                                    STATE OF VERMONT

                                ENVIRONMENTAL COURT

               Appeal of Douglas Spates and }
               Vivian Spates                }
                                            }        Docket No. 127-6-02 Vtec
                                            }
                                            }

                                      Decision and Order

   Appellants Douglas Spates and Vivian Spates appealed from a decision of the Zoning Board
of Adjustment (ZBA) of the Town of Derby, denying their proposal to convert a portion of a
vacant ground-floor commercial space to a residential apartment.

   Appellants are represented by Robert R. Bent, Esq.; the Town of Derby is represented by
Charles D. Hickey, Esq. Five interested parties entered their appearance in this appeal: Roland N.
Roy, Donna St. Jean, W. Perry Hunt, Ralph Miko, and Sandra Chaplin. An evidentiary hearing
was held in this matter before Merideth Wright, Environmental Judge, who also took a site visit
with the parties. The parties were given the opportunity to submit written requests for findings
and memoranda of law. Upon consideration of the evidence, the site visit, and the written
memoranda and proposed findings, the Court finds and concludes as follows.

   Appellant-Applicants own a building in the Village Commercial zoning district of Derby
Line, located on Main Street (U.S. Route 5). Residential multi-family use is a conditional use in
the district. The Zoning Bylaw states the objective of the district as follows: This district
provides for residential use and neighborhood type commercial facilities in an area served by
municipal services. ' 206.3. That section notes that the minimum yard dimensions are
inapplicable in the Village Commercial district of Derby Line, where this building is located.

    Directly to the south and across a small street from Appellants= building is the U.S. Customs
building. Directly to the north of Appellants= building, across a driveway, is another commercial
building housing a hardware or general store and a pharmacy. A residential apartment is located
above the pharmacy. Directly to the north of that building one road continues straight and
moderately down hill to the nearby border crossing, while the wider Main Street curves around
to around to the northeast past the opera house and into a neighborhood of larger single-family
houses. Main Street has a speed limit of 25 or 30 miles per hour in front of the building. While
large trucks use the border crossing, incoming trucks stopped at the border crossing must then
accelerate uphill towards Appellants= building and do not develop a great deal of speed by the
time they reach that location. Visibility for such trucks of the area in front of the building is
somewhat blocked by the grade at that location. Trucks approaching the border must slow down
at approximately Appellants= building.

   Main Street is very wide in front of Appellants= building, with ample room for angled parking
on both sides of the street. The few blocks from Appellants= building to the south constitute the
downtown center of Derby Line, characterized by ground level storefronts, some with residences
above the retail spaces. Directly across Main Street are similar buildings, housing a printer and
two vacant storefronts, both with residential apartments above the retail spaces. The old fire
station is located behind these buildings. South of these buildings are a bank and a gas station.
South of Appellants= building are the customs building, post office, village hall, and a church. In
recent years it has been difficult to attract businesses to the downtown, and a downtown
development committee was formed to carry out the community= s effort to stem the conversion
of viable commercial spaces to residential use, and to attract businesses to the downtown area.
The committee is particularly interested in attracting a restaurant and a grocery store to the area.

   Appellants= building appears to occupy1 approximately two-thirds of its lot. Its front wooden
porch abuts the sidewalk. A portion of the lot is located at the elevation of Main Street and the
road or driveway to the south of the building, but in the rear, the lot contains a retaining wall and
the remains of an old building foundation, and the yard slopes down a steep bank to the
northwest. Another three-unit residential building had been located in the rear and had been
taken down by Appellants to provide more parking for Appellants= building.

    At present Appellants= building houses three retail commercial spaces on the ground floor,
occupied by a laundromat, a hair salon, and a vacant space. The building now also houses nine
residential apartment units, one of which, a one-bedroom unit, is located on the ground floor
south side of the building, to the rear of the laundromat. The vacant commercial unit is 1800
square feet in size, in an L-shape, and has been vacant and offered for rent for approximately
four years. Appellants propose to convert approximately 800 square feet of that space in the rear
of the building to a two-bedroom residential apartment, and to continue to offer the 1000-square-
foot balance of the commercial space, including the storefront, for rent for a commercial use.
There is ample parking in front of the building for the commercial uses in the building.

   Appellants propose six spaces for parallel parking in the southerly side yard of the building,
seven parking spaces in the rear yard at the upper elevation (one of which, number 13, would be
blocked by number 12), and two spaces in the rear yard at the lower elevation, accessed by the
driveway to the north of the building, one of which, number 15, would be blocked by the other,
number 14. All the proposed spaces measure 9 feet by 18 feet.

    To approve the additional apartment, the Court must find that the proposal will not adversely
affect any of the criteria for conditional use approval2. ' 208.1. The parties do not dispute that
the proposed use will not adversely affect the utilization of renewable energy resources ('
208.1(E)), the capacity of existing or planned community facilities (' 208.1(A)), or the volume
of traffic on roads and highways in the vicinity. (' 208.1(E)).

   The proposal also will not adversely affect the character of the area involved. (' 208.1(B)).
The downtown area of Derby Line is a mixed use residential and commercial neighborhood,
characterized by local neighborhood commercial services and affected by the proximity of the
nearby border crossing and customs services. The characteristic appearance of the area is that of
a small town main street, rather wider than usual, with storefront businesses at ground level and
residential uses above them or in the rear of the buildings, interspersed with entirely commercial
or institutional buildings (such as the bank, the gas station, the customs building, the village hall,
and the church) and tapering off to residential uses at both ends.

   Members of the downtown development committee are understandably concerned that the
loss of even a single storefront for potential commercial use could further reduce the viability of
the > downtown= area. While the conversion of a storefront space to residential use would
adversely affect the character of the area, which is a main street of storefront businesses with
residential units either above or behind the storefronts, Appellants= proposal does not propose to
convert a storefront to residential use. It will keep the same number of storefronts and the same
appearance of the building and the downtown area. Appellants simply propose to convert the rear
portion of this unused commercial space to residential use. As both this 1,800 square foot space
and two larger storefront spaces across the street have been vacant for some time, we cannot
conclude that a reduction in the size of the available storefront space will make it less
marketable. In fact, Appellants= laundromat and hair salon spaces are both smaller commercial
spaces that are in commercial use, while the vacant commercial spaces across the street are
larger. If the vacancies in existing commercial spaces are due to their being oversized for
prospective commercial tenants, this reduction in size will make Appellants= space more rentable,
rather than less so. We also note that because Appellants= proposal does not involve the loss of a
viable storefront, its approval would not constitute any > precedent= for approval of any other
applicant= s proposal for conversion of storefronts to non-commercial use.

   More importantly, if the downtown development committee wants to encourage certain
commercial uses through the zoning regulations, it could provide special categories of preferred
uses such as a café-restaurant or neighborhood grocery store. However, nothing in the zoning
bylaw as now written gives a preference to commercial over residential use of existing space in
this district, or prohibits or discourages the conversion of commercial storefronts to residential
use. Nor is there a requirement of consistency with a municipal plan, as is found in some
municipalities= zoning regulations. Beyond the zoning regulations, there may be grant or subsidy
programs in the recently-passed downtown revitalization legislation. However, if those concerns
are not written into a municipality= s zoning ordinance, they cannot be imposed as such on
landowners.

    With respect to the proposal= s compliance with the other provisions of the zoning bylaw, on
the other hand, based on the evidence as presented by the Appellant-Applicants, the Court cannot
formulate appropriate conditions to avoid an adverse effect of the proposal on the parking
requirements3 found in the bylaws in effect at the time of this application. (' 208.1(D)). This is
so despite the fact that that bylaw section, ' 402.7A, clearly states that its requirements A are
recommendations only@ and that they may be changed by the ZBA, and hence this Court, in
considering conditional use approval. In considering whether the parking requirements should be
altered, the Court must be guided by the statement of intent in ' 402.7A(2) that the A principal
intent in regulating the design of parking areas is to ensure safe and effective traffic flow and the
integrity of the access to a public roadway.@

   Appellant-Applicants= proposal does not show whether any > handicap parking and access= is
required by state or federal regulations, or whether the age of the building exempts this proposal
from such requirements. ' 402.7A(6).
    Appellant-Applicants= proposal does not show the provision made for parking allocated to the
commercial uses in the building. Table 402.7B1. As observed during the site visit, there appeared
to be ample room for angled parking or head-on parking on the street in front of the building, but
it is not shown or discussed or laid out in the application, and therefore the Court cannot analyze
whether it is sufficient or what the primary hours of operation are for those uses. Appellant-
Applicants= proposal does not show whether that on-street commercial parking is proposed to be
shared by the residential uses as provided in ' 402.7A(7).

    Appellant-Applicants= proposal does not show how much room, if any, is available at the rear
of the lot if the land shown as the top of the > bank= in the rear yard were to be extended by the
addition of fill, or if such a proposal would even be possible. Similarly, Appellant-Applicants=
proposal does not show how much room, if any, is available at the rear of the lot if the land
shown as the top of the > bank= in the rear yard were to be further excavated so that more of the
land would be available at the lower level, or whether a driveway could or should be built on a
slope to connect the southerly proposed driveway with the northerly paved one. Although
evidence was presented that there was > ample room= over the bank behind parking spaces 7, 8
and 9 to accommodate snow storage, Appellant-Applicants= proposal does not show how the
proposed spaces would be plowed clear of snow if parking spaces 7, 8 or 9 were occupied during
the snow event. Appellant-Applicants= proposal does not show whether a snow plow could get in
through the narrow south side driveway or could turn around in the rear if all parking spaces
were occupied.

    The parking that should be allocated to the residential uses is 20 spaces, under Table 402.7B1.
It might very well be possible to approve a reduction in that number by a showing that, for
example, certain specified small apartments would only have a single parking space allocated to
them in their leases, or that a second space would be provided for certain apartments at a satellite
location, for example, at the church, the village hall, the bank, the old fire station, or the gas
station. It might serve the project better to provide sufficiently-sized spaces and aisles, by
reducing the number of on-site spaces and providing additional spaces in available off-site
parking. No such proposals were made, however, and no evidence was presented from which the
Court could analyze that issue.

   Further, the proposed parking is undersized in several ways. The parallel parking spaces
(numbered 1 through 6) should be 20 feet long, rather than 18 feet long, to accommodate the
parallel parking maneuver. ' 402.7A(8). The aisle adjoining those parallel parking spaces should
be 22 feet wide; but as proposed at its narrowest point it is only approximately 15 feet wide, and
no evidence was presented as to whether the combination of a shorter parking space and a
narrower aisle would be useable for the designated parking, especially in the winter. Moreover,
parking spaces in which one car blocks another, such as numbers 12 and 13 and numbers 14 and
15, are not allowed under ' 402.7A(2).

   As these requirements are advisory only, it might be possible to reduce them based on an
adequate engineering explanation of how the users of these spaces would be expected to park,
extricate themselves, turn around, and exit the property adequately. However, no such
explanation was provided in the evidence. It might be necessary to impose conditions such as
that all vehicles must turn around on site and exit the drive facing frontwards. However, based on
the evidence presented, the proposal fails to meet conditional use criterion ' 208.1(D).

    Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants= proposal
for conditional use approval of the conversion of approximately 800 square feet of retail space to
a two-bedroom apartment is DENIED. This denial is specifically without prejudice to
Appellants= presenting a revised application to the ZBA showing the rear property boundaries,
and proposing a revised parking proposal showing how it meets the parking requirements or
proposing specific alterations in the parking requirements requested for the project, including the
following: any proposed changes in the grading or elevation of any of the rear yard, the length of
the parallel parking spaces, handicapped parking regulations, the proposed tandem use of spaces,
the joint use of parking if proposed, between the commercial and the residential uses of this
building or adjacent buildings, and/or the provision of supplementary parking for the residential
users at a location either off-street or on-street within 800 feet.

    Dated at Barre, Vermont, this 6th day of January, 2003.



___________________
Merideth Wright
Environmental Judge



                                             Footnotes
1
    The lot lines are not shown at the rear of the lot, and it is difficult to determine whether there
is additional room on the lot down the embankment at the rear. If the lot is longer than shown on
the site plan, the Canadian border may cut across the rear portion of the property.
2
    Ordinarily, site plan approval is also required for all uses except single-and two-family
dwellings and agricultural uses. §209, first paragraph. Site plan approval is the mechanism to
address on-site circulation and parking, and to address the adequacy of traffic access on and off
the site. However, the Derby zoning bylaw (§209, second paragraph) allows the Zoning
Administrator to waive the requirement of site plan approval upon determining that the proposed
use "will not affect the adequacy" of the site plan criteria: (1) traffic access, (2) circulation and
parking, (3) landscaping and screening, and (4) utilization of renewable energy resources. If such
a determination was made regarding this proposal, it was not appealed to the ZBA, and is not
before the Court. In any event, the project did not go through site plan approval, and all that is
before the Court in the present appeal is the conditional use application.
3
    No other bylaws were argued to be affected.
