HomeMy WebLinkAboutZB-90-0000 - Supplemental - 0024 San Remo DriveRICHARD A. SPOKES
JAMES D. FOLEY
RICHARD F. PETERSON, JR.
SPOKES, FOLEY & PETERSON
ATTORNEYS AT LAW
239 SOUTH UNION STREET
P. 0. BOX 986
BURLINGTON, VERMONT 05402-0986
August 1, 1990
South Burlington Zoning Board of Adjustment
575 Dorset Street
South Burlington, Vermont 05401
Re: Overhead Door Company of Burlington, Inc.
24 San Remo Drive
Dear Ladies and Gentlemen:
(802) B62-6451
(802) 863-2857
TELECOPIER
(802) 863-2859
Overhead Door Company is the owner of a building at 24 San Remo Drive.
As you know, the Company moved its central operations to Williston. It
has, however, continued to use its San Remo Drive facility for wholesaling
and the storage and distribution of doors and windows. Wholesale orders
are picked up by retailers at the San Remo Drive building or delivered
directly to retailers from the building.
Overhead Door now proposes to lease the property to University Wholesalers
which will continue to use the facility for wholesaling, storage and distribution.
The product, however, will be tires. Dick Ward has ruled that the change
from doors and windows to tires violates Section 19.004 of your Zoning
Regulations. We disagree, and thus have appealed Dick's decision to you.
We feel we are not changing the use of the property, but merely the occupant
and the product. The zoning ordinance sets forth various use classifications
including "wholesale establishments" and "storage and distribution facilities."
Uses are obviously not defined by specific product or specific service,
and Section 19.004 should be interpreted in the context of the general
use provisions used in the regulations.
When considering nonconforming use issues, courts generally consider a
similiarity factor. For example, a New Jersey court found the change from
storing half ton trucks to storing six ton trucks is not dissimiliar and
did not affect the nonconforming use status of the property. Kramer v.
Montclair, 108 A.2d 292 (1954). A New Jersey court also found that the
storage of building materials and the storage of oil are similiar and the
change in the stored product did not affect the use. Schaible v. Board
of Adjustment, 194 A 388 (1937). I am sure there are cases holding to
the contrary, but we suggest these decisions reflect the better view.
South Burlington Zoning Board
of Adjustment
August 1, 1990
Page 2
Zoning regulations are in derogation of common law property rights, and
as a result any ambiguities or uncertainties are resolved in favor of the
property owner. Murphy Motor Sales v. First National Bank, 122 Vt. 121
(1960). Adhereing to this principle is even more important when the problems
created by the Central District Zoning are considered. Overhead Door Company
has had its San Remo Drive property on the market for almost three years.
There has been no interest from prospective purchasers because of the uses
allowed in Central District 3. Frankly, the property cannot be marketed
at this time for the purposes envisioned by the City's zoning. The delay
in the Dorset Street project further complicates the existing situation.
I suspect Overhead Door is only one of several victims. An overly restrictive
interpretation of the nonconforming use provisions will deprive Overhead
Door, and undoubtedly other property owners, of any reasonable use of its
property for many years.
We hope you will consider our plight and determine that the change in occupancy
and product does not change the previous use of our San Remo Drive facility.
Thank you.
RAS:mil
Ver truly yours,
�
Richard A. Spokes ,,�'
MEMQEANDUM
To: South Burlington Zoning Board of Adjustment
From: Richard Ward, Zoning Administrative Officer
Re: 24 San Remo Drive
Date: July 25, 1990
The appeal by Attorney Richard Spokes is that of an administra-
tive decision regarding the use of a property located at 24 San
Remo Drive.
Dick Spokes will argue that the Overhead Door Company and the
University Wholesalers are a similar use which would not violate
Section 19.004 "Changing a non -conforming use of a building to
another non -conforming use." The present use of the building in
question however, has been storage (Overhead Door relocated to
Williston some time ago). The proposed use, University Whole-
salers are tire distributors. Section 1.50 Prohibited uses sub
section 1.511, automotive sales, service and rental and Section
1.513, storage and distribution facilities are clearly stated.
The adoption of the Central District has created many non-
conforming uses. We presently have five or six buildings affect-
ed by Section 19.004. Without the construction of the Dorset
Street widening, the spirit of the Central District is seriously
affected. In my opinion, the Planning Commission should consider
amending certain provisions setforth under the uses allowed
within the Central District which would allow for short term
relief.
STITZEL & PAGE, P.C.
ATTORNEYS AT LAW
171 BATTERY STREET
BURLINGTON, VERMONT 05401
TELEPHONE (802) 660-2555
FAX (802) 660-2552
STEVEN F. STITZEL August 10, 1990
PATTI R. PAGE*
(ALSO ADMITTED IN N.Y.)
Mr. Richard Ward
Administrative Officer
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Re: Overhead Door Property, San Remo Drive
Dear Dick:
You have asked whether the owner of 24 San Remo Drive,
Overhead Door Company, can lease its property to University
Wholesalers for the purpose of conducting a retail and wholesale
tire sales business.
It is my understanding that Overhead Door Company is the
owner of 24 San Remo Drive. Prior to 1989 Overhead Door used
this property to conduct its business including, sales of garage
doors and storage of inventory. In 1989 Overhead Door moved its
principal operation to a new location in Williston. Since that
time it has used its building on San Remo Drive solely for the
purpose of storing its inventory.
It is my understanding that Overhead Door now wishes to
lease its building on San Remo Drive to University Wholesalers.
University Wholesalers proposes to conduct a retail and wholesale
tire sales business on the site.
In 1988, the City of South Burlington adopted new zoning
regulations for the "City Center" portion of South Burlington.
Pursuant to these zoning regulations, the subject property is
located in the Central District 3. Retail, wholesale and
warehouse uses are not allowed in this district. Therefore, on
the date the subject zoning regulations became effective, July 4,
1988, the Overhead Door operation in existence became a non-
conforming use within the meaning of the City of South Burlington
Zoning Regulations. Further, the use proposed by University
Wholesalers is also nonconforming.
Based upon the information generally set forth above, you
concluded that the proposed use of the property by University
Wholesalers would constitute a change in use prohibited by
Section 19.004 of the zoning regulations. Section 19.004
provides that "no non -conforming use of a building, structure or
land shall be changed to another non -conforming use." Overhead
Door has appealed your decision to the Zoning Board.
Mr. Richard Ward
August 10, 1990
Page 2
The issue before the Zoning Board is the same that you
considered, whether the proposed use by University Wholesalers
constitutes a change in use. If the Board concludes that the
proposal constitutes a change in use, it should prohibit the
requested change, as you did, under Section 19.004. To decide
this issue, the Board should inquire into the specific activities
presently occurring on the property and those proposed for the
proposed use.
A change in use occurs if the specific activities occurring
on the subject property change the characterization of the use
from one use category specified in the South Burlington Zoning
Regulations to another use category. In this case, if the
existing use will change from one category of use specified in
the Central District Zoning to another category, a change in use
will occur. (For example, a change from "storage and
distribution facility" in Section 1.513 to "wholesale
establishment" in Section 1.512 constitutes a change in use.) In
making this analysis, the Board may also want to review the use
categories in the Commercial 2 District, the district previously
applicable to the subject property.
A second issue might surface during the Board's
consideration of this appeal. Section 19.006 of the South
Burlington Zoning Regulations provides that "no nonconforming use
may be resumed if such use has been abandoned for a period of six
months." This section is relevant in this case since the use of
the property by Overhead Door apparently changed in 1989. This
raises the issue whether Overhead Door abandoned its prior use of
the property. To decide this issue, the Board must consider the
several factors set forth in the section.
If the Board determines that Overhead Door did not abandon
its prior use of the property, it should compare the previous use
by Overhead Door with the proposed use by University Wholesalers.
In making this comparison, the Board should follow the same
analysis set forth above.
I hope this letter is responsive to your inquiry.
Very truly yours,
Steven F. Stitzel
SFS/mld
L:\SON098.cor
Official Use
City of South Burlington
App�ication to Board of Adjustment
Date Z�2__3 / p d f b�-I h� i—1 ah
Applicant WRYEW JONK, Cemrl ly fo .1NL.
Owner, lrse /I
Address ��O Telephone #
APPLICATION #
HEARING DATE l3 U
FILING DATE
FEE AMOUNT O
Landowner Address
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Location and description of property l' !i�}h1 PEA(
#3�pL,
Sao Kos
Type of application check one ( 4) 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 MK' —1-7z , �{'(?,QQ y
Reason for appeal bon! W_ 0Z IAl oz, -
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
Month and Date
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City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
PLANNER
658-7955
July 30, 1990
Overhead Door Company, Inc.
P.O. Box 844
Williston, Vermont 05495
Re: Zoning appeal
Dear Slr�,qp :
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 on Monday, August 13, 1990 at 7:00 P.M. to
consider your zoning application.
Please plan to attend this hearing.
Very truly,
,X-?
Richard Ward,
Zoning Administrative Officer
Encls
RW/mcp
THE
TRl10C M .K
SINCE G% or jrral 1921
Overhead Door Company of Burlington, Inc.
Mr. Richard Ward
Zoning Administrator
City of South Burlington
575 Dorset Street
South Burlington, Vt. 05403
Post Office Box 844
199 Williston Road
Williston, Vermont 05495
Telephone: (802) 864-9895
July 5, 1990
RE: 24 San Remo Drive, South Burlington
Dear Dick:
Although we have roved the bulk of our operations to Williston,
24 San Remo Drive remains an important part of our wholesale/
distribution operations. We have neither abandoned nor changed
the use from that of wholesale distribution. Consistent with
that use we have leased our building to University Wholesalers.
Their intended use will also be that of wholesale/distribution.
Please contact me as soon as possible if South Burlington intends
to prevent our tenant from occupying 24 San Remo Drive and con-
ducting their wholesale distribution business.
Very sincerely,
Jerry 7iln'son�, V.P.
a distributor of Overhead Door Corporation products
City of South Burlington
575 DORSET STREET
SOUTH BURLINGTON, VERMONT 05403
PLANNER
658-7955
July 9, 1990
Overheard Door Company
P.O. Box 844
Williston, Vermont 05495
Dear Jerry:
ZONING ADMINISTRATOR
658-7958
The use of your building at 24 San Remo Drive is non conforming
under the Center District provision of the City Zoning Ordinance.
Under Article XX Non -conforming uses and Non -complying use of a
building, structure or land shall be changed to another non-
conforming use".
Since your company relocated to Williston, the City has allowed
Overhead Door to continue to use the property. Therefore, it. is
not possible to allow University Wholesalers to occupy the
property without approval by the Zoning Board of Adjustment. Any
other use proposed must comply with those provisions setforth
within the Central District uses.
If you have any questions please don't hesitate to call me. The
option of appeal from a decision of the Administrator Officer is
something you may wish to explore.
Very truly,
t �
Richard Ward,
Zoning Administrative Officer
RW/mcp
OVERHEAD DOOR COMPANY, INC.
Attorney Richard Spokes agent
24 San Remo Drive
Area zoned Central District 3.
Uses along San Remo Drive are non -conforming.
Section 19.00 Non -conforming uses and non -complying structures.
Sub section 19.004 "No non -conforming use of a building, struc-
ture or land shall be changed to another non -conforming use."
See letter from Attorney Dick Spokes and my memo.
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