1 STATE OF VERMONT
ENVIRONMENTAL COURT

} In re Sheldrick Building Permit } Do cket No. 185-9-07 Vtec (Appeal of Bennett and Naritomi) } (appeal of municipal building permit) }

Amended Merits Decision 1 Donald and Heidi Sheldrick sought and obtained a zo ning permit from the Town of Charlotte Zoning Administrator for the construction of a two-bay garage/workshop (“Proposed Workshop” or “Workshop”) at their home at 1091 Rosc oe Road. Appellants Stuart Bennett and Patti Naritomi (“Appellants”) filed a timely appeal of the Zoning Administrator’s issuance of the Sheldrick permit. When the Town of Charlotte Zonin g Board of Adjustment (“ZBA”) upheld the issuance of the Sheldrick building permit, Appe llants filed a timely appeal with this Court. 2 Appellants presented three issues for this Court’s review in their Statement of Questions. When this Court’s Interim Decision of May 30, 2008, on the parties’ cross-motions for summary judgment (“Interim Decision”) resolved some, but no t all of the issues presented, this matter proceeded to trial, which was completed over two da ys. The Court conducted a site visit of the subject property and the surrounding neighborhood p rior to addressing the parties’ summary judgment motions. The site visit also assisted the Court by putting the evidence received at trial
into context. Procedural Background By our Interim Decision on the parties’ summary jud gment cross-motions, we reduced the legal issues requiring adjudication at trial, s pecifically holding that the following two issues were all that remained of the challenges Appellant preserved for our review in this appeal. We
concluded that the first issue to address was wheth er the Proposed Workshop would be “subordinate . . . to the principal structure and u se” as that phrase is used in §§ 3.6(A)(2) and 10.2 of the Town of Charlotte Land Use Regulations (“Regulations”). Interim Decision at 6–10.

1 This Amended Merits Decision supersedes the Mer its Decision that was issued on April 1, 2009, and is issued in connection with the granting of Appellants’ motion for amendment of judgment, specifically for the pur pose of clarifying the permit conditions. See Entry Order dated April 23, 2009. 2 Appellants are represented by Vincent A. Paradis, Esq.; Appellee-Applicants Donald and Heidi Sheldri ck (“Applicants”) are represented by Liam L. Murphy, E sq.; the Town of Charlotte is represented by John H . Klesch, Esq.; and Annemarie Curlin, appearing in this proce eding as an interested person, represents herself.2

We also concluded that the second and remaining iss ue to address at trial was whether the Proposed Workshop and its use for a home occupation conforms to the Performance Standards itemized in Regulations § 3.12. Id . at 10–11. Our Interim Decision clarified some further legal i ssues that bear repeating in this Merits Decision. First, we note that Applicants’ only pen ding zoning request is for permission to build their Proposed Workshop as a lawful accessory struc ture and that the only disputed issue is whether their accessory structure is “subordinate” to their dwelling and residential use of their property. Id . at 6–9. 3 As to the use of the Proposed Workshop, Applicant s contend that they are not required to obtain a use permit for their Works hop, since their activities may be classified as a home occupation that does not require a permit. Id . at 9–10; see also Regulations § 4.11(A)(1). We reserved responding to Applicants’ contention on the home occupation issue, subject only to addressing the subordination and performance standa rd issues being addressed at trial. Interim
Decision at 10. Within the context of these remaining legal issues, we render the following Findings of Fact from the evidence admitted at trial, including that evidence put into context by the site visit the Court conducted with the parties prior to trial : Findings of Fact
1. Applicants own a four-acre parcel of land on the ea sterly side of Roscoe Road. The property is located in the Rural Zoning District, a s defined by Regulations Table 2.5. Presently situated on Applicants’ property is a single family dwelling, a detached garage, a horse barn, a run-in shed for horses and other animals, and a tem porary workshop/garage. The existing buildings on Applicants’ property are depicted in t he photos admitted in to evidence at trial as Exhibits H-1 through H-6, and are shown by the demo nstrative model prepared by Appellants’ expert and admitted in to evidence at trial as Exhi bits 11 through 11-6.
2. Mrs. Sheldrick has lived in this neighborhood her w hole life. The Sheldricks purchased the subject property from Mrs. Sheldrick’s parents; Mrs. Sheldrick first resided on the property in 1997 in a mobile home, which was later replaced by the existing dwelling.
3. The existing dwelling, constructed in 1999, measure s 28’ x 32’ and includes a 12’ x 8’ enclosed mudroom, a 6’ x 8’ front porch, and a 12’ x 16’ rear deck. Thus, the footprint of the existing dwelling comprises approximately 1,232 squ are feet. With three floors of finished

3 There has been no contest of Applicants’ represen tation that their Proposed Workshop conforms to set back and density requirements for the Rural Zoning District.3

living space, the cumulative floor space of the dwe lling comprises approximately 2,832 square feet. The dwelling is depicted on Applicants’ Exhi bit H-1.
4. The dimensions of the outbuildings on the property are as follows:

a. detached garage is 24’ x 40’, with a footprint of 9 60 square feet; b. horse barn is 12’ x 60’, with a footprint of 720 sq uare feet;

c. run-in shed for animals is 10’ x 12’, with a footpr int of 120 square feet; and d. temporary garage is 14’ x 32’, with a footprint of 488 square feet. Therefore, the total existing building coverage on the property, including the dwelling and the outbuildings, is 3,520 square feet, which r epresents approximately 2% building coverage for the four-acre parcel.

5. Applicants obtained a zoning permit in October of 2 007 to construct the temporary garage and use it for the purpose of their home occ upation truck repair business. Applicants have pledged to remove the temporary garage, if the y receive permission to construct and use the Proposed Workshop.
6. With the exception of the temporary garage, all of the existing buildings on Applicants’ property are used as their primary residence or in connection with their primary residence and to house their personal hobbies, including the raising of horses and other animals. None of these existing buildings (again, with the exception of th e temporary garage) are used for commercial or business-related purposes. 4

7. Mr. Sheldrick first lived at the subject property i n 2003; he has performed some type of occupational work on the property since he first mo ved there, beginning with the repair of truck drive shafts at his home while he worked away from home at a machine shop.
8. He began his home-based business of repairing large trucks in 2004. Many of the trucks he services are delivery trucks, including trucks t hat deliver fuel, lumber, beverages, and other supplies. The largest trucks he services are loggi ng trucks, with a self-contained boom and claw to stack logs.
9. Trucks are commonly identified by various classes, ranging from class 1 (which includes utility vans and full-sized pick up trucks) to clas s 8 (which includes dump and cement trucks). A copy of a truck classification table, with truck ex amples, was admitted as Applicants’ Exhibit P.

4 Mr. Sheldrick once used a portion of his existing garage to store work tools and supplies, but this practice will cease once the Proposed Workshop is completed.4

The majority of trucks Mr. Sheldrick repairs are in the class 6 and 7 category, with an occasional truck in the class 8 category.
10. The truck repair business requires Mr. Sheldrick to travel to the disabled truck and to often repair the truck away from his home; Mr. Shel drick performs an average of up to 60% of his truck repair business away from his home. When he is required to bring the disabled truck to his home workshop for repair, he will often work on the truck off-site until it is repaired sufficiently to allow him to drive the truck to his home for further repairs. He prefers not to employ a large tow truck to deliver the disabled tr uck to his home, due to cost and so as to minimize the frequency of large truck travel in his neighborhood.
11. The Towns of Charlotte and Monkton will sometimes l imit the size or weight of large trucks that may travel on town highways, particular ly with back roads that are soft, due to mud season. Mr. Sheldrick has obtained permission, how ever, from both towns to use his discretion in travelling over dirt roads with large trucks, wh en necessary to bring them to his home for repair work.
12. The majority of repairs Mr. Sheldrick performs on t rucks falls into five general categories: repair of the brakes, rear ends, transm issions, engines, and electrical systems. He testified at trial, however, that “I repair anythin g that gets broke on a truck.”
13. Prior to constructing the temporary workshop/garage , Mr. Sheldrick would often work on a disabled truck in his driveway. He installed the single-bay, canvas-sided temporary garage
after he was advised that outside work on trucks wa s not considered a permitted home occupation.
14. While using the temporary garage, Mr. Sheldrick wou ld sometimes work on trucks outside, in his driveway. Sometimes he would store one or more trucks in his driveway, while the trucks awaited parts or delivery back to their owners. When stored outside, these trucks were visible from Roscoe Road and immediately abutting p roperties.
15. In the course of working on trucks, Mr. Sheldrick u ses a wide variety of hand- and power-driven tools, including tools powered by an a ir compressor that he maintains in the existing garage. Mr. Sheldrick also owns and somet imes uses an arc welder in his truck repair
business.
16. In March 2007, Applicants submitted an application for a zoning permit to construct the Proposed Workshop, measuring 35’ wide by 50’ long o r deep. The Proposed Workshop would5

have 16’ sidewalls, a 24’ 8” peak, sit on a concret e slab, and be designed to resemble their existing horse barn. The footprint for the Propose d Workshop will be 1,750 square feet.
17. Mr. Sheldrick sized the Proposed Workshop so that e ach of the two bays would accommodate the largest truck he is called upon to service: a logging truck with a boom and claw device. The design also allows for enough spa ce for Mr. Sheldrick to move around each truck with his tools, while he works. The large ov erhead doors on each bay will be insulated, so as to diminish the noise that travels beyond the Sh eldrick property. Mr. Sheldrick pledges to keep the overhead doors closed while he is using po wer tools on the property, so as to reduce the
off-site noise levels.
18. So as to further reduce the noise his neighbors exp erience from his business, Mr. Sheldrick pledged to insulate the entire Proposed W orkshop and to pipe the air compressor so that air is drawn from the Workshop rafter area.
19. The intended location of the Proposed Workshop comp lies with all setback and height limitations as set forth in Regulations Table 2.5(E ), §§ 3.5–3.6. Applicants presented credible evidence that the Proposed Workshop will be sited i n such a manner (in particular, below the grade of their home and existing garage, and set ba ck from the front of the existing garage) so as to diminish the effect of its appearance as viewed from off of their property in general and from Appellants’ property in particular.
20. The Proposed Workshop will have two stalls. Mr. Sh eldrick’s usual work habit is to work on only one disabled truck at a time. However , the new two-stall Workshop would allow
him to store one disabled truck inside while it awa ited parts, and use the second stall to work on
another disabled truck. No disabled trucks would b e stored or worked on outside of the Workshop or in Applicants’ driveway.
21. The Proposed Workshop is not intended for human occ upancy and will not contain a bathroom or other facilities requiring a municipal or state waste disposal permit, pursuant to Regulations § 3.16.
22. There will be no exterior lighting installed on the Proposed Workshop.
23. Only Mr. Sheldrick will work on disabled trucks at his home place. Mrs. Sheldrick maintains the records and bookkeeping for their tru ck repair business; there will be no other employees for this home occupation.
24. On average, Mr. Sheldrick works on about three tru cks per week at his home place. He receives deliveries of spare truck parts and other business supplies about once or twice a day.6

The owners of the trucks Mr. Sheldrick repairs rare ly travel to his home for business purposes. He and his wife provided credible testimony that th eir home-based truck repair business would not generate vehicle trips in excess of the 12-trip -per-day limit for Level I Home Occupations, as defined in Regulations § 4.11(A)(1).
25. Applicants provided credible evidence at trial that the loudest piece of equipment in their truck repair business is the air compressor and too ls powered by it. This air compressor is currently housed in their existing garage, which is only partially insulated and has un-insulated overhead doors. Mr. Sheldrick provided credible ev idence at trial of his estimates of sound levels from the current operation of his equipment. Using a digital sound level meter to test the decibel level of the compressor from various points on their property, Mr. Sheldrick provided a credible estimate that his equipment, when operated in his existing garage with the overhead door open, registered a 52 decibel sound level at t he end of their driveway and edge of their property. Applicants also recorded a 68 decibel so und level from an idling truck within their property, at a distance of 25 feet.
26. Applicants also provided credible testimony that th eir home occupation will not create any excessive or nuisance-level smoke, dust, noxiou s gases, air pollution, heat, cold, moisture, mist, fog, condensation, electromagnetic or electro nic disturbances, or vibrations at their property line. Further, Applicants assert that tra sh, waste oil, and waste antifreeze generated from the repair business will be safely stored on-s ite in either a 15-gallon container (primarily for antifreeze) or 55-gallon drums and properly dispose d of with the assistance of the Addison County Solid Waste District.
27. Both parties provided credible evidence of the scen ic nature of their neighborhood. Many residents and others use Roscoe Road for walki ng and biking. The existing truck and other vehicular traffic do not appear to cause a ma terial impediment to the use and enjoyment of
Roscoe Road for these bikers and walkers.
28. Appellants reside at 1154 Roscoe Road, which is acr oss the road and southwesterly from Applicants’ property. Appellants’ home is orientat ed away from Applicants’ property; Applicants’ home is somewhat obscured from Appellan ts’ home, due to a hedge row on Appellants’ property and the lay of the land. Ther e is no doubt, however, that some portion of Applicants’ property could be seen from some vantag e point on Appellants’ property. From the evidence presented, it remained uncertain whether t he existing temporary garage or the Proposed Workshop could be seen from any point on Appellants ’ property. We have no doubt, however,7

that noises generated on Applicants’ property, incl uding noises associated with Applicants’ truck repair business, could be heard from some point on Appellants’ property.
29. Due to the easiest traveled way from Vermont Route 7 to Applicants’ property, the majority of delivery and to-be-repaired trucks trav elling to Applicants’ property will travel past Appellants’ property. Travel from the north on Ros coe Road is restricted, due to bridges with lower weight limits.
30. The parties’ neighborhood provides many examples of residences with multiple accessory dwellings. Most nearby accessory dwellin gs are used much like those existing or proposed for Applicants’ property: to board horses and other family animals, as well as to house home businesses or occupations.
31. Appellants’ own property includes a barn that is at tached to the principal dwelling. Just above Appellants’ property is a home property from which the owner runs an active scale production business, with multiple vehicle trips ge nerated per day, including delivery trucks. Other home-based businesses within the vicinity of the parties’ homes include the following:

• multiple auto repair businesses;

• body shop or auto painting business;

• a concrete contractor’s yard;

• storage businesses;

• an office for a home inspection business;

• a tire sales and repair business; and

• an excavation and law care contractor’s yard. Most, if not all of these properties include access ory structures, some of which house home-based businesses. Examples of these accessory structures are shown on Applicants’ Exhibits M through M-8 and W through W-13.

Discussion The issues remaining in this de novo appeal are relatively narrow. While the Court appreciates the depth and extensiveness to which bo th parties presented evidence, researched the legal issues, and proposed findings and legal concl usions, we will endeavor to limit our analysis to the legal issues remaining in this appeal. To t he extent that evidence or legal arguments offered by either party is not referenced in this D ecision, we have made the specific conclusion that they were outweighed by the facts and legal co nclusions recited here.8

I. Proposed Workshop as an Accessory Structure As we noted in our Interim Decision, the Regulation s define an allowable accessory structure as “[a] structure on a lot which is clear ly and customarily related and subordinate to the principal structure or use on that lot.” Regulatio ns § 10.2. The Regulations do not set an explicit limit on the size of the accessory structure; the T own has chosen through its Regulations to not limit Accessory Structures by the specific square o r cubic feet of the principle structure. Regulations § 3.6(A)(2) provides some additional gu idance by directing that “[a]n accessory structure or use must be clearly subordin ate in size, function, and overall appearance to the principal structure or use” and must conform to all requisite setback requirements. Again, the Regulations do not limit our analysis to a spec ific mathematical formula or direct comparison to the primary structure. Rather, we are directed to take a totality of the circumstances approach in our analysis. This approach leads us to the con clusion that the Proposed Workshop, when compared to the Sheldrick’s primary use of the prop erty, which is residential and associated animal care and raising, is a proper accessory stru cture under the Regulations. We are convinced in part of our analysis by visitin g a hypothetical alternative. If Applicants were intending to place the Proposed Wor kshop on a lot that had a single story ranchstyle home, within a neighborhood that only had sim ilar homes without accessory structures and home occupations, we might reach a different conclu sion. However, Applicants propose to introduce an accessory structure on a lot that has a multi-story residential building and a permitted temporary garage, in a neighborhood that has an abundance of accessory structures on residential properties, including multiple examples of accessory structures that are used in connection with home occupations. Given the totality of the circumstances test direct ed by Regulations §§ 3.6(A)(2) and 10.2, we conclude that the Proposed Workshop repres ents a structure that is “customarily related” to the primary use on the Sheldrick proper ty, particularly when viewed in context with the established neighborhood practice of home-based occupations on area residential properties. When viewed within the context of Applicants’ resid ential dwelling and the adjacent accessory structures that they use in connection with their r esidence, we conclude that the Proposed Workshop is subordinate, particularly in light of i ts proposed siting, such that it will be partially obscured by Applicants’ residence and existing pers onal garage.9

II. Proposed Workshop as a Home Occupation We left a final determination of whether Applicants ’ proposed use of the Workshop to house their truck repair business could be classifi ed as a Level I Home Occupation until after our determination on the admissibility of the Workshop as an allowable accessory structure. Interim Decision at 9–10. We came to this conclusion by no ting that it then appeared undisputed that Applicants’ business satisfied the other elements f or a Level I Home Occupation found in Regulations § 4.11(A)(1): that the home-based busi ness (a) would only employ dwelling residents; (b) would be conducted wholly within the proposed accessory structure; and (c) will generate no more than twelve business-related trips per day. Id . The evidence presented at trial
did not contradict these material facts.
When a home-based business satisfies the criteria f or a Level I Home Occupation, its continued use does not require a zoning permit. Id .; see also Regulations Table 2.5(B)(4). Given the absence of conflicting evidence, we agree with Applicants that their home-based truck repair business is a Level I Home Occupation and is not ot herwise prohibited by the Regulations.
III. Performance Standards for Home Occupation We must also determine whether Applicants’ Proposed Workshop conforms to the performance standards of Regulations § 3.12. We fi rst note a bit of a quandary, since the only application before us is the construction of the Pr oposed Workshop. No use application has been ruled on below and it would thus be improper for th is Court to rule on such an application in the first instance on appeal. In re Torres , 154 Vt. 233, 236 (1990). The language of Regulat ions § 3.12(A) makes clear that these performance standa rds relate solely to the “use” of a property. We also note that the verbiage of § 3.12(A) could b e read, as Applicants suggest, to be enforcement-related conditions and not standards up on which an application is to be judged. We decline to adopt that assessment, since the standar ds established by § 3.12(A) provide a limitation upon the uses that are allowed “in all d istricts.” Id . Further, § 3.12(A) places “the burden of proof . . . [upon] the applicant.” However, because the Proposed Workshop construction is so intertwined with its use, and because of the extensive presentation of facts and legal analysis the parties have offered, we provide the following assessment of the Proposed Wo rkshop’s conformance to the § 3.12(A) performance standards.10

First, we note that conformance to many of the perf ormance standards are not in dispute. Applicants represent that their Workshop or its use as a truck repair home occupation will not generate, at their property line, clearly apparent levels of vibration, smoke, dust, noxious gases or other forms of air pollution, detrimental heat, col d moisture, mist, fog or condensation, electromagnetic or electronic disturbances, glare, lumen, light or reflection, liquid or solid waste
or refuse that will cause an undue burden on munici pal or public disposal facilities, or undue fire, safety, explosive, radioactive emission, or other h azards. Thus, the evidence presented allows us to render positive findings as the performance stan dards articulated in §§ 3.12(A)(2) through (8). The sole remaining performance standard to address is noise; specifically whether the addition of the Proposed Workshop will “cause or re sult in . . . noise in excess of 70 decibels, or which represents a significant increase in noise le vels in the vicinity of the use so as to be incompatible with the surrounding area.” Regulatio ns §§ 3.12(A) and 3.12(A)(1). Mr. Sheldrick provided credible evidence that his existing truck repair business does not produce noise in excess of 70 decibels at their property line. Movi ng all his equipment and the trucks he works on into a new, fully insulated Workshop, with fully in sulated doors and a re-piped compressor can only diminish the noise levels experienced in the v icinity of Applicants’ property. We further note that the surrounding neighborhood already gene rates a consistent number of delivery trucks, including FedEx, UPS, and oil and gas delivery truc ks. We also have the benefit of the neighborhood experiencing a form of Mr. Sheldrick’s truck repair business. While we found credible Appellant’s testimony as to what he experi enced in the way of neighborhood truck noise, we note that several more of Applicants’ nei ghbors came forward to provide credible testimony that Mr. Sheldrick’s operation of his hom e-based truck repair business did not result in a noticeable or significant increase in noise level s in their neighborhood. For all these reasons, we conclude that the Proposed Workshop and its use, if constructed and operated as represented, will conform to Regulations § 3.12(A)(1).

Conclusion For all the reasons more fully discussed above, we hereby GRANT Applicants’ request for a zoning permit to allow for the construction o f their Proposed Workshop, subject to the following conditions:
1. Applicants shall submit final drawings of the Propo sed Workshop, demonstrating that it will resemble the horse barn on their property, will include insulated doors, and will not contain exter ior lighting; and11

2. Applicants may use their Proposed Workshop for the purpose of conducting a Home Occupation, Level I, provided such use complie s with the existing Performance Standards, as set out in Regulations § 3.12, and the limitations on employees, vehicle trips, and restriction on out side work and outside storage of vehicles, supplies and equipment, as con tained in Regulations § 4.11. Further use conditions, including those im posed upon all Level I Home Occupations, are as follows:
a) The large overhead doors shall be insulated, and th ey shall be closed anytime that power tools are being operated at the Proposed Workshop. b) The entire Proposed Workshop shall be insulated, an d the air compressor intake shall be piped so that air is drawn from the rafter area. c) Applicants shall site the Proposed Workshop below t he grade of the existing exterior grade of their house and set back from the front of their existing garage. d) All disabled trucks of customers shall be stored an d worked on inside the Proposed Workshop, not in the driveway or anywhere else on the premises. e) No exterior lighting may be installed on the Propos ed Workshop. f) No other employees may work at the Proposed Worksho p. Accordingly, we specifically DENY Appellants’ appeal of the zoning permit first issue d by the Town of Charlotte Zoning Administrator and l ater upheld by the Charlotte ZBA.
This matter is remanded back to the Charlotte Zonin g Administrator solely for the purpose of completing the ministerial act of issuin g a revised Zoning Permit in conformance with this Merits Decision and the accompanying Judgment Order. This concludes the proceedings before this Court in this appeal. 5

Done at Newfane, Vermont, this 23rd day of April 20 09.

______________________________________ Thomas S. Durkin, Environmental Judge

5 As noted in a separate Entry Order issued on April 1, 2009, in light of our ruling in this Merits Dec ision, Applicants’ recent post-trial motion is now moot. Given that we have found that Applicants’ permit ap plication should be granted even under the Regulations that w ere in effect at the time Applicants submitted thei r application, we need not address the legal issue of whether an a pplicant has the right to elect to have an applicat ion evaluated under bylaws that were enacted after the close of a trial and before the court has issued its decision

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