                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


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In re: Appeal of                                  }      Docket No. 87-5-99 Vtec
        Pearl Street Mobil, by Fred Loyer         }
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         Decision and Order on Cross-Motions for Partial Summary Judgment

       Appellant Fred Loyer, doing business as Pearl Street Mobil, appealed from a
decision of the Zoning Board of Adjustment (ZBA) of the City of Burlington denying its
application for conditional use approval for the installation of a canopy over existing gas
pumps and to replace an existing non-complying sign. Appellant is represented by Brian P.
Hehir, Esq.; the City of Burlington is represented by Joseph E. McNeil, Esq. and Kimberlee
J. Sturtevant, Esq. The parties have filed cross-motions for partial summary judgment on
Questions 14 and 15 of the Statement of Questions: (14) Whether any applicable Zoning
Ordinance limitation on the enlargement of a pre-existing non-conforming use should be
calculated using the entire area of Appellant=s service station dedicated for business use
and (15) whether the proposed canopy is an accessory use under the Burlington Zoning
Ordinance.
       Appellant owns a gas and service station (Pearl Street Mobil) located on the corner
of Pearl Street and Hungerford Terrace in the Residential High Density (RH) zoning district
of the City of Burlington. Pearl Street Mobil is a non-conforming use as a gas station is not
an allowed use in this zoning district. The entire lot is approximately 11,808 square feet in
area; prior to 1987 the lot coverage was 100%, of which the building occupied 1440 square
feet and the remainder was pavement or parking.
       In January of 1987, the Appellant received a zoning permit to construct a 360
square foot addition to the building. The Adescription@ section of the application stated in
full: ATo construct a 12' x 30' addition as an expansion of 25% of a non-conforming use.
(Lot is currently at 100% coverage).@ The application was approved with conditions.
       In December, 1998, Appellant applied for the zoning permit at issue in this appeal:

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to install a 61' x 36' canopy over the existing gas pumps, to replace an existing sign, and to
install landscaping at the base of the sign. The application described the lot as 11,808
square feet, with a principal structure of 1800 square feet, and described the lot as Aall
paved except principal structure.@ Any change or modification to a nonconforming use
requires conditional use approval under '20.1.5 of the Burlington Zoning Ordinance.
Section 20.1.6(b) allows a nonconforming use to be enlarged within the existing lot Aby up
to an aggregate of twenty-five per cent (25%) of the floor area, building or structural
capacity existing at the time that the use first became nonconforming.@
       The proposed canopy is not a change in the nonconforming use, but it is an
enlargement of a structure containing a nonconforming use.             24 V.S.A. '4408(b).
Compare, also, In re Appeal of Miserocchi, Docket No. 99-166 (Vt. Supreme Ct., Jan. 28,
2000). Accordingly, it comes within the provisions of '20.1.6 of the Zoning Ordinance.
Section 20.1.6
       The City argues that '20.1.6 provides authority only for a one-time enlargement, and
that Appellant used its allotment in the permit for the 1987 addition. Section 20.1.6 does
not limit an applicant to a one-time enlargement, as long as the extent of the enlargement
does not use up the 25% expansion allotment. The plain language of '20.1.6 allows
enlargement of up to an aggregate or total of 25%, not only of the existing floor area, but of
the structural capacity existing at the time the ordinance took effect which made the use
nonconforming.
       However, nothing in '20.1.6 supports measurement of the 25% allotment by the
square footage of the entire parcel, even though it all is or was paved. Rather, the
expansion allotment is to be measured by 25% of the original building, or of the aggregate
of the original building and any then-unused structural capacity1.


       1
         This term is not defined by the ordinance, but in the context it must mean the
amount of additional structure which would have been able to have been built in
conformance with the zoning ordinance (as to setback, lot coverage, and similar
dimensional limitations) at the time the use became nonconforming. It is not clear to
the court whether the structural capacity of this site can be determined from the
information provided with the motions for summary judgment. Accordingly, for the
purposes of the remainder of today=s decision, we will use the then-existing building

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       The original building was 1440 square feet, 25% of which is 360 square feet. The
1987 addition in fact did use up all of the expansion allotment. Accordingly, no expansion
allotment remains under '20.1.6 for Appellant to use for a canopy. Of course, if Appellant
wishes to install a canopy over each of the existing islands, and not exceeding their area,
he may apply to do so under '20.2.5, without implicating '20.1.6(b).
Accessory Use
       Appellant also contends that the canopy is an accessory building or use, and is
therefore a permitted use under '5.1.10. First, the Zoning Ordinance cannot be interpreted
to yield an absurd result. If the principal use is non-conforming in a particular district, then
a use or structure accessory to it must also be non-conforming, even though it is
subordinate and incidental to that principal non-conforming use.             As a change or
modification to a non-conforming use, it would fall within '20.1.5 whether it is defined as
accessory or principal.
       Second, the canopy proposed in the present application is not subordinate in area
or extent to the principal use or building. Not only does it exceed 25% of the area of the
principal building, at 2196 square feet it is a third larger than the area of the principal
building on the lot. It does not qualify for approval as an accessory building.
       Even if it were accessory, because the use to which it is accessory is a
nonconforming use, it would have to be approved as an expansion of a nonconforming use
under '20.1.6
       Accordingly, based on the foregoing, both parties= motions for partial summary
judgment are granted in part and denied in part. The 1987 permit does not preclude the
proposed canopy from being analyzed under '20.1.6; however, the 1987 application used
up the 25% expansion allotment (unless the lot had excess structural capacity beyond the
1440-square-foot building existing at that time); and the canopy does not qualify for a

(1440 square feet) as the measure of the expansion allotment. Appellant may move to
amend this decision and supplement his summary judgment to support any argument of
unused structural capacity with appropriate facts.




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permit as an accessory use or structure.
      The Court will schedule a telephone conference on March 3, 2000 to discuss
whether   and which issues remain for trial or whether Appellant wishes to file any
supplementary motions as discussed in the footnote to this decision.

      Done at Barre, Vermont, this 23rd day of February, 2000.




                          _________________________________________________
                               Merideth Wright
                               Environmental Judge




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