1 

 STATE OF VERMONT 

 ENVIRONMENTAL COURT 

} 

In re Appeals of } 

 Gilles Moreau, d/b/a } Docket Nos.32-3-99 Vtec

M&M Beverage, Inc. and } and 229-11-99 Vtec 

GVA Corp., d/b/a Discount Beverage } 

} 

 Decision and Order on Motions for Summary Judgment

Appellant Gilles Moreau appealed from a decision of the Development Review 

Board (DRB) of the Town of Brattleboro, denying his application for a conditional use 

permit. Appellant is represented by Richard D. Perra, Esq.; the Town of Brattleboro is 

represented by Robert M. Fisher, Esq. The parties have cross-moved for summary 

judgment. 

Appellant applied for a conditional use permit to install a 15,000 gallon underground 

fuel tank, three fuel pumps, a 24' by 28' canopy and related signage, on property in the 

Suburban Commercial zoning district. The property already contained an existing discount 

beverage store and its associated parking and storage shed. The cover letter stated that 

the application was submitted under the conditional use category of ARoad ServiceAutomobile Repair Garage.@ The Zoning Administrator denied the application on the basis 

that the proposed use constituted an AAutomobile Service Station,@ which he determined is 

not a permitted or conditional use within the Suburban Commercial zoning district. The 

Development Review Board upheld Zoning Administrator=s denial; the appeal of that 

decision is Docket No. 32-3-99 Vtec. 

Appellant then sought conditional use approval pursuant to ''2322 and 5200 of the 

Zoning Ordinance, which delineate the procedures for obtaining approval for uses not 

otherwise provided for in the Ordinance. The DRB denied this application on the basis that 

the proposed use is provided for as a conditional use in the Commercial zoning district and 

therefore does not qualify for consideration as a Ause not provided for@ under ''2322 and 
2 

5210; the appeal of that decision is Docket No. 229-11-99 Vtec. 

The problem presented by these appeals arises from the fact that the potentiallyapplicable use categories defined in '6100 of the Zoning Ordinance overlap with but are 

not the same as the terms used in the lists and chart of permitted and conditional uses in 

the zoning ordinance. 

The use category AAutomobile Service Station@ is defined as ALand or structures 

used for the sale of petroleum products, motor fuel, oil or other fuel for the propulsion of 

motor vehicles, which may include facilities for lubricating, washing or servicing motor 

vehicles. A service station is not a sales or repair agency for any type of motor vehicle.@ 

An automobile service station must sell fuel and can also lubricate, wash or service 

vehicles, but cannot repair or paint them. The use category AGasoline Station@ is included 

in this category and is merely defined by reference as ASee Automobile Service Station.@

The use category AAutomobile Service Station and Repair Garage@ is defined as 

ALand or structures used for the sale of petroleum products, motor fuel, oil or other fuel for 

propulsion of motor vehicles, which may include facilities for lubricating, washing or 

servicing motor vehicles, and the maintenance, servicing, repairing or painting of vehicles.@

An >automobile service station and repair garage= must sell fuel and can also perform all 

the services of a repair garage, including repairing or painting vehicles. 

The use category ARepair Garage@ is defined as AAny building, premises and/or land 

in which or upon which a business, service or industry involving the maintenance, servicing, 

repair or painting of vehicles is conducted or rendered.@ A repair garage can repair and 

paint vehicles, as well as lubricate, wash, maintain and service them, but cannot sell fuel. 

The term ARepair Garage@ is not modified in the definition by the word AAutomotive@ or 

AAutomobile.@

The term AAutomotive1 Services@ is not defined in '6100, but it is used in the text of 

the ordinance and the chart of uses to cover all three categories: AAutomobile Service 

 

1

 From the context of the ordinance, we will treat the words Aautomobile,@

Aautomotive@ and Aauto@ as equivalent in the use category titles, although it would be far 

better practice for the ordinance to use the defined terms in the regulation itself. 
3 

Station,@ ARepair Garage,@ and AAutomobile Service Station and Repair Garage.@ It is not a 

redundant term, because it allows any of the three uses and can be used in place of listing 

all three. 

In the text of the ordinance, of the automotive types of uses only AAutomotive Repair 

Garage@ is allowed as a conditional use in the Suburban Commercial zoning district. In the 

Commercial District AAutomotive Services@ and AAuto Service Station and Repair Garage@

are allowed as permitted uses. In the Commercial Industrial district none of these 

automotive uses is provided for. In the Industrial district only ARepair Garage@ is allowed as 

a conditional use. 

However, the Chart of Uses found as Appendix A to the Zoning Ordinance shows AAuto 

Service Station and Repair Garage@ as a conditional use in the Suburban Commercial 

zoning district. 

Appellant=s proposal falls within the categories: AAutomobile Service Station@ and 

AAutomobile Service Station and Repair Garage.@ Because fuel will be sold, it does not fall 

within the category ARepair Garage.@

Docket No. 229-11-99 Vtec

Appellant argues that he is entitled to apply for approval under ''2322 and 5200 of 

the Zoning Ordinance, which set forth a procedure the requirements for permits for uses 

not otherwise provided for (in the Zoning Ordinance). In order to apply under those 

sections, the proposed use must not be specified in the ordinance as either a permitted or 

a conditional use in any zoning district, and must not be listed as a prohibited use. 

However, the proposed use falls within two defined categories: AAutomobile Service 

Station@ and AAutomobile Service Station and Repair Garage.@ It is allowed as a permitted 

use in at least the Commercial zoning district. Therefore, ''5200 and 2322 do not apply. 

Accordingly, based on the foregoing, in Docket No. 229-11-99 Vtec the Town=s 

Motion for Summary Judgment is GRANTED and Appellant=s Motion for Summary 

Judgment is DENIED, concluding this appeal in favor of the Town. Appellant does not 

qualify to apply under ''5200 and 2322 of the ordinance, as the proposal is at least a 

permitted use in the Commercial District. 
4 

Docket No. 32-3-99 Vtec

However, the Zoning Ordinance contains the following ambiguity or conflicting 

provisions applicable to Appellant=s proposed project. In '2349, the use category 

AAutomobile Repair Garage@ is listed as a conditional use in the Suburban Commercial 

zoning district, but neither of the fuel service categories: AAutomobile Service Station@ or 

AAutomobile Service Station and Repair Garage@ is listed as either a permitted or a 

conditional use. On the other hand, in the Chart of Uses contained in Appendix A of the 

Zoning Ordinance, the use category AAuto Service Station and Repair Garage@ is listed as 

a conditional use in the Suburban Commercial District. In the Chart of Uses, ARepair 

Garage@ does not appear as a conditional use in the Suburban Commercial zoning district 

at all; it only appears as an allowed use in the Industrial zoning district. 

This ambiguity must be resolved in favor of the property owner, to allow Appellant to 

apply for the proposed project as a conditional use in the Suburban Commercial zoning 

district, most importantly because the use category AAuto Service Station and Repair 

Garage@ is listed in the Chart of Uses as a conditional use in the Suburban Commercial 

district. Further ambiguity is inherent in the apparent distinction made in the Zoning 

Ordinance between ARepair Garage@ listed as a conditional use only for the Industrial 

district, and AAutomobile Repair Garage@ listed as a conditional use for the Suburban 

Commercial district. 

The Supreme Court has consistently held that because zoning ordinances are in 

derogation of common law property rights, in construing zoning and other land use 

regulations any uncertainty must be decided in favor of the property owner.@ In re Appeal 

of Miserocchi, Docket No. 99-166 (Vt. Supreme Ct., January 28, 2000); In re Appeal of 

Weeks, 167 Vt. 551, 555-56 (1998). 

Accordingly, based on the foregoing, in Docket No.32-3-99 Vtec, Appellant=s Motion 

for Summary Judgment is GRANTED and the Town=s Motion for Summary Judgment is 

DENIED. Appellant is entitled to apply for approval of the proposed project as a 

conditional use in the Suburban Commercial district. This matter is concluded in this Court 

and Appellant=s application is remanded to the DRB for consideration under the conditional 
5 

use criteria. 

Done at Barre, Vermont, this 27th day of June, 2000. 

_________________________________________________ 

Merideth Wright 

Environmental Judge