                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT



                In re: Appeal of John R. Mullen }
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                                                }       Docket No. 187-9-00 Vtec
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                             Decision and Order on remaining issue

   This Court= s Decision and Order dated March 7, 2002 concluded Docket No. 259-12-99
Vtec, and invited further memoranda on an issue raised by the unusual exemption in the City of
Barre zoning regulations for an existing undersized lot containing a nonconforming or
noncomplying building. ' 5.1.05(3). Appellant John R. Mullen is represented by L. Brooke
Dingledine, Esq.; the City of Barre is represented by Oliver L. Twombly, Esq. This decision and
order is supplementary to the March 7, 2002 decision and will not repeat the findings or
conclusions made in that decision.

Nonconforming Use or Existing Small Lot Analysis

   The City of Barre ordinance is much more expansive in its protections for existing small lots
than is state law. State law requires municipalities to allow development of existing small
undeveloped lots over an eighth of an acre in size and with minimum dimensions of 40 feet. 24
V.S.A. ' 4406(1). This statutory section does not prohibit municipalities from allowing the
development or the grandfathering of existing lots smaller than the state size standard, nor does it
prohibit municipalities from giving special protection to very small lots already developed with a
grandfathered structure.

    The Barre City ordinance contains two additional protections for preexisting small lots,
beyond the protection required by state law. One of the additional protections only applies to
existing undeveloped lots and is inapplicable to the present appeal. ' 5.1.05(2). However, the
third subsection of ' 5.1.05 gives an exemption for an existing undersized lot containing a
nonconforming or noncomplying building, such as Appellant= s lot. It provides that such a lot
may be developed for the purposes permitted in the district in which it is located even though not
conforming to the minimum lot size requirement A [i]f a nonconforming structure or
noncomplying building is situated on the parcel, provided that the coverage of the building is not
enlarged.@ ' 5.1.05(3).

   Appellant=s lot contains a A nonconforming structure or noncomplying building@ situated on
the parcel. The only nonconformity of Appellant= s lot is that it is undersized; that is, it fails to
meet the minimum lot size for any of the uses permitted in the district. It therefore qualifies for
the exemption in ' 5.1.05(3). As multi-unit apartment buildings are permitted in the district, the
ground floor may be converted to a third apartment as permitted by this section, provided that the
coverage of the building is not enlarged.

    As the City=s memorandum points out, the off-street parking requirement of ' 5.7.01(b)(2)
will not be met by the property= s present configuration of four parking spaces. However, this
issue was not raised in the present appeal. Appellant must also come into compliance with '
5.7.01 and 5.7.02, but may do so by any of the available mechanisms under the Zoning
Regulations: by adding a fifth parking space; or by reduction in the requirement by the DRB
under ' 5.7.01(c) or (d); or by a determination that it is inapplicable under ' 5.7.01(e) as the
building is not being enlarged; or by assignment of one of the spaces to two units with approval
of the DRB under ' 5.7.02(a); or by provision of a space on other property under ' 5.7.02(b).
Any application related to meeting the parking requirements is not before the Court in the
present appeal.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant=s
application to allow the conversion of the ground floor of the building from a commercial use to
use as a third apartment is GRANTED, based on the exemption provided in ' 5.1.05(3), provided
that the coverage of the building is not enlarged. We note that Appellant=s compliance with '
5.7.01 and 5.7.02, and any application related to meeting those parking requirements, is not
before the Court in the present appeal.

   Dated at Barre, Vermont, this 27th day of March, 2002.

___________________
Merideth Wright
Environmental Judge
