                                            STATE OF VERMONT


                                         ENVIRONMENTAL COURT


                                                    }
Appeal of Benoit & Kane                                            }             Docket No. 148-8-
                                                    04 Vtec
                                                    }


                             Decision on Cross-Motions for Summary Judgment

            Appellants Gregory P. Benoit and Deborah Kane appealed from a decision of the

Development Review Board (DRB) of the City of St. Albans, dated August 12, 2004,

denying their application for approval of the after-the-fact conversion, from day care to

residential use, of a second building on the lot, under '6021[1] of the Land Development

Regulations.            Appellants are represented by Michael S. Gawne, Esq.; the City is

represented by Robert E. Farrar, Esq; Interested Persons Paula B. Johnson and

Christopher J. Dermody entered an appearance and represent themselves.

            Appellants and the City have each moved for summary judgment.                The following

facts are undisputed unless otherwise noted.

            Appellants own property at 53 High Street in the High Density Residential zoning

district.          The former owners, Alan and Beverly Hayford, conveyed the property to


            1[1]
                   See City of St. Albans v. Hayford & Benoit & Kane, Docket No. 161-9-03 Vtec, slip op.

at 7 (Vt. Envtl. Ct., June 1, 2004).
Appellants in 2003.       The Hayfords purchased the property in mid-1976, prior to the

adoption of the first zoning ordinance for the City in March of 1977.

       The property is 20,9002[2] square feet in area, and has a lot width of 99 feet. The

property now contains two buildings, which occupy 20% of the lot area.             Both buildings

were erected long before the adoption of zoning in the City. The property is served by

municipal water and sewage disposal services.            The main building now contains five

dwelling units; a second, separate building in the rear of the property is the subject of this

appeal, and now contains one dwelling unit. When the Hayfords acquired the property in

1976, the rear building was in use as a print shop, and the front building was in use as

four dwelling units (apartments). In 1976, the Hayfords applied for and were granted a

building permit for general repair of the rear building to convert it to a nursery school.

This was not a zoning permit, as zoning had not yet been adopted; rather, it was a

building permit as allowed under 24 V.S.A. '3109. As of that time, the property contained

seventeen parking spaces; however, the materials provided to the Court do not contain any

diagram of the parking layout or whether it has changed over time.

       The rear building is located approximately four feet from the east or rear property

line and approximately two feet from the south side property line.          The front building is




       2[2]
              The City asserts that the lot is listed as only 19,700 square feet in area on the tax

map, but does not otherwise contest the deeded area.
located3[3] 24 feet from the front property line, 13 feet from the nearest side property line,

and 89 feet from the rear property line.




       3[3]
              Measurements are taken from Exhibit 8 in Docket No. 154-9-01 Vtec; the parties did

not provide a sketch or site plan showing the layout of the buildings and the various measurements

to the property lines in any of the three cases now pending before this court.
       Thus, as of the adoption of the March 1977 zoning ordinance, it appears4[4] that

the property was in a multi-family residential zoning district.          (See description of High

Density Residential zoning district (in Table 204.4 of the Zoning Regulations in effect in

1987) as Asimilar to the Multi-Family Residential District in the former zoning ordinance.@)

It appears that the minimum lot size for the district was 9,500 square feet, the minimum

lot area per dwelling unit was 3,000 square feet, the minimum lot width was 75 feet, the

minimum front setback was 20 feet, the minimum side setback was 10 feet, and the

minimum rear setback was 20 feet for the principal building and 4 feet for an accessory

building. The maximum allowed lot coverage was 35%.

       Section 304 allowed only one principal building per lot, unless otherwise approved

as a planned unit development or planned residential development. Section 401 required

site plan approval from the Planning Commission as a prerequisite to the issuance of a

zoning permit Afor any use or structure, except for one family and two family dwellings.@

Sections 602 and 603 allowed any non-conforming buildings or uses to continue

indefinitely, but not to be expanded, '602.1, or to increase the building=s degree of non-

compliance, '603, and not to be changed to another use without Aapproval by the Zoning

Board, and then only to a use which, in the opinion of the Zoning Board[,] is of the same



       4[4]
              The 1977 ordinance has not been provided to the Court, so that it is not entirely clear

which requirements went into effect with that ordinance, and which were added in the ordinance in

effect in 1986-87; however, any discrepancies do not appear to be material to the present case.
or a more restricted nature.@ '602.2.

       Thus, in its configuration and use as of March of 1977, the property was non-

conforming in only three respects: the side and rear setback of the rear building, and in

having more than one principal building on the lot. The rear building was non-conforming

as to its side setback5[5] regardless of whether it was in use as an accessory building or

whether it was a second principal building on the property. Assuming that the print shop

was not being operated as a home occupation by a resident living in the main building, the

property was also non-conforming in having more than one principal building, '304, and

as to the rear setback of the rear building (considered as a principal building). If the print

shop was being operated as a home occupation, '331, then the rear setback would have

met the requirement for an accessory building and the property would have met the

requirement of only one principal building on the property.




       5[5]
              This nonconformity renders the rear building a non-conforming use as well as a non-

complying structure.   In re Appeal of Miserocchi, 170 Vt. 320, 323-24 (2000) (non-complying

structures are also non-conforming uses under the state statute).
       The Hayfords converted the rear building to day care or nursery school use under a

building permit issued prior to the adoption of the 1977 zoning regulations.        For the

purposes of the present case, we need not determine whether that approval gave them a

vested right to accomplish that conversion without obtaining approval for that change of

use under '602.2 (as the rear building was non-conforming as to the side setback), or

obtaining site plan approval under '401 (prior to the issuance of a zoning permit for the

day care or nursery school use).    We also need not reach the question of the number of

children served by the day care use, or whether conversion of the rear building for that

purpose also required conditional use approval under '332.

       At some time in mid-1986, the Hayfords converted the interior space of the main

building from four dwelling units to five dwelling units. This change in the number of units

did not render the property more non-conforming, assuming the applicable zoning

regulations allowed multi-family use as a permitted use in the district, as it still met the

requirement of 3,000 square feet of lot area per dwelling unit and still had an adequate

number of parking spaces. While this conversion did not require approval under '602.2, it

should have obtained site plan approval under '401, as a prerequisite to obtaining a

zoning permit from the Zoning Administrator.       If the lack of site plan approval was
improperly authorized as a result of error by the Zoning Administrator,6[6] it left the status

of the building as non-conforming for failure to have site plan approval as well.




       6[6]
              We note that if a zoning administrator authorizes a nonconformity to occur or to be

enlarged in error, it remains a nonconformity subject to the provisions of the ordinance regarding

nonconformities. 24 V.S.A. '4303(13), (14) and (15) (2004).
       At some time in early7[7] 1987, the Hayfords moved the day care operations out of

the rear building, leaving it vacant.       They then converted the rear building to a sixth

dwelling unit and began renting it out.8[8]        This change in the number of units on the

property did not render the property more non-conforming, assuming the applicable zoning

regulations allowed multi-family use as a permitted use in the district, as it still met the

requirement of 3,000 square feet of lot area per dwelling unit, and still met the

requirements for two parking spaces per unit. In fact, it may have made the property less

non-conforming, if the use of the rear building for a residential unit made the rear building

an accessory structure to the multi-family residential use of the main building.

       After a fire in 1993 damaged one of the five apartments in the main building, the

Hayfords applied for and received a zoning permit to repair it. The issuance of that zoning

permit recognized that the property was allowed to continue with five dwelling units in the

main building, whether as a prior non-conforming use or as an allowed or permitted use,

and was the basis for the decision in Appeal of Hayford, Docket No. 154-9-01 Vtec (Vt.

Envtl. Ct., Feb. 26, 2003), which overturned a notice of violation regarding the fifth


       7[7]
              Appellants= Amended Statement of Material Facts at &2, filed April 4, 2005.

       8[8]
              The decision in Appeal of Hayford, Docket No. 154-9-01 Vtec (Vt. Envtl. Ct., Feb. 26,

2003), determined that, whatever discussion may have occurred between the Hayfords and the

Zoning Administrator, the City was not estopped from proceeding with enforcement regarding the

residential unit in the rear building. No party appealed that decision; estoppel is not at issue in the

present case.
dwelling unit in the main building.

        In March of 1998, the City adopted new Land Development Regulations, which

increased the minimum lot size to 10,000 square feet; increased the minimum lot area per

dwelling unit to 5,000 square feet; increased the minimum side setback to 15 feet for

other than single-family dwellings; set a minimum side setback of 5 feet for accessory

structures; and increased the minimum rear setback to 5 feet for accessory structures.

'304.    The requirement of no more than one principal building per lot was retained in

'403 of the 1998 Regulations. In the High Density Residential zoning district, multi-family

dwellings became conditional uses, so that a new or enlarged multi-family dwelling

required conditional use approval from the DRB under the standards in '502.

        Thus, as of the adoption of the 1998 Regulations, the property became non-

conforming as to any more than four dwelling units, due to the area-per-dwelling-unit

requirement, and became non-conforming as not holding conditional use approval.        The

main building became non-conforming on its north side as to the new 15-foot side setback

requirement. The rear building became more non-conforming as to the side setback and

became non-conforming as to the rear setback even if treated as an accessory structure.

        Section 304 of the 1998 Regulations also increased the maximum lot coverage to

50%, and added detailed requirements for off-street parking and landscaping, in

accordance with ''415 and 416. Without a plan of the parking and landscaping on the

site, we cannot determine whether these changes made the property non-conforming as to
lot coverage,9[9] as to the location of the off-street parking spaces, or as to the associated

landscaping requirements.       The fact that Appellants applied for a variance from those

requirements suggests that the property did not conform to some aspect of these

requirements. Calculated as two parking spaces per dwelling unit plus one guest space for

every three dwelling units, nine (or ten) spaces would be required for four dwelling units,

eleven (or twelve) for five dwelling units, and fourteen for six dwelling units, '415.7; if the

property retained all seventeen of its original spaces it remained conforming with the

number of required parking spaces.

       Section 304(C)(as amended in 2001) requires site plan review Afor all uses other

than single-family and two-family dwellings@ pursuant to Article 7.              Section 701(B)(1)

requires site plan approval for three classes of proposals: those that do not involve new

construction or enlargement of any structure, but do modify the arrangement of parking,

landscaping or other requirements of '704; those that do involve new construction or

enlargement of existing structures, but do not modify parking, landscaping or other

requirements of '704; and those that both involve new construction or enlargement of any

structure and modify parking, landscaping or other requirements of '704.




       9[9]
              Defined in the 1998 Regulations to include land covered by buildings, parking spaces,

and driveways; the former regulations only included land covered by buildings.
       Sections 602 and 603 of the 1998 Regulations, as amended, continued to allow

non-conforming buildings or uses to continue indefinitely, but not to increase a building=s

degree of non-compliance, '603(B). Section 602(D) allows Aany residential use which

under these regulations is non-conforming [to] be altered or extended, including the

addition of accessory structures, if such alteration or extension does not result in additional

dwelling units or the addition of other non-conforming uses.@ Section 602(E) prohibits the

alteration or extension of any non-conforming parking in this zoning district, Aexcept to

conform to these regulations.@

       After a Certificate of Occupancy was denied, soon after the adoption of the 1998

Regulations the Hayfords applied for approval of the six dwelling units, configured as five

units in the main house and one unit in the rear building. The ZBA denied the application,

ruling that the property required five variances: regarding the lot area, '304(D); the

sideline setbacks, '304(D); the rear setback (referring to the rear building as a principal

building), '304(D); landscaping around the perimeter of a parking lot, '415.4(B); and

parking within the required setbacks, '417.4. The ZBA also denied variances for those

items. The ZBA=s May, 1998, decision was not appealed and became final. In July of

1998, the Zoning Administrator issued a notice of violation, later vacated10[10] on procedural




       10[10]
                The ZBA had failed to act on the appeal of that notice of violation within the statutory

time limit and therefore vacated it; summary judgment was ultimately granted in favor of the

Hayfords in a subsequent Superior Court enforcement action due to the invalidity of that underlying
grounds, for the Ause of this property for six dwelling units when only four have received

approval.@




notice of violation. Garceau v. Hayford, Docket No. S98-99 Fc (Franklin Superior Ct., May 29,

2001).
       After the conclusion of the Franklin Superior Court enforcement action, in July of

2001 the Zoning Administrator issued a new notice of violation, again stating as the

violation Ause of this property for six dwelling units,@ and directing the Hayfords to Acease

and discontinue the use of two of the dwelling units,@ but without specifying discontinuance

of the dwelling unit in the rear building. The Hayfords appealed this notice of violation to

the DRB, and also applied to the DRB for a variance to use the rear building as a

dwelling unit, this time proposing to eliminate one of the five dwelling units in the main

building, which would have resulted in a total of five dwelling units for the property, to

meet the area-per-dwelling-unit limitation. The DRB denied this variance and upheld the

notice of violation; the Hayfords appealed both DRB decisions to Environmental Court in

Docket No. 154-9-01 Vtec.      Judge Meaker=s decision in Appeal of Hayford, Docket No.

154-9-01 Vtec (Vt. Envtl. Ct., Feb. 26, 2003), denied the variance request without

reaching the merits of the variance standards, on the basis that a variance had already

been denied in 1998 and had become final without appeal. That decision also overturned

the notice of violation as to the residential use of the fifth apartment in the main building,

based on the 1993 permit authorizing repair of one of those units, but sustained the notice

of violation regarding the residential unit in the rear building.    No party appealed that

decision, and it also became final.

       No party argues that the October 2001 amendments of the Land Development

Regulations made the property any more or less non-conforming. The Hayfords continued
to rent out the rear building after the February 26, 2003 Environmental Court decision

upholding the notice of violation. They transferred the property to Appellants on June 30,

2003. Two enforcement actions for injunctive relief and penalties regarding the residential

rental use of the unit in the rear building, Docket Nos. 161-9-03 Vtec and 126-7-04 Vtec,

remain pending in this Court on inactive status, until the present appeal is resolved. In its

June 1, 2004 decision in Docket Number 161-9-03 Vtec, this Court ruled that the

underlying enforcement action was not barred by the statute of limitations, but also noted

that the owners were entitled to apply for approval of the as-built conversion of the

non-conforming use of the rear building from a day care facility to a residential dwelling

unit, under the present non-conforming use provisions of the Regulations in Article 6. City

of St. Albans v. Hayford & Benoit & Kane, Docket No. 161-9-03 Vtec (Vt. Envtl. Ct., June

1, 2004). Appellants then filed that application; the DRB=s denial of it was appealed to

this Court in the present case.




       In the present case, Appellants seek approval11[11] under Article 6 of the Land

Development Regulations for the conversion of the rear building from its former non-

conforming daycare use to a residential dwelling unit. The fact that its conversion without

approval has been ruled to be a violation does not prohibit Appellants from applying to


       11[11]
                A copy of the application in the present case has not been provided to the Court in

connection with the present motions.
bring it into compliance after the fact.   Appeal of Cowan, 2005 VT 126, &10 (Dec. 13,

2005) (mem.) (citing In re Newton Enters., 167 Vt. 459, 462 (1998)).              Because

Appellants do not propose to modify the existing parking or landscaping configuration of

the property, site plan review is not required under the terms of any of the subsections of

'701(B).

       Under '602(A), a non-conforming use may be continued indefinitely, but A[s]hall

not be moved, enlarged, altered, extended, reconstructed, or restored, including the

addition of accessory structures,@ except as specifically provided in ''602(B), (C) and

(D). Of those, the applicable section is '602(D), which provides that a non-conforming

use may be altered or extended Aif such alteration or extension does not result in

additional dwelling units or the addition of other non-conforming uses.@
        Thus, the present proposal to approve the rear building as a sixth dwelling unit, in

addition to maintaining the main building as five dwelling units, does not qualify for

consideration under '602(D), as it would result in one additional dwelling unit, contrary to

the requirements of '602(D).           To be eligible for consideration of approval of the rear

building as a dwelling unit under '602(D), Appellants would have to propose12[12] to

reduce the number of dwelling units in the main building to four, as the Hayfords

attempted to do in their 2001 variance application.




        Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellants= and the City=s motions for summary judgment are both GRANTED in PART

and DENIED in PART.             The present application is not eligible for consideration under

'602(D), as it would result in the addition of a dwelling unit. A telephone conference has

been scheduled for December 28, 2005 (see enclosed notice).                 The parties should be

prepared to discuss whether this ruling concludes the present appeal, whether Appellants

wish to revise their application to conform with the requirements of '602(D), and what



        12[12]
                 The Court understands that such an application is not before the Court in this case,

and that Appellants may prefer not to relinquish any dwelling units in the main building that have

been ruled to have been approved. If they do file such an application, the Court would consider

waiving the filing fee for a subsequent appeal, due to the convoluted history of the litigation

involving this property.
proceedings should be scheduled in the related enforcement cases.




      Done at Berlin, Vermont, this 15th day of December, 2005.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge
