                         STATE OF VERMONT

                      ENVIRONMENTAL COURT

         Appeal of Foley, et al.    }
                                    }
                                        Docket No. 284-12-02
                                    }
                                        Vtec
                                    }
                                    }

                           Decision and Order

Appellants Karen Foley, Johannes Swarts, Katherine Thibault, Andre
Thibault, John McCann, Donna McCann, Susan Bradford, Richard Peck,
and Donna Williams appealed from a decision of the Zoning Board of
Adjustment of the Village of Bradford granting conditional use approval
to Appellee-Applicant Peter J. Saladino, Jr. Appellants appeared and
represented themselves, with Ms. Foley acting as spokesperson;
Appellee-Applicant appeared and represented himself; and the Town
did not enter an appearance in this matter. An evidentiary hearing was
held in this matter before Merideth Wright, Environmental Judge; after
which Judge Wright took a site visit alone, by agreement of the
parties. The parties presented their arguments orally on the record at
the hearing. Upon consideration of the evidence, the site visit and the
parties= arguments, the Court finds and concludes as follows.

Appellee-Applicant Saladino owns a building and lot in the Bradford
Village Historic District and in the Village Residential zoning district.
The lot is shown on the zoning permit application as having tax map
number 97-283 and as being one acre in size, however, that size
applies to the whole L-shaped lot which extends behind the adjacent
lot to the north, as may be seen on the tax map in evidence as Exhibit
B. The parties agreed at trial that the Saladino parcel is not the parcel
marked with the arrow as A subject@ on that tax map, nor is it the
entire L-shaped adjacent parcel. Rather, it is the rectangular parcel
marked in blue on that map, which amounts to only a portion of the L-
shaped parcel (compare Exhibit 9 confirming the shape and
measurements of the adjoining properties). It has a dimension of
343.1 feet in depth and 78.5 feet in width across the front lot line,
yielding an area of 26,933 square feet, or approximately .62 of an
acre.

Appellants own nearby lots in the Historic District. The Historic District
lots tend to be narrow and deep, with the nineteenth century historic
homes being placed relatively near the street within each lot. The
character of this area is that of an historic village setting,
characterized by pedestrian use of a sidewalk in front of the houses, a
walkway from the front doors of the houses to the sidewalk, and
driveways extending along one side of the houses to parking areas,
garages or carriage houses to the rear of the main houses. In the
immediate area, only the Saladino property has parking along the
driveway along the side of the house.

Directly adjacent to and southerly of the Saladino parcel is the parcel
owned by Appellants Foley and Swarts. The Foley/Swarts house is
located as close as 9 feet to the Saladino property line. While
Appellee-Applicant asserted on his application that as many as seven
or eight cars can be parked between the Saladino building and the
Foley/Swarts property line, he did not provide a sketch or diagram to
show how that number of 10' x 20' parking spaces would fit, without
encroaching on the Foley/Swarts property or the street right-of-way,
and without impeding use of a driveway along the side of the Saladino
building for access to those parking spaces.

Appellee-Applicant has owned his property since 1965. It had two
apartments upstairs, and three separate office uses on the ground
floor: a dentist= s office, an optometrist= s office, and an osteopath= s
office, seeing approximately 50 patients a day among the three
practices. There is no question that the daytime traffic generated by
these office uses during office hours was greater than the traffic that
would be generated by a single residential apartment. The osteopath=
s use of the offices ceased by 1980, reducing the number of patients
per day to 42; the optometrist= s use of the offices ceased by some
time in 1983, reducing the number of patients per day to 30; the
dental practice= s use of the offices ceased at some time in 1985, so
that the office use of the building was discontinued in 1985. No ground
floor use of the building was made until some time in the fall of 2001,
when it was remodeled for apartment use and began to be rented out
as a third apartment in the building.

As of and after the adoption of the Village Zoning Bylaws in 1983, the
property became nonconforming, due to the lack of a sufficient
number of parking spaces for the two apartments and the single
remaining office use. It also would have become nonconforming as to
lot size if it had still had three office uses, but by that time it had been
reduced to a single office use on the first floor. The required parking
for the residential uses under the 1983 regulations was 4 spaces, plus
one space for every employee vehicle in the office and one space for
every 200 square feet of floor area in the office. It was allowed to
continue as a grandfathered nonconforming use under ' 4.4 of the
Zoning Bylaws, and no permit was required. However, after the
nonconforming use of the ground floor had lapsed due to
abandonment under ' 4.4.3, any new use proposed for the ground
floor, or for the building as a whole, had to meet the zoning
regulations.

Thus as of some time in 1986, a year after the abandonment of the
first floor office uses, the use of the building was as a duplex
residence. Only four parking spaces and 10,000 square feet of lot area
were required for this use. As it had sufficient lot area and parking for
this duplex use, it became a conforming structure with a conforming
use.

In September of 2002, Mr. Saladino applied for a zoning permit to
change the ground floor use of the building from A professional office
to two apartments.@ In fact, the professional office use of the building
had long since lapsed, but in any event the application was referred to
the ZBA for its consideration as a conditional use application for a four-
apartment building. It is the ZBA= s grant of approval for a three-unit
building that is on appeal in the present case. Because Mr. Saladino
did not appeal the denial of the fourth unit, only the three-unit
proposal can be considered in this appeal.

A multi-family apartment building requires 10,000 square feet of lot
area for the first two units, considered together, and 8,000 square feet
for each of the successive units. Thus, a three-unit building would
require 18,000 square feet of lot area, and this lot has sufficient lot
size to support a three unit building.

A three-unit multi-family building requires five parking spaces, each
10' x 20' in size. Room exists on the side of the building for those
parking spaces, but the spaces must be laid out to avoid random
parking, to avoid one car blocking another, to avoid any cars
encroaching on the Foley/Swarts property or the street right-of-way,
and to avoid impeding the use of a driveway along the side of the
building for access to those parking spaces, in order to meet the
conditional use criterion that the proposal not adversely affect the
character of the area. Appellee-Applicant is free to propose a fence or
landscaping on his side of the property line, to help control and define
parking and to help shield the Foley/Swarts house from the headlights,
noise and exhaust of his tenants= vehicles, but neither a fence nor
landscaping is required under the old regulations. Any new fence
would be governed by the new regulations; we make no ruling in this
decision about what kind of approval might be required for it, if any.

Under ' 5.8 of the old regulations, a multi-family building does not
require site plan approval. Under ' 6-12(a) of the new regulations it
does. Unless the new regulations were proposed for public hearing
before September 25, 2002, they do not apply to this application.
Therefore this decision cannot address screening of the parking area or
of any trash containers.

The proposed three-unit residential use of the building will not
adversely affect the capacity of existing or planned community
facilities, will not adversely affect traffic on roads or highways in the
vicinity, will not adversely affect utilization of renewable energy
resources, and will not adversely affect any of the provisions of the old
zoning bylaws. With the condition that the five required parking spaces
be laid out and defined to avoid random parking, to avoid one car
blocking another, to avoid any cars encroaching on the Foley/Swarts
property or the street right-of-way, and to avoid impeding the use of a
driveway along the side of the building for access to those parking
spaces, the proposed three-unit residential use of the building will not
adversely affect the character of the area.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that
conditional use approval of a three-unit residential building is
GRANTED to Appellee-Applicant, subject to the condition that the five
required parking spaces be laid out to avoid random parking, to avoid
one car blocking another, to avoid any cars encroaching on the
Foley/Swarts property or the street right-of-way, and to avoid
impeding the use of a driveway along the side of the building for
access to those parking spaces.



Dated at Barre, Vermont, this 11th day of August, 2003.



___________________
Merideth Wright
Environmental Judge
                                      Footnotes
1.
     Under 24 V.S.A. §4443(d), as amended in 2001, an application must be considered
under any newly proposed regulations if the application is filed after the new regulations
have been proposed for public hearing, even if they have not yet been adopted. Mr.
Saladino’s application was filed on September 25, 2002. The new Zoning Bylaws were
adopted on March 4, 2003. However, although Appellants argued that the new
regulations should be applied, they did not present evidence as to when the new Zoning
Bylaws were proposed for public hearing. Accordingly, we will apply the old Zoning
Bylaws to this application. If the new zoning bylaws were in fact noticed for public
hearing prior to September 25, 2002, the application should have been considered under
the new regulations, and Appellants are free to move under V.R.C.P. 59 for a new trial on
this basis.
