Loading...
HomeMy WebLinkAboutVR-69-0000 - Supplemental - 0099 Swift StreetJuly 10, lgy John T. "inlras 250 Church Atreyt Furl InFton, Varmont 05401 This is to notify you that the South Furlin,ton Zoning Boar& of 1djustment will hold a pullic hearing on Wednesday, July 16, lQ69 at 7:30 P.m. at the TMAM Office Mldinr, 55`" Dorset rtrest, to consider your request for a variance. Please plan to attenj. Very truly, Richard Wur* Zoning Administrator July 22, 1969 Mr. John R. Gingras 255 Church Street Burlington, Vermont 05401 Dear. Mr. Gingras: The South Burlington Board of Selectmen, meeting on July 21, 1969, tabled action on approval of your use variance until July 30, 1969. If you have any questions please feel free to call me at 863-2891. Very truly yours, Richard Ward Zoning Administrator RW/h Hearing Date_//4'�y ,'kdvt. Dat'-,,�, 6 days prior to meo(Ang -:)outl, Purlington Zoning Board of Adjustment th PurlJnlgton, Vermont I il,ereby appeal to the Zoning; Poard of Adjustment for th.e followinj7 T I C that re,rular np-.,nting dates are the first anthir-d of th, neirth at 7:30 p.vi,. at t! "'own Office 7ull( (1J7, I '. , (--, 'I , -, -,- -, . trI>vertisement shall. appear as be'Lovy, and I try.pay, L or Ibe-forp the ad apneas! a fee of '30-001 n is t,) oirsrt costs of►holding said hearin!-,,,. j x 4 n i tu 7,-) SOUTI1 BURLINGTON ZONING NOTIC 0 U k �1E , PUrI:,Ln,-,tf)n Zoning, Board of Adjustment will holil ti- I.ce Pui Do - set; Strpet,, ?-nt / P w *r 111. and date l ti", e t followirig: rini Ar"'I")eal OC axa seeking Acr jr/Tr v Ct vnb ;-r7-- -0i �le Of 9 ction.) f7ot;tli Ttirlington '-',o eaquest is for pe:?,­,,:ission t" k) toning Ordinance. 11 ,ob' y � ylexlE ofA�0 fAR,eEz- PA,ee W �, oil PAUL R. GRAVES ATTORNEY AT LAW 88 ST. PAUL STREET BURLINGTON, VERMONT SOUTH BURLINGTON, VERMONT TO THE BOARD OF SELECTMEN: Charles H. Behney Vincent J. D'Acuti Walter Nardelli Gregory L. Premo Raymond E. Stearns REHEARING OF VARIANCE REQUEST OF JOHN GINGRAS COMES NOW your Petitioner, JOHN GINGRAS, and requests that this Honorable Body reconsider their decision on his zoning variance. On Mr. Gingras' application for his zoning variance, his request was to be permitted a non -conforming use in Business District A, to wit, a body shop. This matter came before the Zoning Board where it was treated as a Business District B use and was passed unanimously. As required by Town Ordinance, the matter was then presented before the Board of Selectmen who chose to treat the body shop as an industrial use and thus requested an opinion of the Town Attorney as to whether or not a variance can be given for an industrial use in the middle of a business district. The Town Attorney, John Ewing, made the ruling that a variance for an industrial use cannot be given in the midst of a business district because of Town Ordinance 13.60. We concur with Attorney Ewing on this point, but wish to point out that he made no ruling as to whether or not a body shop was an industrial use. It is the understanding of your Petitioner that Mr. Ewing would consider the particular point as to whether or not a body shop was an industrial use and would report back to this Body in time for the August 18 meeting. Your Petitioner requests this hearing on this specific point of whether or not a body shop is an industrial use. It is our contention that a body shop is permitted under the uses defined for Business District B and that, therefore, there is no legal impediment on the part of the Selectmen in granting this variance. Under Section 8.10, (2), "automobile and marine sales and service, service stations, ... etc." are permitted in Business District B. The. Vermont Supreme Court has held in the case of City of Rutland vs. Keiffer, 124 VT 357, that a zoning measure will be construed to give words their ordinary meaning and significance. We submit that the ordinary meaning of automobile service and service station include the repair of automobiles for there is no other definition in the. ordinances of service station. We submit that it is clear that the ordinance must rely upon the ordinary usage of these words for their meaning. Reference has been made to an ordinance passed June 16, 1969, to wit, 9.10 (6), "agricultural and construction equipment sales and service establishments and repair shops," and (7), "wholesale business, storage buildings, warehouses, contractors' yards, truckterminalsand repair shops" regulate body shops. It is submitted that the fact that the term repair shops is referred to twice in this ordinance would indicate that they were meant to refer to the language immediately preceding them. 863-4981 PAUL R. GRAVES ATTORNEY AT LAW Thus, ,the ordinance regulates agricultural and construction equipment repair shops and truck repair shops, but as no mention is made here of automobile repair shops, the ordinance was not meant to regulate them. In support of this contention is the fact that the zoning ordinances clearly define motor vehicle repair shop and yet the term was ommitted from the amendment. Thus, if the intent were of this ordinance to regulate a motor vehicle repair shop then clearly the. term motor vehicle repair shop would have been used. The Vermont Supreme Court has ruled in the case of Murphy Motor Sales, Inc. vs. First National Bank of St. Johnsburg, 122 VT 121 that any ambiguity or uncertainty in a zoning ordinance must be decided in favor of the property owner. Thus, if we are faced with an unclear situation as to whether or not the ordinance was intended to regulate a body shop, then accord- ing to the 1966 decision of our State Supreme Court, it must be construed in favor of Mr. Gingras. We would submit, however, that there is no confusion for the term in the new ordinance was not meant to mean repair shops in general. If it were, then it would mean that all repair shops of any nature, such as `✓ eyeglasses, bicycles, radios, appliances, televisions, furniture, etc., could only be located in industrial districts. Clearly, this was not the intention of the ordinance. In support of our contention that it was not the intent of this ordinance to regulate automobile repair shops is the fact that the business districts abound with new car dealers who do extensive body work and have large repair shops and service stations who regularly repair cars. It would be difficult to say that a repair shop is incidental to any of the dealers for certainly they generate a large portion of their income from these operations and would probably find new car sales impossible if they did not provide these services. Again we look at the numerous service stations in these business districts, and it is quite obvious that they do extensive repairs and certainly generate a large portion of their income from this service. Thus, while in both instances it may not be their primary source of income, it certainly could not be said that this is incidental to their business. Incidental would mean that it would be of minor consequences, something that the dealer or service station operator could pass up suffering only a minimal amount of loss. I think it is clear to all of us that this is certainly not the situation and that certainly new car dealers and service stations would not say their repair business was something that they could pass up with little or no financial loss. It would also appear to be unconstitutional for the Town to permit a new car dealer to operate a repair shop in Business District B but to deny a person only performing repairs of auto- mobiles. the right to do so in the same district. Likewise, it would seem unconstitutional to permit a gasoline station to perform automobile repairs in Business District B but to deny someone else the right to make the exact.same repairs in the same district. All citizens have the right under the United States Constitution to be given equal protection under the laws of every jurisdiction. If the jurisdiction of South Burlington permits the new car dealer to operate an automobile repair shop and denies Mr. Gingras the right to do the same thing in the same district, this we submit would violate the United States Constitution. There are numerous cases before the United States Supreme Court on just this point and all holding that it is the denial of equal protection under the laws. We, therefore, 86 ST. PAUL STREET BURLINGTON. VERMONT 863.4981 submit that your Petitioner has established that a body shop is permitted under the ordinances in Business District B and that it should not be classified as an industrial use. Clearly, the zoning ordinances are in degradation of the common law, and thus any restriction of a land use must be strictly construed (see City of Rutland vs. Keiffer, 124 VT 357, supra). It is therefore submitted that repair shops listed under 9.10 must be strictly construed to refer only to truck repair shops and agricultural and construction equipment repair shops. Continuing this logic, we submit that there is no ordinance preventing the Selectmen from granting a variance to permit a business district B use within business district A. As the Zoning Board has unanimously approved Mr. Gingras' application and as there have been no complaints or opposition to his variance, and in fact a petition by his neighbors has been submitted here this evening indicating that they have no objections to this variance, it is respectfully requested that the Selectmen concur with the Zoning Board and approve Mr. Gingras' application. Respectfully submitted, John Gingras By Paul R. Graves, Attorney .at Law PAUL R. GRAVES ATTORNEY AT LAW 86 ST. PAUL STREET BURLINGTON. VERMONT 863-4981 LEGAL PETITION JOHN GINGRAS ZONING APPEAL We, the undersigned, fully aware that John Gingras who presently operates a body shop at 224h St. Paul Street, Burlington, Vermont, has purchased the property of one Victor A. Menard at 99 Swift Street. We also understand that the garage on the premises is in Business District A and that Mr. Gingras has requested a zoning variance for the purpose of operating a body shop for the repair of the exterior of auto- mobiles in this garage. We, the undersigned, being fully cognizant of the above- mentioned facts, have no objection whatever to the granting of this variance to John Gingras. v' 't 4 d ENIAWININNIVA F-MIR • i PAUL R. GRAVES ATTORNEY AT LAW 86 ST. PAUL STREET BURLINGTON. VERMONT i 863.4981 John R . Gingras 255 Church L�'treet Burlington, Vermont Dear Mr. GinFras: This is to notify you of "electmen approved which will allow you shop on :-wift Street the South Burlington RW/ j August 19, 1969 0 51+01 that the South Rurlinrton Hoard your request for a use variance, to operate an auto body repair with stipulations set forth I}y Zoning 13oar d of Adjustment. Very truly, Richard Ward Code Officer Law Offices Of JOHN T. EWING ATTORNEY AT LAW 86 ST. PAUL STREET JOHN T. EWING BURLINGTON.VERMONT RICHARD A. SPOKES AREA COOE 602 August 14, 1969 604-4556 Mr. Henry N. LeClair Town Manager South Burlington, Vermont 05401 Dear Henry: On August 4, I wrote to Richard Ward concerning the Gingras appeal for a variance. I was told that it was the intention of the amendment to Section 9.10 of the Zoning Ordinance (June 16, 1969) to place body and automobile repair shops in the industrial district and I gave my opinion that under the variance provision of the Zoning Ordinance (Section 13.60A (2) ) it was not possible to allow an industrial district use in a business district. Paul Graves, attorney for Mr. Gingras, has dis- cussed the matter with me, and I have given it further consideration. I now feel that the June 16 amendment is confusing in its terminology, and that it leaves some doubt as to whether general automotive and body repair shops were to be included as permitted uses. The language could be construed to include only "agricultural and construction equipment... repair shops" and "truck terminals and (truck) repair shops". Because of the ambiguity, I cannot say that the proposed Gingras use would necessarily be an industrial district use, and therefore a use variance would be possible. Of course, the Board of Selectmen may still deny the applica- tion as a matter of discretion. Very truly yours, John T. Ewing JTE/p