                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT


                                                }
In re Appeals of                                }
  Gilles Moreau, d/b/a                          }      Docket Nos.32-3-99 Vtec
        M&M Beverage, Inc. and                  }      and 229-11-99 Vtec
        GVA Corp., d/b/a Discount Beverage      }
                                                }

                Decision and Order on Motions for Summary Judgment

      Appellant Gilles Moreau appealed from a decision of the Development Review
Board (DRB) of the Town of Brattleboro, denying his application for a conditional use
permit. Appellant is represented by Richard D. Perra, Esq.; the Town of Brattleboro is
represented by Robert M. Fisher, Esq. The parties have cross-moved for summary
judgment.
      Appellant applied for a conditional use permit to install a 15,000 gallon underground
fuel tank, three fuel pumps, a 24' by 28' canopy and related signage, on property in the
Suburban Commercial zoning district. The property already contained an existing discount
beverage store and its associated parking and storage shed. The cover letter stated that
the application was submitted under the conditional use category of ARoad Service-
Automobile Repair Garage.@ The Zoning Administrator denied the application on the basis
that the proposed use constituted an AAutomobile Service Station,@ which he determined is
not a permitted or conditional use within the Suburban Commercial zoning district. The
Development Review Board upheld Zoning Administrator=s denial; the appeal of that
decision is Docket No. 32-3-99 Vtec.
      Appellant then sought conditional use approval pursuant to ''2322 and 5200 of the
Zoning Ordinance, which delineate the procedures for obtaining approval for uses not
otherwise provided for in the Ordinance. The DRB denied this application on the basis that
the proposed use is provided for as a conditional use in the Commercial zoning district and
therefore does not qualify for consideration as a Ause not provided for@ under ''2322 and


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5210; the appeal of that decision is Docket No. 229-11-99 Vtec.
       The problem presented by these appeals arises from the fact that the potentially-
applicable use categories defined in '6100 of the Zoning Ordinance overlap with but are
not the same as the terms used in the lists and chart of permitted and conditional uses in
the zoning ordinance.
       The use category AAutomobile Service Station@ is defined as ALand or structures
used for the sale of petroleum products, motor fuel, oil or other fuel for the propulsion of
motor vehicles, which may include facilities for lubricating, washing or servicing motor
vehicles. A service station is not a sales or repair agency for any type of motor vehicle.@
An automobile service station must sell fuel and can also lubricate, wash or service
vehicles, but cannot repair or paint them. The use category AGasoline Station@ is included
in this category and is merely defined by reference as ASee Automobile Service Station.@
       The use category AAutomobile Service Station and Repair Garage@ is defined as
ALand or structures used for the sale of petroleum products, motor fuel, oil or other fuel for
propulsion of motor vehicles, which may include facilities for lubricating, washing or
servicing motor vehicles, and the maintenance, servicing, repairing or painting of vehicles.@
An >automobile service station and repair garage= must sell fuel and can also perform all
the services of a repair garage, including repairing or painting vehicles.
       The use category ARepair Garage@ is defined as AAny building, premises and/or land
in which or upon which a business, service or industry involving the maintenance, servicing,
repair or painting of vehicles is conducted or rendered.@ A repair garage can repair and
paint vehicles, as well as lubricate, wash, maintain and service them, but cannot sell fuel.
The term ARepair Garage@ is not modified in the definition by the word AAutomotive@ or
AAutomobile.@
       The term AAutomotive1 Services@ is not defined in '6100, but it is used in the text of
the ordinance and the chart of uses to cover all three categories: AAutomobile Service


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         From the context of the ordinance, we will treat the words Aautomobile,@
Aautomotive@ and Aauto@ as equivalent in the use category titles, although it would be far
better practice for the ordinance to use the defined terms in the regulation itself.


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Station,@ ARepair Garage,@ and AAutomobile Service Station and Repair Garage.@ It is not a
redundant term, because it allows any of the three uses and can be used in place of listing
all three.
       In the text of the ordinance, of the automotive types of uses only AAutomotive Repair
Garage@ is allowed as a conditional use in the Suburban Commercial zoning district. In the
Commercial District AAutomotive Services@ and AAuto Service Station and Repair Garage@
are allowed as permitted uses. In the Commercial Industrial district none of these
automotive uses is provided for. In the Industrial district only ARepair Garage@ is allowed as
a conditional use.
However, the Chart of Uses found as Appendix A to the Zoning Ordinance shows AAuto
Service Station and Repair Garage@ as a conditional use in the Suburban Commercial
zoning district.
       Appellant=s proposal falls within the categories: AAutomobile Service Station@ and
AAutomobile Service Station and Repair Garage.@ Because fuel will be sold, it does not fall
within the category ARepair Garage.@


Docket No. 229-11-99 Vtec
       Appellant argues that he is entitled to apply for approval under ''2322 and 5200 of
the Zoning Ordinance, which set forth a procedure the requirements for permits for uses
not otherwise provided for (in the Zoning Ordinance). In order to apply under those
sections, the proposed use must not be specified in the ordinance as either a permitted or
a conditional use in any zoning district, and must not be listed as a prohibited use.
       However, the proposed use falls within two defined categories: AAutomobile Service
Station@ and AAutomobile Service Station and Repair Garage.@ It is allowed as a permitted
use in at least the Commercial zoning district. Therefore, ''5200 and 2322 do not apply.
       Accordingly, based on the foregoing, in Docket No. 229-11-99 Vtec the Town=s
Motion for Summary Judgment is GRANTED and Appellant=s Motion for Summary
Judgment is DENIED, concluding this appeal in favor of the Town. Appellant does not
qualify to apply under ''5200 and 2322 of the ordinance, as the proposal is at least a
permitted use in the Commercial District.

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Docket No. 32-3-99 Vtec
       However, the Zoning Ordinance contains the following ambiguity or conflicting
provisions applicable to Appellant=s proposed project.         In '2349, the use category
AAutomobile Repair Garage@ is listed as a conditional use in the Suburban Commercial
zoning district, but neither of the fuel service categories: AAutomobile Service Station@ or
AAutomobile Service Station and Repair Garage@ is listed as either a permitted or a
conditional use. On the other hand, in the Chart of Uses contained in Appendix A of the
Zoning Ordinance, the use category AAuto Service Station and Repair Garage@ is listed as
a conditional use in the Suburban Commercial District. In the Chart of Uses, ARepair
Garage@ does not appear as a conditional use in the Suburban Commercial zoning district
at all; it only appears as an allowed use in the Industrial zoning district.
       This ambiguity must be resolved in favor of the property owner, to allow Appellant to
apply for the proposed project as a conditional use in the Suburban Commercial zoning
district, most importantly because the use category AAuto Service Station and Repair
Garage@ is listed in the Chart of Uses as a conditional use in the Suburban Commercial
district. Further ambiguity is inherent in the apparent distinction made in the Zoning
Ordinance between ARepair Garage@ listed as a conditional use only for the Industrial
district, and AAutomobile Repair Garage@ listed as a conditional use for the Suburban
Commercial district.
       The Supreme Court has consistently held that because zoning ordinances are in
derogation of common law property rights, in construing zoning and other land use
regulations any uncertainty must be decided in favor of the property owner.@ In re Appeal
of Miserocchi, Docket No. 99-166 (Vt. Supreme Ct., January 28, 2000); In re Appeal of
Weeks, 167 Vt. 551, 555-56 (1998).
       Accordingly, based on the foregoing, in Docket No.32-3-99 Vtec, Appellant=s Motion
for Summary Judgment is GRANTED and the Town=s Motion for Summary Judgment is
DENIED.     Appellant is entitled to apply for approval of the proposed project as a
conditional use in the Suburban Commercial district. This matter is concluded in this Court
and Appellant=s application is remanded to the DRB for consideration under the conditional

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use criteria.

       Done at Barre, Vermont, this 27th day of June, 2000.




                           _________________________________________________
                                Merideth Wright
                                Environmental Judge




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