                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


                                      }
In re: Appeal of                      }
 Michael Gilberg, Ellen Gilberg,      }
  Patricia Tierney, John Scott,       }           Docket No. 179-10-99 Vtec
  Louis Beaudette and Cynthia Beaudette           }
                                      }

             Decision and Order on Motion for Judgment as a Matter of Law

       Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the
Town of Wilmington granting a conditional use permit amendment to Appellee-Applicant
Green Meadow Center, LLC . Appellants are represented by Robin Stern, Esq.; Appellee-
Applicant is represented by Richard D. Perra, Esq.; and the Town is represented by
Richard M. Gale, Esq. Appellants have moved for judgment as a matter of law.
       The following facts are undisputed unless otherwise noted.
       The property at issue is a forty acre parcel of land containing a dairy farmstead with
buildings constructed from 1885 through some time in the 1940s or 1950s. Whether all the
buildings were constructed before the adoption of zoning in Wilmington in 1968 is a
material fact not supplied by the parties in their materials, although it may not actually be
disputed. The property was in use for community movies and square dances, and was
operated as a ski lodge and a night club, but the dates of these uses also have not been
supplied. Without this information, and without the 1968 version of the Zoning Ordinance,
the Court cannot determine whether the use of the property or the location of the buildings
or number of buildings qualified as pre-existing, non-conforming uses as of the date of
adoption of the zoning ordinance.
       The property was acquired and renovated for use as a school in 1971 by the
Palisades School, Inc., under a so-called ASpecial Use1@ permit as a Agroup service use:


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         The application requested a Aspecial use@ permit and was on a form entitled
Aapplication for special use or variance.@ Only in the ZBA=s record of its vote was the

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private school and day camp@ under '7(A)(1), (4), and (9) of the Wilmington Zoning
Ordinance. The parties have not supplied the version of the Zoning Ordinance in effect in
1971, from which the Court could determine the nature of a Aspecial use@ permit. It
appears that the Aspecial use@ permit may have been distinct from a Avariance,@ and may
have been the equivalent of a conditional use permit, but the Court cannot make that
determination on the present evidence. The permit was not appealed and became final.
Various improvements to the property, including a new septic system, received additional
permits and were built between 1971 and 1985.
       The property was operated as a school from 1971 through some time in
approximately the summer of 1997, first by the Palisades School, Inc., and from 1976 by
Green Meadows School, Inc. The date of cessation of active use of the property as a
school has not been provided to the Court. A ten-acre parcel of land was sold by the
owner to Appellants Tierney and Scott in December 1997. The subdivision line for this sale
placed three of the school buildings, respectively, 22 feet, 22 feet, and 24 feet from the
property line. The side line setback is 20 feet in the Residential zoning district. Unlike
some zoning ordinances, the Wilmington zoning ordinance does not provide for an
increased setback for commercial uses in a residential district, although such requirements
may be imposed as conditions in a conditional use permit.
       A conditional use permit was issued on July 13, 1998 to the property owner, on
behalf of Appellee-Applicant (the prospective buyer) for a change in use/conditional use
permit to operate a >community center= on the property in lieu of the residential school. The
permit was not appealed and became final.           Conditions of the permit included a
requirement that only the Phoenix building (also known as the >large barn=) was approved,
and only for the five uses then proposed by Appellee-Applicant: 1) Day care and essential
early education; 2) Dance classes; 3) Office space; 4) Two staff members providing
>assistance to families with special needs=; and 5) Aerobics classes, each with specified
hours. It provided that any modifications to the permit would require >further application to


application referred to as a Avariance.@



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the Board.=
       The 1998 Conditional Use Permit expired by its terms one year from the date of
issue, but also provided that a request for extension could be made before the expiration
date and would become part of the permit upon approval by the Board. As no appeal was
filed of the 1998 Condition Use Permit, including no appeal of its extension provision, that
permit became final and neither it nor its extension provision can now be challenged, even
if such an extension provision was unauthorized when adopted. 24 V.S.A. 4472.             An
extension was granted under that provision on June 21, 1999, without notice to adjoining
property owners. The minutes of the June 21, 1999 action of the Board was not provided
to the Court; we cannot determine the length of time for which the extension was granted.
       The project therefore holds the 1998 Conditional Use permit and is entitled to
undertake the project according to that permit, regardless of the status of the 1999
Amendment at issue in the present appeal, and regardless of whether the uses authorized
by that permit should have been allowed in the district.
       On July 8, 1999, still before the original expiration date of the 1998 Conditional Use
Permit, Appellee-Applicant applied for an amendment to the 1998 Conditional Use Permit,
seeking to expand the uses to five other buildings, to expand the parking areas, and to
expand the uses to include a once-a-week medical clinic, after school activities, a computer
lab, a dining area/kitchen, a 6-unit senior citizen residence, a 6-bedroom dorm for program
participants, agricultural activities and an outdoor play area. This permit was granted and
is here on appeal.
       Appellants argue that the project is not a use eligible for a conditional use permit
and that several of the proposed uses are not themselves allowed as conditional uses in
the Residential districts.


       The Zoning Ordinance defines Agroup service@ as Aa service which is customarily
performed or provided for a number of persons at the same time or which customarily
involves the participation or presence of a number of persons as opposed, for example, to
the customary services provided or performed on an individual basis by the doctor or
repairman.@ It defines Agroup services uses@ as Aany use of land or buildings for the

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purpose of providing, performing or selling a group service.@ Reading these definitions
together, it is apparent that a group service may be provided on either a for-profit or a non-
profit basis.
       Wilmington has only two zoning districts: Residential and Commercial. In the
Residential districts, only agriculture, single and double family dwellings, home
occupations, and accessory uses are allowed as permitted uses. Conditional uses allowed
in the Residential districts are professional offices, motels and other lodging
establishments, and accessory uses. Conditional uses allowed in either district include
multiple family dwellings, cluster housing, children=s camp, and dumps and junkyards, as
well as the category at issue in the present case. That category is presented in the
ordinance as follows:
                A.   Conditional Uses Permitted in Either District Are:
                1.   Group service uses.
                     (a)     Churches, parish houses and community or fraternal
                             structures.
                     (b)     Golf courses, tennis courts, water impoundments, swimming
                             pools and similar recreational, participating athletic facilities,
                             even though operated commercially.
       If all group service uses were allowed as conditional uses in either district, it would
have been unnecessary for the ordinance to have specified these two subcategories of
group service uses. Because they were specified, the group service uses allowed in the
Residential district as a conditional use are only those which fall into the two subcategories.
Subcategory (a) includes only non-profit uses, while subcategory (b) specifically allows
commercially operated recreational facilities. Therefore the proposed amendment does
not fall within the specified subcategories.
       However, it appears from the history of this facility that it was a pre-existing non-
conforming use, operated under some sort of >special use= permit. Section 7(D) of the
Zoning Ordinance allows a change from one non-conforming use to another, following the
conditional use procedure. This may have been the underlying rationale for the 1998
Conditional Use Permit, and would support an amendment to the permit. Accordingly, if

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the requisite material facts can be established for the project to fall within this category of
the Ordinance, we will proceed to consider the proposed amendments on their merits
under '7(D).
       Material facts are in dispute as to Appellants= remaining arguments: that the project
does not meet the conditional use standards at least as to the character of the area and as
to traffic; that approval should not have been granted without a condition establishing the
entity responsible for owning or managing the project, and that setbacks greater than those
required in the residential zone should have been imposed as a condition. Those issues
will be addressed after evidence is presented in the hearing on the merits.


       Accordingly, based on the foregoing, Appellants= Motion for Judgment as a Matter of
Law is GRANTED as to the eligibility of the project within the '7(A)(1) subcategories of
group service uses. It is otherwise DENIED; the remaining issues require an evidentiary
hearing. The court will hold a telephone conference on December 7, 2000 to determine
the scheduling of such a hearing, any further discovery, and any additional motions.

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




                             _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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