                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             In re: Appeal of Karstens, et al.      }
                                                    }
                                                    }   Docket No. 264-11-00 Vtec
                                                    }
                                                    }

                Decision and Order on Appellees= Motion for Summary Judgment

   Appellants William and Judith Karstens, Andrew LaBounty, Judy Lawrence, and James Jewett
(on behalf of Esther Jewett) appealed from a decision of the Zoning Board of Adjustment (ZBA) of
the Town of Franklin granting Appellees Richard Boudreau and Joyce Boudreau= s application to
construct a canopy over their shooting range. Appellants Karstens and Jewett are represented by
Jon Anderson, Esq.; Appellants LaBounty and Lawrence represent themselves; Appellee-
Applicants are represented by Jesse D. Bugbee, Esq.; and the Town is represented by Joseph S.
McLean, Esq. Appellees have moved for summary judgment that conditional use approval was
not required for the canopy.

   The following facts are undisputed unless otherwise noted. Appellees= property is located on
Gallup Road in the Rural Residential/Agricultural zoning district. Appellees own and run a
sporting goods retail store and a shooting range at that location, which appears also to be the
location of their home.

   Retail establishments, outdoor recreation facilities, and private clubs are conditional uses
under the current zoning ordinance adopted in 1981. Material facts are in dispute as to when the
shooting range was first opened, what its status was under zoning at that time, and whether its
use at the time of adoption of zoning was as an accessory use to Appellees= residence, an
outdoor recreational use, or some other use category, and whether its use was commercial or
non-commercial.

   Material facts are in dispute, or at least have not been provided to the Court, regarding when
the retail store was opened and what zoning approval, if any, was obtained for the retail store.
Material facts are in dispute regarding whether the use of the shooting range is now in any
respect an accessory use to the retail store, whether it is a separate outdoor recreational facility,
whether it is a non-profit club, or whether it falls within some other use category under the current
zoning regulations.

   The Supreme Court three-justice memorandum decision in Appeal of Pearl Street Mobil,
Docket No. 2001-249 (December 21, 2001), is persuasive authority (V.R.A.P. 33.1(c)) only on the
question of whether construction of a canopy over an existing nonconforming use is an
enlargement of that use if there is no dimensional nonconformity, and under a zoning ordinance
such as the City of Burlington= s.

   Section 330 of the Franklin zoning ordinance requires conditional use approval to alter as well
as to expand a non-conforming use or a noncomplying structure. If applicable, Section 330
requires a finding that the alteration or expansion will not substantially impair the appropriate use
or development of adjacent property, as well as a determination on the conditional use criteria.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellees= Motion for
Summary Judgment is DENIED, as material facts are in dispute. The information presented by
the parties suggests that conditional use approval may be required, at least for the canopy, but
we cannot make that determination without an evidentiary hearing on the disputed material facts.
We will hold a telephone conference on Friday, April 12, 2002 at 9:30 a.m. to discuss setting this
matter for any necessary hearing.

                                  st
   Done at Barre, Vermont, this 1 day of April, 2002.

___________________
Merideth Wright
Environmental Judge
