                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

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In re Appeal of                                   }      Docket No. 253-12-99 Vtec
       Michael and Lisa Bowdish                   }
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             Decision and Order on Motions for Partial Summary Judgment

       Appellants Michael and Lisa Bowdish appealed from a decision of the Zoning Board
of Adjustment (ZBA) of the Town of Salisbury denying their application for a conditional
use permit. Appellants are represented by David R. Cowles, Esq.; Appellees John E.
Fitzgerald and Suzanne M. Fitzgerald are represented by Karl W. Neuse, Esq. The parties
have each moved for partial summary judgment on Questions 1 and 2 of the Statement of
Questions.
       Appellants own an existing one-acre parcel of land in the Low-Density Residential
(LDR) zoning district, in which the minimum lot area is two acres for residential use and five
acres for commercial use. The lot was subdivided in 1955, prior to the adoption of zoning
in Salisbury. The lot meets the minimum lot depth but its width1 does not meet the lot
frontage minimum of 100 feet for residential uses or 150 feet for non-residential uses, and
does not allow the garage to meet the 75-foot side setback for commercial uses, although
it may meet the 25-foot side setback for residential uses if the property width is 80 feet
wide as shown on Appellants= 1998 permit application. Prior to purchasing the property in
1998, Appellants obtained zoning permits for a replacement single-family dwelling and a
30' x 40' garage.
       Appellant Michael Bowdish is a self-employed mechanic who repairs agricultural
equipment.    He estimates that over three-quarters of his business is conducted on
customers= farms, but in the remaining quarter of his jobs, if the customer does not have a
       1
        Whether 66 feet as shown on the tax map or 80 feet as shown on Appellants=
1998 permit application.




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suitable covered or enclosed building in which he can work, depending on the weather and
the type of job, he will bring the customer=s equipment to his property and repair it in or
near the garage.
       In 1999 Appellants submitted the present application for a conditional use permit to
operate the agricultural vehicle repair business. The application was denied because the
property does not meet the minimum lot size and setback requirements for non-residential
commercial use in the district. Appellants do not appear to have applied for the business
as a home occupation or other permitted use, nor for a variance, nor under '512 of the
Zoning Regulations as an enlargement of or change to a non-conforming use. The
Aexisting small lots@ provision of '501 of the Zoning Regulations does not apply in the
present case as the lot has already been developed with a residence and garage.
       Appellants first argue that no permit is required, as the use of the garage for repair
of customers= equipment is incidental to their permitted use of the residential garage for
storage and repair. Appellants= motion for summary judgment is denied on this point: the
existence of a Apermitted use@ category for Ahome occupations@ shows that the Zoning
Regulations distinguish between homeowners= use of their property for their own residential
use and use of their property for a business.
       Appellants next argue that the use of the garage for the agricultural repair business
qualifies as a permitted use in the LDR district. Permitted uses in this district include
agricultural uses and home occupations; conditional uses include Agasoline or motor
vehicle service station.@
       The question of whether the use qualifies as a permitted use is not strictly before the
Court in this appeal, as Appellants have not applied for a zoning permit for the use of the
garage as a home occupation or agricultural use, or other permitted use. Such an issue
would only be before the Court if such an application had been made to the Zoning
Administrator, if the Zoning Administrator=s decision had been appealed to the ZBA, and
thereafter if the ZBA=s decision had been appealed to the Court.
       In any event, even if such an application had been made and appealed, it would not
be suitable for summary judgment. Home occupation is defined in '130 as an A[a]ccessory
use conducted within a minor portion of a dwelling by the residents thereof, which is clearly

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secondary to the residential uses, is customary in residential areas, and does not change
the character thereof.@ Based on this definition, Appellants= business might be able to
qualify as a home occupation, if it were conducted entirely within the garage building, but
material facts would still be in dispute as to whether the garage is considered part of the
dwelling, whether it is a minor portion, whether the business is clearly secondary to the
residential uses, whether it is customary in residential areas, and whether it changes the
character of the area.
       Agricultural use, on the other hand, is defined in '130 as Aland containing at least
two (2) acres which is used for raising livestock, agricultural or forest products; or for the
storage of agricultural equipment and, as an accessory use, the sale of agricultural
products raised on the property.@ The proposed use of the garage would not qualify as an
agricultural use under this definition, as the lot does not contain at least two acres and the
repair of customers= agricultural equipment does not fall within the definition.


       We note that the only remaining three questions raised by the Statement of
Questions were:
       3. If not [an incidental or permitted use], is it a conditional use.
       4. If not, may the use be granted by a variance?
       5. If so, do the facts and circumstances comply with the variance criteria?
Oddly, by these questions Appellants do not seem to request this Court to consider the
merits of their conditional use application denied by the ZBA, although that is the only
decision before the Court in the present appeal. If they wish to do so, Appellants may
move to amend their statement of questions on or before July 7, 2000; otherwise the Court
will entertain a motion to dismiss the remainder of this appeal.


       Accordingly, based on the foregoing, Appellants= Motion for Partial Summary
Judgment is DENIED, and Appellees= Motion for Partial Summary Judgment is GRANTED
in PART, on the points discussed above, but is otherwise DENIED, as Appellants are
entitled to have the merits of their conditional use application ruled on by this Court de
novo, should they move to amend their statement of questions. Issues of whether the

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proposed use may be approved as a home occupation, as a change to a pre-existing, non-
conforming use, or as a variance, must be submitted to and ruled on by the appropriate
municipal body before they would be ripe for review by this Court. Appellees= request for
costs is denied as there is no provision for such costs in the statute or rules.



                                      th
       Done at Barre, Vermont, this 15 day of June, 2000.




                            _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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