                                   STATE OF VERMONT

                              ENVIRONMENTAL COURT

In re: Spurr Self Storage Unit            }             Docket No. 224-10-07 Vtec
        Construction Application          }
        (Appeal of Spurr)                 }
                                          }

              Decision and Order on Cross-Motions for Summary Judgment

        Appellant-Applicant Jeff Spurr (Appellant) appealed from a decision of the Zoning

Board of Adjustment (ZBA) of the Town of Weathersfield denying his appeal of the Zoning

Administrator’s denial of his application as a permitted use and denying his application to

the ZBA for consideration of a proposed self-storage use as falling within the “other uses”

category of conditional use in the Highway Commercial zoning district. Appellant is

represented by Thomas M. Rounds, Esq.; and the Town is represented by J. Christopher

Callahan, Esq. Question 3 of the Statement of Questions was withdrawn on January 22,

2008.

        The parties have moved for summary judgment on Question 2 of the Statement of

Questions, relating to whether this Court1 should determine that the proposed self-storage

use falls within the “other uses” conditional use category in the Highway Commercial

zoning district.

        Appellant has also moved for summary judgment on Question 1 of the Statement of

Questions, while the Town has requested that Question 1 be remanded to the ZBA if the

Court should determine that self-storage facilities are allowed to be considered as a



1 Question 2 is posed in terms of whether the ZBA improperly defined “highway
commercial;” however, the question of whether the proposal should be considered within
the “other” conditional use category is for this Court to determine anew, as this is a de
novo proceeding.

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conditional use in this zoning district. To the extent that Question 1 involves the merits of

Appellant’s application for conditional use approval, the Town’s request for conditional

remand is denied as moot or unnecessary, and Appellant’s motion for summary judgment

on that question must also be denied. The merits of Appellant’s application for conditional

use approval were not before the ZBA, and therefore are not within the scope of this appeal

and are not before the Court in this de novo proceeding. See In re Torres, 154 Vt. 233, 235

(1990) (Court’s de novo authority is as broad as the municipal panel’s but not broader).

       All that is before the Court in the present appeal is whether the use category of “self-

storage” falls within a permitted use category for the Highway Commercial zoning district

or whether it is of a similar type and character as the uses listed as permitted or conditional

uses in the Highway Commercial zoning district, and, if so, whether it “meets the

purposes” of that district. The following facts are undisputed unless otherwise noted.



       Appellant owns a 1.1-acre parcel of property with 250 feet of frontage, at 4159 Route

106, in a Highway Commercial zoning district. The Zoning Districts map has not been

provided to the Court in connection with the present motions, and therefore the Court

cannot determine whether there is more than one area within the Town that is classified as

a Highway Commercial zoning district. The ZBA decision on appeal in this matter also

refers to two pages of the Weathersfield Town Plan: pages 54 and 59, regarding the “Route

106 Downers Corners” area. However, the parties also have not provided the Town Plan in

connection with the present motions.

       Appellant submitted a zoning permit application to change the use of the property

from a single-family residential use to a self-storage business use, involving the removal of

the existing single-family house on the property. As originally filed, the application

requested approval of a single 175’ x 30’ self-storage building, occupying 5,250 square feet

in area. At some point in the proceedings, the application was amended to add a second

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building, 175’ x 40’ in area, giving the buildings a total of 12,250 square feet in area. The

buildings are proposed to be surrounded by a gravel drive.

       The Zoning Administrator denied the application on the basis that the use category

of “self-storage” is not a listed permitted use in the Highway Commercial zoning district.

Zoning Bylaws, § 4.3.2(f). Appellant appealed the decision to the ZBA, apparently

requesting it to determine that the proposed “self-storage” use could be considered within

the “other uses” conditional use category for the district.

       Section 4.3.1 of the Zoning Bylaws lays out the description and purpose of each

zoning district. The entry for the Highway Commercial zoning district states:

       Areas adjacent to highways or highway intersections with sufficient traffic to
       support the efficient provision of goods and services to the public. Serves
       local residents and transients, provides some local employment and helps to
       broaden the Town tax base. Access drives and curb cuts must be carefully
       planned to avoid traffic nuisances and dangers.
The entry for each zoning district within § 4.3.2 contains the listed permitted uses,

conditional uses, and uses specifically not allowed in that particular zoning district. For

each zoning district, the final entry in the list of conditional uses is the following:

       [o]ther uses (as determined after public hearing, by the Board of Adjustment,
       to be of a similar type and character as those listed above and meeting the
       purposes of this District).
       Of the listed use categories in the Highway Commercial zoning district potentially

relevant to the parties’ arguments, the “Highway Commercial” and “Light Industrial” use

categories are permitted uses in the district, while the use categories that are listed as not

permitted in the district include “Industrial” and “Nonhighway Commercial.” Zoning

Bylaws, § 4.3.2(f). Of the conditional use categories allowed in the district, at least three:

“Contractor’s storage (materials, machinery, heavy equip[ment])”, “mortuary” (specifically

included in the “Semi-Public” use category), and “wireless communications facilities,” do

not involve active or retail commercial activity or depend on highway traffic for customers.

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       The use category of “Highway-Commercial” is defined in Section 8 of the Zoning

Bylaws as:

       [t]he use of a structure and/or lot for the following purposes: motel or large
       hotel; shopping plaza; wholesale2 or retail sales; drive-in theater; restaurant;
       drive-in food service; drive-in bank; lumber yard;3 sales and service of
       automobiles, mobile homes, large boats or recreational vehicles; dry cleaner;
       bar; nightclub; or any other purpose deemed by the Zoning Board of
       Adjustment to be similar in nature to those listed.

The use category of “Non-highway Commercial” is defined in Section 8 as: “[t]he use of a

structure and/or lot for the following purposes: wholesaler, fuel oil depot, bottled gas

depot, coal depot, lumber yard, and other similar purposes as determined by the Zoning

Board of Adjustment.” The use category of “Industry” is defined in Section 8 as: “[t]he use

of a building or land for the manufacture, production, processing, assembly or storage of

goods or commodities. Includes research, testing, and large offices; and others deemed

similar in nature by the Zoning Board of Adjustment.” The “Light Industry” use category

is defined as the “same as” the “Industry” use category, but is restricted, among other

criteria, to buildings having less than ten thousand square feet.



       Appellant argues that the ZBA should have been estopped by a 2004 ZBA vote on a

request for interpretation of the zoning bylaws relating to an unrelated office/self-storage

project also in a Highway Commercial zoning district (“the Wyman request”). While it is

important for municipal boards to issue rational and consistent decisions, and to give

rational reasons for differences in decisions between apparently similar cases, the 2004 vote

on the Wyman request does not give rise to an estoppel in the present case.

       The present case does not present a similar situation to that in In re Lyon, 2005 VT


2 “Wholesaler” is also listed under “Non-highway Commercial.”
3 “Lumber yard” is also listed under “Non-highway Commercial.”

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63, 178 Vt. 232, relied on by Appellant. In the Lyon case, the Vermont Supreme Court ruled

that the ANR’s issuance of a permit to an applicant, which action was not appealed by any

interested party, estopped the ANR from later revoking that applicant’s permit, even

though the permit had been issued without requiring the property’s compliance with

certain certification requirements. In re Lyon cannot be read to extend such estoppel to

some undefined later applicant who wishes to receive the same treatment.

       In an analogous situation, each applicant for a variance who appeals a denial to

Environmental Court in a de novo appeal must prove that the specific proposal meets all

five criteria for a variance, regardless of whether similar neighboring proposals have

obtained variances at the municipal level that may or may not have actually been justified

under the variance criteria.      The Court is obligated to apply the statute and the

municipality’s zoning ordinance to the specific facts of each application that comes before

the Court. 10 V.S.A. §8504(h); V.R.E.C.P. 5(g).

       First and most importantly, the August 25, 2004 ZBA vote on the Wyman request

seems to have been an impermissible advisory interpretation, rather than an action on a

pending permit application or on an appeal from a Zoning Administrator’s act or decision.

See In re Remy Subdivision Alteration, Docket No. 21-1-08 Vtec, slip op. at 7 (Vt. Envtl. Ct.

July 31, 2008) (Durkin, J.) (refusing to consider on appeal a request for interpretation over

which the municipal panel had lacked jurisdiction); and see In re Appeal of 232511 Invs.,

Ltd., 2006 VT 27, ¶¶ 18–19, 179 Vt. 409, 417 (prohibiting rendering a decision on a

hypothetical application). As far as it can be determined from the minutes of the August

25, 2004 ZBA meeting, no application had been filed, either to the Zoning Administrator for

the proposed project, or to the ZBA for a ruling that self-storage units qualify as an “other”

conditional use category or to the ZBA to appeal an adverse decision of the Zoning

Administrator.

       Moreover, at the very least, material facts are in dispute as to all but one provision of

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the 2002 Zoning Bylaws in effect at the time of the Wyman request; the only undisputed

provision is that the definition of highway-commercial was the same as in the 2006 Zoning

Bylaws. Nor have the parties established whether the Town Plan applicable to this area or

these use categories did or did not change, between the 2004 vote and the decision on

appeal, nor whether the Wyman request pertained to a location in the vicinity of

Appellant’s property.

       Further, the Wyman project seems to have been for a self-storage facility of

undefined size on the same lot as an otherwise-permitted office use. Such a proposal may

pose different considerations than a free-standing self-storage facility.

       In any event, without regard to the Wyman request, in the present case material

facts are in dispute, or at least have not been provided to the Court, as to the Town Plan’s

provisions for the area in which Appellant’s property is located, and as to the Town Plan’s

discussion, if any, of the purposes of the various zoning districts. Material facts are in

dispute, or at least have not been provided to the Court, as to whether the proposed self-

storage use is of a similar type and character to the permitted use categories of “Highway

Commercial” or “Light Industry,” or of a similar type and character to the conditional use

category of “Contractor’s storage.” Material facts are in dispute, or at least have not been

provided to the Court, as to whether the Town Plan discusses the distinction between the

“Non-highway Commercial” excluded use category and the “Highway Commercial”

permitted use category, or whether it in any way illuminates the distinction between the

apparent bulk storage or truck access characteristics of the uses listed as examples of the

“Non-highway Commercial” use category, as contrasted with the uses listed as examples

in the “Highway Commercial” use category, or how to rationalize the overlap of

wholesalers and lumber yards in both use categories.

       Further, as Appellant’s proposal as initially filed sought approval of only one

building of 5,250 square feet in area, the Court cannot determine whether the Zoning

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Administrator or the ZBA had before it the question of whether the single-building

proposal fell within the “Light Industry” permitted use category, as the “storage of goods,”

and therefore should have been acted on as a permitted use by the Zoning Administrator.



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

the Town’s Motion for Summary Judgment is GRANTED in part and Appellant’s Motion

for Summary Judgment is DENIED in part: that the ZBA was not collaterally estopped by

its 2004 vote on a motion in the matter of the Lyman request. As discussed above, the

Town’s Motion for Remand of the merits of Question 1 is DENIED as MOOT.

       Both parties’ motions for summary judgment are otherwise DENIED, in that

material facts are in dispute, or at least have not been provided to the Court, as to whether

the project falls within the permitted use category of “highway commercial,” whether the

project as originally applied for (under 10,000 square feet) falls within the permitted use

category of “light industry,” and as to whether the proposed self-storage use meets the

purposes of the Highway Commercial zoning district and is of a similar type and character

to any of the listed permitted or conditional uses, and in particular to the use categories of

“highway commercial,” and “contractor’s storage,” sufficiently to be classified as an “other

uses” conditional use in the Highway Commercial zoning district. A telephone conference

has been scheduled (see enclosed notice) to discuss whether an evidentiary hearing is

necessary or whether the parties wish to present any additional undisputed facts or

documents with regard to the remaining issues.

       Done at Berlin, Vermont, this 7th day of August, 2008.




                            ________________________________________________
                                  Merideth Wright
                                  Environmental Judge

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