                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

             Appeal of Pilgrim Partnership, LLC }      Docket No. 49-3-03 Vtec
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                              Decision and Order on Threshold Issue

Appellant Pilgrim Partnership, LLC, appealed from a decision of the Development Review Board
(DRB) of the Town of Moretown denying conditional use approval for its proposed project.
Appellant is represented by David R. Bookchin, Esq.; the Town of Moretown is represented by
Paul S. Gillies, Esq., and is not taking an active role in these proceedings; Interested Person
Joseph Bahr is represented by Charles F. Storrow, Esq. An evidentiary hearing was held in this
matter before Merideth Wright, Environmental Judge, on the preliminary issue of whether the
proposed project falls into one or more allowable use categories under the Moretown Zoning
Regulations. If it does, the hearing on the merits of the application is now scheduled for Friday,
July 18, 2003, with the site visit and hearing of the testimony of any witnesses unavailable for the
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18 to be held on Monday, July 14, 2003 beginning at 9 a.m. at the Washington Probate Court in
Montpelier. If the proposed project does not fall into one of the enumerated allowable use
categories, then the hearing on July 14, 2003, will also address any evidence necessary to
determine whether the proposed project may be considered under ' 2.3(E) allowing uses not
specifically listed to be considered for approval by the DRB, and hence this Court. The Court held
a brief evidentiary hearing on May 23, 2003 and the parties submitted written memoranda on this
preliminary issue. Upon consideration of the evidence and the written memoranda, the Court
finds and concludes as follows on the preliminary issue only.

Appellant=s property is a 7.25-acre parcel of land with frontage on Route 2, Route 100, and Cobb
Hill Road, in the Commercial zoning district of the Town of Moretown. Appellant proposes to
create three areas under condominium ownership, and to develop condominium areas A and B,
consisting of approximately four acres, to be used by S.T. Paving, Inc., d/b/a Vermont Tennis
Courts.

Appellant proposes to construct a 7,200-square-foot building (60' x 120') to be used for a
business office, indoor storage of inventory and materials used in the business, and indoor
maintenance of registered and unregistered vehicles and construction equipment used in the
business. In addition, Appellant proposes outdoor areas for employee parking, equipment
storage, and materials storage.

The paving season runs from early May through mid-November; the tennis court construction
season runs from mid-April (for the earliest jobs generally out-of-state in warmer areas) to
October, but with the work force reduced by half in mid-July. In season, twenty-one people are on
the payroll, but only three work on site. The remainder either go directly to the job site or come in
to the office for 15 to 30 minutes at the beginning and the end of the work day to leave their
personal vehicles and pick up the vehicles, equipment and materials needed for the job. The
vehicles and motorized equipment currently owned and used by S.T. Paving are the following:
three 1999 Volvo tri-axle dump trucks; one 2000 Freight-line tractor; one lowboy trailer; one 25-
ton flatbed trailer; two pavers; four rollers; two graders; one small backhoe/loader; three pickup
trucks; two rack trucks; and one shoulder widener.
To be considered for approval, each of the proposed uses for the property and the building must
fall within one of the use categories allowed in the district (in Table 2.2 of ' 2.4), or else must
undergo approval under ' 2.3(E). That is, as a A mixed-use@ under ' 3.9, each of the proposed
uses must otherwise be allowed as a permitted or a conditional use in the district. For any of the
uses that do not fall within a listed use category, it will be necessary to determine at the hearing
now provisionally scheduled for July 14, 2003, whether they can be considered for approval
under ' 2.3(E). Therefore, the initial task is to determine the appropriate use category for each of
the proposed uses. Not all the use categories in the regulations are defined in the definitions
section.

The business office proposed use falls within the A Professional/Business Office@ conditional
use category. (Table 2.2(3)(21)).

The indoor storage of inventory, materials and tools used in the business fall within the A
Enclosed Storage and Warehousing@ conditional use category. (Table 2.2(3)(10)). Nothing in
the definitions precludes the warehousing or storage of materials and inventory used in a
business that involves installation on a customer= s site as opposed to the shipping out of a
finished product. For example, a lumberyard or a landscape business or a kitchen cabinet
business may have a warehouse in which materials and tools used in the business are stored.

The outdoor storage of materials used in the business, including aggregate, stone, topsoil, and
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inert pieces of hardened asphalt suitable for recycling would be subject to approval within the
AAccessory Use@ conditional use category (Table 2.2(3)(2)), if it can be shown to be accessory
to one or more of the uses on the property capable of being approved as a conditional use either
by being so listed in Table 2.2(3) or by qualifying for consideration under ' 2.3(E).

In Article VII the Zoning Regulations define the term A motor vehicles@ to include A all motor
vehicles capable of being registered for legal operation o[n] Vermont highways.@ The term
specifically excludes all-terrain vehicles, boats (and their trailers), snow-machines, and A
construction and excavation equipment.@ Reading the definition as a whole, we conclude that
vehicles used in the construction and excavation trades, but capable of being registered to travel
on Vermont highways (such as dump trucks) fall within the definition of A motor vehicles,@ while
motorized equipment not capable of being registered (such as backhoes), which must be
transported from job site to job site on a trailer, does not fall within the term A motor vehicles.@

The Zoning Regulations define the term A gasoline station@ to include A any premise[s] where . .
. vehicular maintenance activities are conducted.@ The definition does not distinguish between
premises at which such activities are conducted for public customers, and premises at which
such activities are conducted as an accessory use to a business, nor does it distinguish between
passenger automobiles and other types of motor vehicles. > Gasoline Station= is a use category
allowed as a conditional use in the Commercial zoning district.

The Zoning Regulations define the term A automobile sales and service@ as A land or structures
used for either or both the sale of new or used vehicles and the maintenance, servicing and
repairing of vehicles.@ The Zoning Regulations do not contain a separate use category explicitly
addressing the sales or service of other types of motor vehicles, such as trucks, and Appellant
argues that this category refers only to the sales and service of passenger automobiles. Because
the term A motor vehicles@ is defined and is used elsewhere in the Zoning Regulations, we must
conclude that the drafters of the ordinance used the word > automobile,= in this section to
distinguish it from, for example, the sales and service of other categories of motor vehicles, such
as dump trucks or motorcycles, and also to distinguish it from the sales and service of other
motorized equipment, such as farm machinery, all-terrain vehicles, or boats. > Automobile Sales
and Service= is a use category allowed as a conditional use in the Commercial zoning district.
Based on these definitions, both the indoor maintenance of registered vehicles (and those
capable of being registered), used in the business, and the indoor maintenance of construction
equipment used in the business, would be use categories that would have to qualify for
consideration under ' 2.3(E), before they could be considered under the criteria for conditional
use approval. In this respect, for the hearing on July 14, 2003, the parties may wish to consider
evidence related to the use category covering municipal garages, fire stations and equipment
sheds (Table 2.2(3)(22)), as well as the motor vehicle related categories discussed above.

The outdoor parking of registered vehicles (and those capable of being registered), used in the
business, including employees= passenger vehicles, would be subject to approval within the A
Accessory Use@ conditional use category (Table 2.2(3)(2)), if it can be shown to be accessory to
one or more of the uses on the property capable of being approved as a conditional use either by
being so listed in Table 2.2(3) or by qualifying for consideration under ' 2.3(E). And see the >
storage of motor vehicles= requirements of ' 4.14 and the > parking and loading= requirements of
' 4.9.

Similarly, outdoor parking of construction equipment used in the business would be subject to
approval within the AAccessory Use@ conditional use category (Table 2.2(3)(2)), if it can be
shown to be accessory to one or more of the uses on the property capable of being approved as
a conditional use either by being so listed in Table 2.2(3) or by qualifying for consideration under '
2.3(E). And see the > storage of motor vehicles= requirements of ' 4.14 and the > parking and
loading= requirements of ' 4.9.

The remaining function described for the property was the outdoor spreading of soft asphalt
remaining in a truck at the end of the work day, onto an area of the ground approximately ten feet
square, to allow it to harden so that it may be broken up into pieces of hardened asphalt suitable
for transportation to an asphalt plant for recycling. This use of the property does not fall within any
of the allowed permitted or conditional use categories, and would have to qualify under ' 2.3(E) to
be considered for the property. In presenting evidence on this use category at the hearing on July
14, 2003, the parties should consider the performance standards of ' 4.10 (and in particular '
4.10(B)(4)), as well as the criteria of ' 2.3(E).

Accordingly, as discussed above, certain elements of the project must first qualify under ' 2.3(E)
before they can be considered for approval under the conditional use criteria, while other
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elements of the project fall within the listed conditional uses for the district. As already scheduled
by agreement at the telephone conference on May 30, 2003, we will take evidence on July 14,
2003, on all of the evidence necessary for the Court to determine whether those elements of the
project qualify under ' 2.3(E) for consideration as conditional uses, together with the evidence of
any witness unavailable for the hearing on July 18, 2003. The hearing on July 14, 2003 is
scheduled to begin at 9 a.m. at the Washington Probate Court on Elm Street (behind the Superior
Courthouse) and to continue as needed until another hearing now scheduled for 2:30 p.m.
(Please note that that other hearing may be cancelled, in which case the entire day would be
available for this case and its site visit. Please telephone the Court staff on or about July 10, 2003
for this information). We will also take the site visit on July 14, 2003, either at the close of the
hearing or after the work day, depending upon that other hearing. None of the evidence taken on
July 14, 2003, need be repeated at the hearing on July 18, 2003, for it to be considered on the
merits of the application.



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Dated at Barre, Vermont, this 7 day of July, 2003.
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Merideth Wright
Environmental Judge




                                             Footnotes

1.
     That is, no longer off-gassing hot asphalt fumes.

2.
   We apologize for any confusion created by the fact that a hearing notice was sent on June 17,
2003, for the July 18, 2003 hearing, but not for the July 14, 2003 hearing.
