                                  STATE OF VERMONT

                                 ENVIRONMENTAL COURT


                                          }
In re: Appeal of                          }
 Victor Gilding, Rita Gilding,            }       Docket Nos. 173-9-98 Vtec and
 and Richard Cameron                      }             174-9-98 Vtec
                                          }

                                  DECISION and ORDER

       Appellants appealed in Docket No. 173-9-98 Vtec from a decision of the Planning
Commission of the Town of St. Johnsbury granting site plan approval to Appellee-Applicant
Daniel Thompson to construct and landscape a parking area for heavy equipment
associated with his construction contracting business, in the northwesterly area of his
property. Appellants appealed in Docket No. 174-9-98 from a decision of the Zoning Board
of Adjustment (ZBA) granting a conditional use permit to Appellee-Applicant for his
construction business as a Aneighborhood commercial facility.@ Appellants are represented
by Robert A. Gensburg, Esq.; Appellee-Applicant Daniel Thompson is represented by
William P. Neylon, Esq.; the Town of St. Johnsbury is represented by Edward R. Zuccaro,
Esq.
       An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, who also took a site visit with the parties. The parties were given the
opportunity to submit written requests for findings and memoranda of law.              Upon
consideration of the evidence, the site visit, and the written memoranda and proposed
findings, the Court finds and concludes as follows.
       Appellee-Applicant Daniel Thompson, doing business as Dan Thompson
Construction, owns and resides on a 13-acre parcel of property on Town Road 52 (the
Sylvain Road) near an intersection with Interstate Highway 91 (I-91) in St. Johnsbury, in the
Rural Lands Two zoning district. Single family dwellings, agriculture, home occupations,
commercial horse farms, and accessory uses are all permitted uses in the Rural Lands
Two zoning district.


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       The Sylvain Road (also known as Sylvain Farm Road) is a gravel road serving a
rural area. The Thompson driveway is 0.1 mile to the north of the I-91 access road on the
west side of Sylvain Road. The Cameron driveway is 0.1 mile farther north on the west
side of the road. The Gilding driveway is 0.2 mile to the north of the I-91 access road on
the east side of Sylvain Road, across the road from the Thomson property. Continuing to
the north along Sylvain Road are homes and farm fields, including the Cohen farm which
raises horses and cows for sale. Mr. Cohen also holds a home occupation permit to
display and sell horse trailers, restricted to the display of up to four trailers at a time; he
sells approximately eight such trailers a year.
       Other property owners in St. Johnsbury have been issued home occupation permits
for additions to their homes and to run businesses on their home properties, including a
vending machine servicing business with six trucks stored overnight on the landowner=s
property; an auto body shop business with four employees and a storage building as well
as a building in which the work is performed; a logging business with a log truck, a
bulldozer and several hydraulic log loaders stored and maintained in a garage on the
landowner=s property; an artist=s business with up to 14 employees working with power and
hand tools in studio and workshop buildings on the landowner=s property; and a roofing and
painting business with four employees with two trucks stored overnight on the landowner=s
property.
       In January 1998 Appellee-Applicant applied for and was granted a permit to
construct a 30' x 34' garage on his property. It was granted as an accessory use to his
residence, and was not appealed.
       Appellee-Applicant operates a construction contracting business from his property.
He purchased the business as a going concern in April of 1998. The business serves the
St. Johnsbury region, with most jobs being located within a half-hour drive of his property,
that is, a radius of roughly thirty miles. The business uses the following equipment, which
is stored on the property: a ten-wheel dump truck, two six-wheel dump trucks, a bulldozer,
a front-end loader, an excavator, a backhoe and two equipment trailers. The equipment is
stored at the property, but may be transferred directly from one job site to another, without
returning to the property, depending on the location and the timing of the various jobs. The

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equipment is by law equipped with backup beepers, which operate automatically whenever
the equipment is shifted into reverse, including if it is backed up to load it onto the
equipment trailers. When the backup beepers operate on Appellee-Applicant=s property,
they produce an insistent and obtrusive repetitive sound that can be heard at the
neighboring residences, including the Gilding home. In the summer of 1998 they operated
from as early as 6:15-7:15 in the morning and as late as 4:00 to 7:00 p.m., six days a week
and occasionally on Sundays.
       Appellee-Applicant applied to operate his construction contracting business from the
property as a Ahome occupation.@ A Ahome occupation@ is protected by state statute (24
V.S.A. '4406(3)) and is defined by the St. Johnsbury Zoning Ordinance as an
       accessory use conducted within1 a minor portion of a dwelling by the residents []
       thereof[,] which is clearly secondary to the dwelling used for living purposes and
       does not change the character thereof.




   1
     A portion of Appellee-Applicant=s business: the office and telephone work, may be
conducted within a minor portion of the dwelling, even if the storage of the equipment is
conducted outdoors or within the accessory garage. Thus, it is possible that the office
work could qualify for approval as a home occupation, even if the outdoor equipment
storage does not.




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In June of 1998, that application was denied site plan approval, and the home occupation
permit was denied for the business in general, although he was granted a home occupation
zoning permit to Ause a small portion of the garage for occasional equipment repairs,@ with
the condition that only Aone piece of equipment at a time will be parked on the west side of
the lower level garage when service is required.@ He did not appeal, and therefore the
question of whether his remaining use of the property qualifies as a home occupation is not
strictly before the Court, at least not at this time. The ZBA may have suggested (or may
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have responded to his inquiry) that he should instead apply for a conditional use permit
and site plan approval to operate his construction contracting business from the property
and repair his construction equipment in his garage, as a Aneighborhood commercial
facility,@ a use allowed as a conditional use in the Rural Lands 2 zoning district. He applied
and was granted both approvals, which are the subject of the two appeals now before this
Court. The site plan approval imposed conditions requiring the closure of a newly-
constructed second driveway and parking area, prohibited storage between the garage and
the road, and approved the upper parking area with a berm to be seeded and mulched to
stabilize the bank. The site plan approval imposed landscaping conditions and regulated
water runoff from the upper parking area.
       A Aneighborhood commercial facility@ is defined by the St. Johnsbury Zoning
Ordinance as
       any commercial facility such as a grocery, general, newspaper or drug store or retail
       service establishment intended principally to serve the neighborhood in which it is
       located, and in addition is to include commercial facilities designed to serve an area
       beyond the neighborhood but to be limited to 10,000 square feet in area.
       Appellee-Applicant=s construction contracting business does not fall within the
meaning of Aneighborhood commercial facility.@ It is not a retail establishment such as the
listed examples, and it is not intended principally to serve the neighborhood in which it is
located. Indeed, it is not necessary or customary for customers of a contracting business

   2
    Appellee-Applicant may be entitled to a belated appeal of this ruling, if he can
show that he relied on any assurances from the ZBA or Town officials in deciding not to
appeal the home occupation ruling.

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to come to the facility where the equipment is stored for any reason whatsoever, regardless
of whether it is or is not located in the customer=s neighborhood. Rather, Appellee-
Applicant goes to the customer=s property, where the contracting or excavation work is to
be done, to develop a bid for the job, and then brings the necessary equipment and
equipment operators to the job site on the customer=s property.
       Because Appellee-Applicant=s use of the property does not fall within one of the
conditional use categories in the Rural Lands Two district, it cannot be approved as a
conditional use, regardless of whether the use adversely affects the character3 of the area,
and regardless of whether the Town has granted such permission to other landowners with
other uses in other zoning districts within the Town.
       Rather, if the Town wishes to provide a mechanism for the approval of certain
home-based businesses as conditional uses, the Town may define such a use category in
any zoning district. Similarly, the Town may amend its definition of home occupation to
provide for certain outdoor uses of property within that use category as a permitted use, or
may shift the use category of Ahome occupation@ from a permitted use to a conditional use
in some or all zoning districts. What the Town may not do, however, is to approve a home-
based business as a conditional use by assigning it to a use category despite the fact that
it fails to qualify for consideration in that use category. As the St. Johnsbury Zoning By-laws
do not define a home-based business with outdoor vehicle storage or other outdoor uses
as a conditional use in this district, it simply cannot be approved as a conditional use, and
therefore also does not qualify for site plan approval.




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      From the evidence presented, it appears that at least the operation of the
equipment in reverse (with the backup beepers) does adversely affect the residential
and agricultural character of the surrounding area, but such a finding is not necessary
to this decision.




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       Appellee-Applicant has a construction contracting business which he is operating
from his home, without a home occupation permit even for the office aspects of his
business. He has a garage which has received a zoning construction permit as accessory
to the permitted uses of his residence, and has received a limited home occupation permit
to use a Asmall portion@ of the garage for Aoccasional@ equipment repairs. To date, those
are the only uses of the property which have received a permit.         Appellee-Applicant=s
business does not fall within the definition of Aneighborhood commercial facility.@ It is
hereby ORDERED and ADJUDGED that Appellee-Applicant=s business therefore does not
qualify for a conditional use permit or for site plan approval on that basis, which is the only
decision here on appeal. This decision is specifically without prejudice to Appellee-
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Applicant=s applying for any portion of his contracting business as a home occupation,
including for the office aspects of his business, or for any seasonal storage of the
construction equipment. Given the length of time expended on the present appeals, the
Court will expedite any appeals taken by any party from future decisions involving this
property; any appealing party should so note in any future notice of appeal.


       Done at Barre, Vermont, this 24th day of July, 2000.



                                    _____________________________________
                                    Merideth Wright
                                    Environmental Judge




   4
     Any argument regarding the unappealed 1998 decision may be made in that
context and would therby be preserved for any later appeal.


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