                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

                Appeal of Bowers, et al.         }
                                                 }
                                                 }     Docket No. 201-9-02 Vtec
                                                 }
                                                 }

                Decision and Order on Cross-Motions for Summary Judgment

   Appellants Dave Bowers, Norm Burnett, Dean Ruhl and Mary Ellen Ruhl appealed from a
decision of the City of Winooski Development Review Board (DRB) that Applicants Ernest and
Shirley Nolin= s proposed use of 156 Main Street for the repair of motor vehicles is a pre-existing
non-conforming use which may continue without a change of use permit. Appellants are
represented by John W. O= Donnell, Esq; the City is represented by Kristin C. Wright, Esq.
Applicants did not enter their appearance in this matter.

    The parties have moved for summary judgment on the issues of whether Applicants= garage
was itself a preexisting non-conforming motor vehicle service station use, or was only an
accessory use to the prior owner= s service station, whether Applicants= use should have been
treated as having been abandoned when that other service station was torn down, and whether
Applicants= proposal is an improper reestablishment of an abandoned non-conforming use. The
following facts are undisputed unless otherwise noted.

    Applicants purchased the property at 156 Main Street in 1993 from the former owner, Paul
Dufresne. It is located behind another structure that faces Main Street, which has the address of
154 Main Street. As described in the DRB= s Notice of Decision, in 2002, Applicants applied to
the DRB for a change in the garage building= s non-conforming use from a > garage= use to a use
allowing storage and light repair and maintenance of personal and business vehicles, including
oil changes and some painting of vehicles. The DRB= s ruling on that application is the subject of
the present appeal.

    Applicants= property contains a 78' x 27' multiple-bay garage building (A the garage building@
). It was first built as a four-bay garage, measuring 48' x 27', about fifteen years prior to adoption
of the City= s first zoning ordinance in 1981. It was enlarged by thirty feet5 under a permit
granted to Mr. Dufresne in 1982. The property is located on the west side of Main Street in what
is now the R-2 Medium Density Residential zoning district. The garage building was used over
time for the repair of motor vehicles, and for storage of vehicles and other items. Material facts
are in dispute, or at least have not been established on summary judgment, as to the extent of and
time frames for the motor vehicle repair use of the garage building, as opposed to the motor
vehicle storage or other storage uses of the garage building. Material facts are in dispute, or at
least have not been established on summary judgment, as to what, if any, facilities the garage
building contains for lubricating, washing or servicing motor vehicles.
   Mr. Dufresne also owned and operated a fuel oil and gasoline service station on another
parcel of land at 147 Main Street, across Main Street from the 154-156 Main Street property. The
City first adopted a zoning ordinance in 1981, under which the use category of > motor vehicle
service station= is defined as land A including the buildings thereon, which is used for the sale of
any motor vehicle fuel, [or] lubricant, or which has the proper facilities for lubricating, washing
or servicing motor vehicles by any means.@ Under the zoning ordinance, this use category was
not a permitted or a conditional use in the R-2 zoning district. Thus, as of the adoption of the
1981 zoning ordinance, if the garage building at 154 Main Street was then being used for and
had the proper facilities for lubricating, washing or servicing motor vehicles, the > motor vehicle
service station= use of the property became a pre-existing non-conforming use as defined by '
2.040 of the Zoning Ordinance and therefore became subject to the provisions of ' 8.400 et seq.

    In 1982, Paul Dufresne applied to the then-Zoning Board of Adjustment for approval to
enlarge the garage building by adding a thirty-foot section. In that application he referred to it as
a A storage garage@ and stated that the extension was to create indoor storage space for items then
stored outside: A oil barrels, signs, steel, display materials, trailer, truck, etc.@ He stated in the
application that these items were A used in conjunction with my fuel oil and service station
business;@ that is, the business across the street at 147 Main Street. The then-ZBA approved the
thirty-foot building enlargement as a variance, without stating explicitly what dimensional
requirements of the zoning regulations could not be met by the expanded building. The ZBA
minutes discussing this application for the thirty-foot expansion of the building do not discuss
the fact that the use of the building was also non-conforming.

   The ZBA in 1982 should also have addressed Mr. Dufresne= s application as an enlargement
or extension of a non-conforming use under ' 8.402. In addition, if at that time Mr. Dufresne was
converting (or had already converted) the use of the garage building to the storage of motor
vehicles and other items, but was not conducting the repair of vehicles there, then under ' 8.404
the ZBA should also have ruled on the change of the motor vehicle repair use to the storage use,
and should have determined whether the changed use met the conditional use approval standards
and whether it was > more appropriate to the zoning district= than the previous use for motor
vehicle repair.

   Appellants argue that Mr. Dufresne= s use of the garage building was as an accessory use to
his 147 Main Street fuel oil and service station business, and that therefore it necessarily lapsed
when he sold that business. However, the question of whether the non-conforming use of the
garage building for motor vehicle service lapsed under ' 8.405 of the Zoning Regulations is
entirely independent of whether it was or was not an accessory use. Rather, that question
depends on what actual use was made of and what facilities were contained within the garage
building from 1981 onward, and whether the motor vehicle servicing use of the building was
discontinued for more than six months at any time between 1981 and Applicants= 2002 permit
application.

   In fact, Mr. Dufresne= s use of the garage building could not have been classified as an
accessory use to his 147 Main Street fuel oil and service station business, because an accessory
use must be located on the same lot as the principal use. ' 2.001. Accordingly, summary
judgment is granted to the City on this issue.
   At some time between 1986 and 1991, Mr. Dufresne discontinued use of and sold the 147
Main Street gasoline service station, but continued to own and use the 156 Main Street garage
building. The 147 Main Street building was demolished and a new building was constructed by
the subsequent owner. Material facts are in dispute as to the use made of the garage building
after 1986; that is, to what extent it has been used merely for the storage of private vehicles, and
to what extent it has been used or contains facilities for motor vehicle repair and maintenance.

   Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that both
motions for summary judgment are DENIED as material facts are in dispute, except that the City=
s motion is GRANTED that the use of the garage building was and is not an accessory use to the
use of the property at 147 Main Street.

   We will hold a conference in person at the Costello Courthouse on Cherry Street in
Burlington at 9:30 a.m. on Thursday, March 6, 2003, to discuss the remaining issues and whether
this appeal should be set for trial or whether it should be remanded to the DRB for it to hold a
hearing and rule under ' ' 8.402, 8.404 and/or 8.405. We are scheduling this matter in person
rather than by telephone to enable the Nolins to decide whether they wish to participate in the
conference or to come into this case as parties, as they may not understand that their application
could be denied in this proceeding.

    Done at Barre, Vermont, this 14th day of February, 2003.



___________________
Merideth Wright
Environmental Judge



                                             Footnotes
1
    Their name is spelled as ‘Nolin’ on some documents and as ‘Nolan’ on others. As they have
not entered their appearance and no party has submitted their permit application, we have no way
to determine the correct spelling, and have used the spelling shown on the DRB Notice of
Decision.
2
    We must note that Question 1 of the Statement of Questions is stated as whether the DRB’s
decision "to approve a zoning variance" for Applicants was "legal and appropriate." However, it
appears from the DRB’s Notice of Decision that the DRB considered the application under
§8.402 as a change in use to a non-conforming use and a non-complying structure. Please submit
any motions to amend the Statement of Questions as soon as possible and before the conference
that will be held to discuss setting the remainder of this appeal for hearing on the merits. (See
enclosed scheduling notice.)
3
    At least as of 1982, under Mr. Dufresne’s ownership, the two structures appear to have been
located on a single parcel of land with the address of 154 Main Street; at some subsequent time
they may have been divided or at least appear to have acquired two separate street addresses.
Neither party has suggested that this issue is material to the application before the Court in this
appeal.
4
    Unless there is evidence that oil changes and the painting of motor vehicles occurred in this
building as a non-conforming use without having been discontinued for six months between
1981 and 2002, Applicant’s proposal to add oil changes or vehicle painting to the non-
conforming uses on the property would require the DRB to make a ruling under §§8.402 and
8.404, before it could be considered by this Court.
5
    While the building is described in Mr. Bowers’ affidavit as having six connected garages, the
1982 permit application requested an additional 30 feet of length but stated that it would only
add one additional overhead door.
