somehow violated these legislative markers.
161 To now hold that the pier expansion serves as the catalyst for the
invalidation of Seitz's nonconforming use would undercut the
intent behind the ordinance allowing some repair or alteration of
structures involved in a legal nonconforming land use. We
conclude that a violation of the statute or ordinance expressly
regulating the alteration or repair of nonconforming use structures
is required when a zoning authority claims that a structural change
has resulted in a legal nonconforming use being impermissibly
expanded. No such violation was alleged or proven in this case.
Following this case, Vallee can expand and change buildings containing a
non -conforming use at least as long as the ordinance sanctions such changes as
South Burlington's ordinance does for the change Vallee proposes. In particular,
the entire square footage of a conforming structure with a conforming use can be
reconstructed, structurally altered, restored or repaired. SBZR, § 3.11 C.
Non -conforming structures can also be altered provided that the alteration does
not exceed more than a quarter of the value of the existing structure.
Thank you for your attention to this. I look forward to any questions or comments you
may have.
Very truly ours,
A-6
J n Anderson
JTA/alb
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