                               STATE OF VERMONT

                            ENVIRONMENTAL COURT

                                              }
In re: Chandler Home Repair Application       }     Docket No. 129-6-08 Vtec
        (Appeal of Chandler)                  }
                                              }

            Decision and Order on Cross-Motions for Summary Judgment

      Appellant Charles Chandler appealed from a decision of the Development

Review Board (DRB) of the Town of Newfane, denying his most recent application to

restore, replace, and/or renovate an existing residential structure. Appellant has

appeared and represents himself; the Town is represented by Samuel H. Angell, Esq.

      The parties have moved for summary judgment.           The following facts are

undisputed unless otherwise noted.



      Appellant owns a 2.11-acre property located at 1075 Vermont Route 30 in Zoning

District B. An existing single-family dwelling (mobile home), shed, and garage are

located on the property.

      The present appeal and Docket No. 128-6-08 Vtec now pending have come before

the Court in the context of prior litigation involving the same parties and the same

property. In Docket No. 25-2-06 Vtec Appellant had appealed two decisions of the

DRB, one denying a permit to construct a shed, and one denying a permit to repair and

build additions to the existing mobile home in its present location.1        After an

evidentiary hearing, a Decision and Order on the merits was issued in Docket No. 25-2-


1
   In another appeal, Docket No. 155-8-05 Vtec, Appellant had appealed a DRB decision
denying his application to move the mobile home to a different location on the
property; that appeal was dismissed as moot when Appellant withdrew the application
to move the structure.
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06 Vtec on December 6, 2006 (the 2006 Decision), determining that Appellant’s property

lacks sufficient acreage to support both a residential use and a commercial use, as each

use requires at least two acres under the Zoning Bylaws. See 2006 Decision at 12–13

(citing § 52202 (establishing density limitations for residential uses in Zoning District B);

§ 4412 (establishing that each “commercial unit” requires the same acreage as a

residential unit)).   This Court’s decision was affirmed in In re Chandler Shed &

Dwelling Applications, No. 2007-003 (Vt. Oct. 19, 2007) (unpublished mem. by three

justice panel), available at http://www.vermontjudiciary.org/upeo/eo07-003.pdf.

       As Appellant was not living on the property in question at that time, the 2006

Decision explained that the commercial use could not then qualify as a home

occupation or home industry. Because the commercial activities being conducted on the

property could not qualify as a home industry/occupation, and the property could not

support both a residential and a commercial use, Appellant’s applications were denied.

2006 Decision at 15–16.

       However, the 2006 Decision explicitly left open the possibility for Appellant to

move to the property and then to apply to conduct both residential and commercial

activities on the property as a home occupation or home industry under § 4110 of the

Bylaws. The 2006 Decision explained the three available alternatives as: “to make the

property solely commercial, solely residential, or residential with a home industry or

home occupation.” 2006 Decision at 14; see also 24 V.S.A. § 4412(4).

       Appellant took up residence at the property and, following the Supreme Court’s

affirmance of the 2006 Decision, Appellant applied again for both permits: one to repair

the home and finish the shed, and the other to conduct his business from the property


2
  We note a difference in citation form, in that the Supreme Court cited the bylaw
sections as 5200.20 and 4400.12, while the Environmental Court has followed the
Zoning Bylaws’ and DRB’s citation form usage to merge the subsections as, e.g., 5220
and 4412. See, e.g., Zoning Bylaws, reference to “Section 4320” in § 4330.
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as a home occupation or home industry. The denial of these applications, due to a

dispute over the DRB’s taking a site visit, were appealed to this Court in Docket No. 79-

4-07 Vtec. That appeal was concluded by being remanded to the DRB after Appellant

agreed to allow the DRB to conduct a site visit on the property.

      On April 18, 2008, Appellant refiled both an application for “restoration,

replacement, and/or renovation” of the existing single family dwelling and to complete

the shed (the home repair application), and to conduct his business as a home

occupation or home industry. The DRB denied both applications, and both denials

were appealed to this Court in Docket Nos. 129-6-08 Vtec (home repair application) and

128-6-08 Vtec (home industry/occupation application). The present motions were filed

only in Docket No. 129-6-08 Vtec, regarding the home repair application; the home

industry/occupation application remains set for trial on February 20, 2009.

      The DRB’s June 2008 written decision on the home repair application stated that,

“[b]ased on the existing Act 250 Land Use Permit 2W1187, it is determined that the said

property is designated as commercial.”       However, neither the property’s Act 250

permit, nor any other permit regarding zoning or land use, has the effect of

permanently converting a property from one use to another, either under the Newfane

Zoning Bylaws or under the state statute, 24 V.S.A. Chapter 117. Although once Act 250

jurisdiction has attached to a property in commercial use, that property may remain

subject to Act 250 even if its commercial use ceases, such Act 250 jurisdiction does not

render the property permanently “commercial” in use. Rather, as stated in the 2006

Decision, “even if an originally residential property is changed to and receives a zoning

permit for a commercial use, the owner or a subsequent owner is free to make a further

application to convert it back to a primarily residential use.” 2006 Decision at 15. The

fact that a property owner has applied for or received a permit to conduct a particular

activity on a property does not rezone that property, nor does it preclude a landowner

from applying for a different use of the property in the future, as long as any such
                                            3
proposal complies with the state statutes and municipal ordinances in effect at that

time.

        Appellant has chosen to pursue one of the three options discussed in the 2006

Decision: to move onto the property and to apply to operate the business from the

property as “residential with a home industry or occupation.” The Town does not

dispute that he has taken up residence at the property.

        In the present appeal, all that is before the Court is Appellant’s application to

repair the residence and complete the shed.          The Town does not argue that the

proposed work fails to comply with any aspect of the Zoning Bylaws for a residential

property, other than to reassert that the property does not meet the density

requirements for independent residential and commercial uses, an issue that was raised

and disposed of in the 2006 Decision and in the Vermont Supreme Court’s October 19,

2007 decision. Contrary to the DRB’s references to “designat[ing]” the property as

residential, “commercial,” or “home industry/occupation,” the Zoning Bylaws do not

contain any such “designation” or rezoning procedure. Rather, each applicant for a use

is entitled to have it ruled on according to whether it meets the requirements of the

Zoning Bylaws. The use category of home industry/occupation is treated as accessory

to the residential use of a property under § 4231, and also must meet the pollution

control requirements of Section VIII, while any commercial use of a property is treated

as a separate use under § 4400, and also requires site plan approval under Section VI.

        Because Appellant has now opted to meet the requirements of the Zoning

Bylaws for the property as a residential property with a home industry or home

occupation, he is entitled to have the application to repair the residence and complete

the shed granted as a property in residential use.

        Questions regarding whether any proposed level of business use of the property

can qualify for approval as a home industry or home occupation are not before the

Court in this case, but will be addressed in Docket No. 128-6-08 Vtec. Any other issues
                                            4
regarding past or current levels of business or commercial use of the property are

similarly not before the Court in the present appeal.



      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellant’s Motion for Summary Judgment is GRANTED, and the Town’s Motion

for Summary Judgment is DENIED; Appellant’s application to repair the residence

and/or to complete the shed for residential use is hereby GRANTED, concluding the

above-captioned appeal. Any issues as to the proposed business use of the property,

including any business use of the house, shed or garage, remain to be litigated in

Docket No. 128-6-08 Vtec.



      Done at Berlin, Vermont, this 2nd day of January, 2009.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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