1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re King Garage Construction Permit } Docket No. 202-9-08 Vtec (Appeal of Hardacre) } (Appeal from Winooski DRB) }
Decision on Pending Motions
This appeal concerns an application by Anne Marie K ing for a permit to construct a garage to replace the existing garage attached to h er pre-existing single family home located in a heavily settled residential development in Winooski . When the City of Winooski Zoning Administrator issued a construction permit for the proposed replacement garage, Ms. King’s neighbor, Rita Hardacre, had several concerns and t herefore appealed the issuance of the King construction permit to the City of Winooski Develop ment Review Board (“DRB”). A number of area residents appeared before the DRB to express c oncerns similar to those of Ms. Hardacre.
When the DRB affirmed the issuance of the construct ion permit, Ms. Hardacre filed a timely appeal with this Court. Ms. Hardacre (“Neighbor”) is assisted in these proc eedings by Jon T. Anderson, Esq., and David W. Rugh, Esq. Ms. King (“Applicant”) is assisted in these proceedings by Vincent A. Paradis, Esq. Fifty-four area residents 1 have also appeared before this Court as Interested Persons, all of who have chosen to represent themse lves. Of those residents, only Donald R. Brunelle has submitted a filing to the Court concer ning the pending pre-trial requests. 2 Now pending before the Court are cross-motions for summary judgment. Applicant asserts that the only legal issue properly before t his Court is a question of conformance with the applicable setback requirements. Applicant contend s that her proposed replacement garage

1 The area residents who have filed notice of their intent to participate in this appeal as Interested Persons are Normand J. Shaw, Robert R. Bagley, Catherine Smith, James T. Brown, Leonard St. Gelais, Darlene M. Are l, Elmer C. Arel Sr., Sandra Croisetiere, George Lemnah, Gla dys Lemnah, Jean Hardacre-Fergus, Judy A. Fredette, Cecile Brunelle, Ray Brunelle, Claudette Lavalley, Michael Lavalley, Maureen Companion, Florence M. Saucier, Laurie Leigh Bresnahan, Dorothy H. Gruzeski, Joseph Gruzes ki, John Galle, Josephine D. Galle, Mary Galle, Don ald R. Brunelle, Elveta Brunelle, George Olgyay, Maria Olg yay, Nancy E. Montague, Nancy O'Grady, Victor Tirri to, Debra Tirrito, Roger Greenough, Robert Martin, Roge r Rollins, Laurie C. Cantus, C. D. Eddy, Penelope J . Harman, William Harman, Diane Desautels, Elijah Phillips, K ari Phillips, Charlotte Companion, Sue Breen, Paul A. Brodeur, Pauline R. Brodeur, Normand J. Poirier, Coralyn Poi rier, Jeanne Dube, Pamela Hatin-Eudy, Barbara S. Ha tin, Jacqueline Rabidoux, Leo Bresnahan, and Gerald Eddy

. 2 Mr. Brunelle notes after his signature on his Jan uary 14, 2009 filing that it is submitted “[o]n beh alf of the interested parties of record.”2

conforms to the applicable setback requirements and that she is therefore entitled to the requested construction permit as a matter of law. Neighbor a grees that conformance with the applicable setback requirements is at issue in this appeal, bu t contends that the proper interpretation of the applicable setback requirements renders the propose d garage incapable of conformance and that she is therefore entitled to judgment as a matter o f law. Neighbor also asserts that to construct and use the proposed garage (in the manner that Nei ghbor understands Applicant intends to do) requires additional approvals, including conditiona l use approval and confirmation that the intended use is an allowable home occupation. The legal issues posed by both primary parties incorporate all five Questions presented to the Cou rt in Neighbor’s Statement of Questions. The primary parties have thoroughly researched and briefed the legal issues that this appeal presents to the Court. They have also submi tted Statements of Undisputed Material Facts, as is required by V.R.C.P. 56(c)(2). While each pa rty submitted a further statement, identifying the disputes they have with the material facts sugg ested by the other party, it appears to the Court
that no facts that are material to our resolution o f all legal issues properly before us are, in fact, disputed. Rather, the parties have several sincere disagreements about how the applicable law, including local zoning ordinance provisions, should be applied to the undisputed facts. We therefore first recite the undisputed material fact s as we understand them and thereafter discuss the proper application of the applicable law and le gal precedent to the legal issues that we have the jurisdictional authority to address. Background Facts For the sole purpose of putting the pending motions in context, we recite the following material facts, which we understand to be undispute d unless otherwise noted:
1. Applicant owns property located at 70 Bernard Stree t in Winooski which is currently improved with a single-family residence, including a garage attached to the residence. The property was originally known as Lot 28 in the form er Dion Brothers subdivision, circa 1957.
2. The subject property is located in the Residential, Low Density Zoning District (“R-1 District”).
3. Applicant wishes to replace her existing garage wit h a larger garage. Both the existing and proposed garages are depicted on the sketch att ached to Applicant’s Zoning Permit Application (“Application”), a copy of which Applic ant submitted as Exhibit 3. We have attached to this Decision a copy of the portion of the Application that contains Applicant’s3

sketch of the site. We make this attachment solely for illustrative purposes. The record does not reveal that this sketch is to scale and, if so, wha t scale.
4. The existing garage measures 20 feet long by 24 fee t wide, thereby consisting of 480 square feet. The proposed garage would measure 30 feet long by 32 feet wide, thereby consisting of 960 square feet.
5. Both the existing and proposed garages are one stor y tall, with a peaked roof parallel to the peak of the single-story, ranch-style residence . The existing garage at its peak is 19 feet tall; the proposed garage at its peak will be 21 feet tal l.
6. Applicant’s property is located at the corner of Be rnard Street and Gail Street; the property consists of approximately 100 feet of road frontage on each street. The junction of these two streets creates an interior angle of abou t 100°.
7. Applicant’s existing home and garage are not quite parallel to either street. Applicant’s estimate that the residence sits at about a 15° ang le to Bernard Street has not been disputed by any other party to this proceeding.
8. The front of Applicant’s residence, which includes the front door, faces Bernard Street. The driveway serving Applicant’s residence, leading from Applicant’s garage, is accessed from Gail Street. The Gail Street driveway serves as th e sole vehicular access for the property.
9. Both Bernard Street and Gail Street are public high ways located in rights of way, as depicted on the site plan for the original developm ent, a portion of which Applicant photocopied and filed as Exhibit 1 in support of her summary ju dgment motion. Applicant’s property is
identified on Exhibit 1 as Lot 28.
10. Applicant located the concrete monument and metal p ins that delineated the boundary lines of her developable land and the extremities o f the 50-foot right of way in which each public street lies. The northeast corner of Applicant’s p roposed garage will be the closest structure point to both Bernard Street and to Gail Street. A pplicant measured this corner as being 22 feet from Bernard Street and 15 feet, 10 inches from Gai l Street. Applicant submitted several photos (Exhibits 10–13) depicting his measurements. No pa rty has refuted these measurements.
11. Applicant has represented that the proposed garage will be used solely “for the personal motor vehicles belonging to the residents of 70 Ber nard Street.” Applicant’s Statement of Undisputed Facts at ¶ 6.4

12. Neighbor and other nearby residents are concerned t hat Applicant will put the proposed garage to additional uses, including for the instal lation of a vehicle lift mechanism commonly used in commercial garages, as a business office, a nd for repair and storage of automobiles slated for repair or competitive racing.
13. Some of Neighbor’s concerns are premised, at least in part, on statements that Applicant or her fiancé, the owner of RC Motorsports, have ma de when discussing the proposed garage with their neighbors. Neither Applicant nor her fi ancé have refuted that they made such out-ofcourt statements. 14. Applicant submitted her complete application for th e construction of the proposed garage on July 1, 2008. The Zoning Administrator determin ed that the construction application conformed to all applicable provisions of the City of Winooski Zoning Ordinance (“Ordinance”) and thereafter issued Revised Zoning Permit (#BN070 ) (“Revised Permit”), which was scheduled to become final on July 17, 2008. Applic ant submitted a copy of Permit #BN070 as Exhibit 5 in support of her summary judgment motion

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15. Neighbor filed a timely appeal of the Revised Permi t to the DRB, which conducted a hearing on Neighbor’s appeal on September 4, 2008. The DRB took testimony and received exhibits both for and in opposition to the pending permit application. The DRB thereafter rendered findings and a decision, in which the DRB announced its conclusion that the proposed garage “meets setback, building height and floor ar ea ratio requirements of the Winooski Zoning Ordinance.” The DRB sustained the Zoning Administr ator’s issuance of the Revised Permit and denied Neighbor’s appeal. It is from that determin ation that Neighbor appealed to this Court.

Discussion Summary judgment is only appropriate when the Court determines “that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law.” V.R.C.P. 56(c)(3). When both parties move for sum mary judgment, as is the case here, each motion is to be analyzed while giving the oppo sing party the benefit of all reasonable doubts and inferences. Alpine Haven Prop. Owners A ss’n, Inc. v. Deptula , 2003 VT 51, ¶ 8, 175

3 The Zoning Administrator first issued a “Pending” Zoning Permit that incorrectly listed the proposed use as “MULTI-FAMILY DWELLING.” (See Exhibit 4.) The Rev ised Permit (Exhibit 5) lists the new garage’s prop osed use as “SINGLE FAMILY DWELLING.” We understand thi s to mean that the proposed garage would be part of the single-family structure on the property to whic h it is attached and that the garage’s authorized u se was solely in connection with its integrated single-family dwelli ng.5

Vt. 559. In determining whether a dispute over a m aterial fact exists, a court must accept as true all material allegations made by the opposing party , “so long as they are supported by affidavits or other evidentiary material.” White v. Quechee L akes Landowners’ Ass’n , 170 Vt. 25, 28 (1999) (citing Chapman v. Sparta , 167 Vt. 157, 159 (1997)). In our analysis below, we have attempted to view all material facts in such a mann er. As noted above, it appears from the record before us that while the parties have a sincere dis pute as to the proper application of the applicable law to the facts of this case, they do n ot dispute the facts the Court has deemed material, all of which are listed above. We theref ore next address the parties’ legal disputes, to the extent that the jurisdictional limits of this a ppeal allow us to do so. Neighbor has listed five Questions for our review i n her Statement of Questions. We summarize those Questions as follows:
1. Does the proposed garage comply with the applicable setback requirements?
2. Is the suggested use or the proposed garage itself a lawful accessory use or structure?
3. Does the proposed garage comply with the conditiona l use approval requirements?
4. Does the proposed garage satisfy the applicable sta ndards for a lawful home occupation? 5. Should conditions be placed upon the use of the pro posed garage? We review each Question below.
Question 1: Setback Requirements Applicant’s parcel, being somewhat trapezoidal and located at the intersection of two streets, requires greater analysis than is usually required when setback compliance questions arise, as noted by one authoritative treatise on la nd use: “Setback and yard restrictions present special problems when the lots to which they apply are not the common, rectangular plots with one side, usually the smaller dimension, fronting o n a street. Corner lots, for example, may pose a special problem . . . .” American Law of Zoning § 9:61, at 9-197 (5th ed. 2008). In light of this challenge, we first start with a review of the uncontested legal issues relating to setbacks. When new development projects are presented for pro perties in the R-1 District, the project applicants must present evidence that their development proposal will respect a 20 foot front yard setback and a 15 foot side and rear yard setback. Ordinance § 4.004. All of the6

parties appear to agree that the front of Applicant ’s residence generally faces Bernard Street and that, even at its closest point, the residence is m ore than 20 feet away from Bernard Street. Perhaps we should say that all parties agree that B ernard Street abuts a front of the King residence, since Neighbor asserts that the front ya rd setback requirement also governs the limits for construction in the portion of Applicant’s yard that abuts Gail Street. Our first point is to make clear that there is no dispute that the new ga rage as proposed satisfies the minimum
setback from Bernard Street. The central dispute in this appeal is which setback limit applies to Applicant’s yard to the west of her residence—the yard that abuts Gail Stre et. If the setback limit for side yards applies, then the proposed garage complies; if the setback l imit for front yards applies, then the application must fail. Commentators and courts have repeatedly noted that a municipality has the discretion to determine which setback limits should apply to whic h yards of a corner lot:

Some municipal ordinances undertake to provide rule s which govern corner lots. To firm up the regulation of the prob lem, some municipalities define “corner lot.” Some ordinances permit the owner of a corner lot to select which side constitutes the front, and which the side of h is lot. Under such an ordinance, an owner may not construct an entrance facing one s treet and arbitrarily name the other as the front of his lot. He is said to have selected when he constructed the entrance. American Law of Zoning § 9:61, at 9-197 (5th ed. 20 08). We are presented with a more intricate legal analys is in the case at bar, since Winooski has not chosen to specify which limits apply to whi ch yards of a corner lot. Rather, the Winooski Ordinance provides the following direction in defining a front yard: “That open space defined by the dimension between the nearest portio n of a principal building in a lot and the front property line of the lot.” Ordinance § 2.052 (defi ning “Yard, Front”). The Winooski Ordinance does not provide guidance on what should be regarde d as the “front property line” of a corner lot. Neighbor presents two skilled arguments in support of her position that the front yard setback should be applied to the yard that lies bet ween the northeast corner of the proposed garage and Gail Street. First, Neighbor argues tha t if indeed the front of Applicant’s residence fronts onto Bernard Street, and the northeast corne r of the proposed garage is indeed a part of the front of the residence (both of which are undispute d facts), then that corner represents a violation of the setback limit, since “setback” is defined in the Ordinance as the “distance between the7

nearest portion of a building projection on a lot a nd the right-of-way of the street or property line.” Ordinance § 2.044. To arrive at this inter pretation, one must measure from this “front” corner of the proposed garage, not across the front yard, but across the yard to the west, towards Gail Street. The definition Neighbor references fo r “setback” applies to all setbacks, be they front, side, or rear setbacks. Thus, Neighbor’s fi rst argument relies upon an assumption that the Winooski Ordinance provides notice to corner lot ow ners that a setback can be measure to any street (not merely the street from which the setbac k refers to) or—more generally—that their property may encompass more than one front yard. This assumption also serves as the basis for Neighb or’s second argument for why Applicant’s proposed garage fails as a matter of la w—namely, that the phrase “front property line” should be read in the plural context, thereby directing that corner lots have multiple front property lines. This second argument is based upon the directive in the Ordinance that “words in the singular number include the plural number,” Ord inance § 2.000, which reads in its entirety as
follows:

2.000 GENERAL MEANING OF TERMS Definitions contained in the Vermont Planning and D evelopment Act Title 24, Chapter 117, Sections 4303 and 4406 shall be ap plicable throughout these regulations. When not inconsistent with the contex t, words used in the present tense include the future, words in the plural numbe r include the singular number, [and] words in the singular number include the plur al number. The word “shall” is mandatory and not merely directory. The word “p erson” or “applicant” includes a firm, association, corporation, partners hip, company or other organization, as well as an individual. The word “ lot” includes the words parcel or plot.
The principal question that Neighbor’s two argument s presents is: does the Winooski Ordinance provide sufficient notice to an owner of a corner lot that the front-yard setback provision will apply to more than one yard of their property? We frame the question in this manner because of the well-settled general directiv e from our Supreme Court that since zoning regulations are in degradation of common law proper ty rights, when we are called upon to “‘constru[e] land use regulations any uncertainty m ust [therefore] be decided in favor of the property owner.’” In re Weeks , 167 Vt. 551, 555 (1998) (quoting In re Vitale , 151 Vt. 580, 584 (1989)). See also Glabach v. Sardelli , 132 Vt. 490, 494 (1974)(“[Z]oning ordinances are to be strictly construed in view of the fact that they ar e in degradation of common law property rights,8

. . . when exemptions appear in favor of the proper ty owner, the exemptions shall be construed in favor of the owner.”) overruled on other grounds by Leo’s Motors, Inc. v. Town of Manchester
, 158 Vt. 561 (1992).
We find no clear notice in the Winooski Ordinance t hat a corner lot owner’s use of her property will be limited by the application of the front-yard setback to two or more yards of her lot. We also have searched, and found no specific authority or precedent for the proposition that in the absence of a specific ordinance provision, a corner lot owner must respect a front yard setback for more than one yard on her corner lot. In the absence of a specific provision and prior precedent, we are left with the obligation to stric tly construe the Winooski Ordinance in favor of the corner lot owner. Given that the front of Appl icant’s residence is primarily orientated to Bernard Street, 4 and that the front door faces Bernard Street, we c onclude that the front-yard setback limit applies to the yard between the resid ence and Bernard Street, and the side-yard setback limit applies to the yard between the resid ence and Gail Street. These legal conclusions lead us to further conclude that Applicant is entitled to summary judgment as a matter of law on Appellant’s Question 1, since the indisputable facts are that Applicant’s residence lies more than 20 feet from B ernard Street and more than 15 feet from Gail
Street. 5 Thus, Applicant’s proposed replacement garage, if constructed within the confines of her site plan, conforms to the applicable setback l imits of Ordinance § 4.004 for the R-1 District,
Area A.
Question 2: The Proposed Garage as an Accessory Us e Site Neighbor next expresses her concern that the propos ed garage is either an unlawful accessory structure or that the use she believes it will be put to must first be reviewed under the conditional use or home occupation provisions of th e Winooski Ordinance. We note that

4 Neighbor asserts in her legal memoranda that Appl icant’s residence is actually orientated towards th e junction of Bernard and Gail Streets. No affidavit or other re presentation of fact in the record supports this as sertion. An undisputed fact presented by Applicant is that her residence aligns 15° off of her boundary line with Bernard Street. (See Exhibit 16, attached to Applicant’s Response a nd Opposition to Appellant’s Motion for Summary Jud gment.)
5 Neighbor also suggests that because Applicant’s m easurement to Gail Street was taken from the founda tion wall of her “house [and] because the house has eves of a t least a foot, possibly more, Appellee-Applicant’s measurements are likely incorrect.” (Appellant’s Response to Ap plicant’s Motion for Summary Judgment and Cross-Mot ion for Summary Judgment and Supporting Memorandum, at fn.4 .) Again, we decline to recognize this suggestion as a “fact,” since it has not been supported by affidavi t or documentary evidence. Such is required in the context of a trial court’s review of a summary judgment request. Gore v. Green Mountain Lakes, Inc. , 140 Vt. 136 (1981). Any encroachment into the side yard setback by the eave s or overhangs of the proposed garage is addressed in our discussion of Neighbor’s Question 5 and whether app ropriate conditions are warranted.9

Neighbor’s concerns appear legitimate, given her un -refuted statement that Applicant and her fiancé made representations to her and other area r esidents about their intention to conduct business, commercial, or other non-residential uses in their new garage. Such representations are unfortunate, not simply due to the concerns they ha ve caused the neighbors. They are also unfortunate because if Applicant intends to conduct such uses in her proposed garage, she has not made such representations in her application an d has not applied for authority to do so. In fact, Applicant has represented here that her only intended use for the proposed garage is “for the personal motor vehicles belonging to the residents of 70 Bernard Street.” Applicant’s Statement of Undisputed Facts at ¶ 6. Further, the Revised P ermit issued by the Zoning Administrator that is the subject of this appeal limits the use of the proposed garage as approved as part of a “single family dwelling.” We are a court of limited subject matter jurisdicti on. See 10 V.S.A. § 8503 (defining the jurisdiction of the Environmental Court). While li tigants, often without purposeful intent, present legal questions to this Court beyond its ju risdiction, we have consistently attempted to maintain the discipline of “respect[ing] our jurisd ictional limits.” A. Johnson Co. Cond. Use
Permit , No. 130-7-05 Vtec, slip op. at 5 (Vt. Envtl. Ct. Mar. 28, 2006) (Durkin, J.), aff’d , No. 2007-113 (Vt. Aug. 2007) (unpublished mem.). Any determination of our jurisdictional limits in a given appeal must begin with the application under review. See In re Torres , 154 Vt. 233, 235–36 (1990). Since this Court is “limited to consideration of the matters properly w arned as before the local board,” our jurisdiction is limited to the application put fort h for approval. In re Maple Tree Place , 156 Vt. 494, 499–500 (1991) (citing Torres , 154 Vt. at 235)). That application provides the initial limits to what approvals have been requested; if the appli cation is granted, an applicant is authorized to complete the construction as proposed, but no more than that. We therefore review the construction application and resulting Revised Perm it in the case at bar as providing the limits of what Applicant has requested and been authorized to do. We find no request in the pending application that would authorize what Neighbor fears: business activities, including commercial or compet itive auto repair, or other non-residential accessory uses in the proposed garage. We therefor e conclude that Applicant has not sought nor received authority to conduct such activities. We therefore decline to pass judgment upon a use that has not been proposed or authorized by the Per mit now before us on appeal.10

The portion of Neighbor’s legal memorandum devoted to her Question 2 suggests that the proposed garage is an accessory structure and that uses to be conducted in it require conditional use review and approval. No such applications have been made, and we cannot entertain them
here. See id .; Torres , 154 Vt. at 235–36. But we also have difficulty w ith the assertion that a garage attached to and made part of a residence, su ch as the proposed garage here, must be regarded as an “accessory structure.” In fact, nei ther the Ordinance provision nor the trial court precedent that Neighbor cites supports such a concl usion. Ordinance § 2.001, in its entirety, reads as follow s: 2.0010 Accessory Use, Accessory Structure : A use of a structure which is clearly incidental an d secondary to the principal building or use and located on the same l ot. This definition reinforces our common understanding of how most zoning ordinances define an accessory structure: as a separate, detac hed structure, which is subordinate to the principal structure on the same lot. The garage pr oposed here is not a separate, detached structure; it is wholly attached on one side and ma de a part of the residence. The combined home and garage, both existing and proposed, consti tute the only structure on Applicant’s lot. There is no accessory structure proposal before us in this Application. In Appeal of Ellen Janson , No. 199-12-97 Vtec (Vt. Envtl. Ct. June 22, 1998) (Wright, J.), the garage at issue was detached from the prin cipal structure on the lot. We have searched, but have not yet found, precedent where a garage th at is attached and part of a residential structure has been described as an accessory struct ure. We find no authority to do so in the
Winooski Ordinance. We decline to do so here. Therefore, we render the following response to Neig hbor’s Question 2: Applicant’s proposed garage is not an accessory structure and t here are no accessory uses proposed for it that require conditional use review or home occupation a pproval. We therefore conclude that Applicant is entitled to summary judgment as a matt er of law on Neighbor’s Question 2.
Questions 3 and 4: Satisfaction of the Conditional Use and Home Occupation Standards By her Questions 3 and 4, Neighbor challenges wheth er the proposed garage can satisfy
the conditional use standards contained in Ordinanc e § 4.003 and the home occupation standards contained in Ordinance § 8.700. We decline to addr ess those Questions because the pending application does not seek authority to conduct such uses.11

As discussed earlier, when an application has not f irst been noticed and reviewed by the appropriate municipal panel below, it is improper f or this Court to take up the permit questions in the first instance on appeal. In re Maple Tree Place , 156 Vt. at 500; Torres , 154 Vt. at 235–36. Interestingly, the Torres case presented a procedural quandary very similar to that which we have here. Mr. and Mrs. Torres appealed a home occupati on permit that their neighbors, the Gonyons, had received from the zoning board of adjustment. During the bench trial on the Torres’ appeal, the trial court determined that the Gonyons’ applic ation did not conform to the home occupation provisions of the zoning regulations. However, the trial court then allowed the Gonyons to convert their pending application into an applicati on for conditional use approval and thereafter approved their application, with conditions. The Supreme Court reversed the trial court, conclud ing that however well intentioned the trial court may have been, it did not have the auth ority to consider a land use application that had not been first noticed and heard before the municip al panel below. Torres , 154 Vt. at 235–36. The Supreme Court cautioned that “notice and hearin g requirements on [an] application to a zoning board are mandatory and jurisdictional, and failure to adhere to these requirements renders the action taken [by the trial court] null and void.” Id . at 236. By her Questions 3 and 4, Neighbor here asks us to consider legal questions that have not been noticed or heard by the appropriate municipal panel below. To consider such Questions requires us to ignore the Supreme Court’s directive in Torres , a precedent that has withstood nearly 20 years of review. We decline to consider the pending application within the context of the conditional use and home occupation standards o f the Winooski Ordinance, since no such review has been conducted by the appropriate munici pal panel in the first instance. The procedural suggestion Neighbor makes here is pe rhaps even more egregious than that
outlined in Torres , since Applicant is not suggesting that her pendin g garage be reviewed in such a manner. In fact, Applicant refutes that such rev iew is at all needed, since she represents that her only intended use for the proposed garage is as part of her pre-existing residence. Residential use of the one structure on Applicant’s property—a home and attached garage—is a permitted use and thereby is not required to obtain conditional use approval. Ordinance § 4.002. Since Applicant has not suggested nor applied for a pproval of a home occupation, no review of her application is warranted under Ordinance §§ 8.7 00 through 8.707.12

In conclusion, we respond to Neighbor’s Questions 3 and 4 by concluding that the pending application does not request nor warrant re view or approval under the conditional use or home occupation standards of the Winooski Ordinance . We therefore render summary judgment on both Questions in Applicant’s favor.
Question 5: Whether Reasonable Conditions Should Li mit the Proposed Garage’s Use Neighbor’s final Question appears to repeat the gen eral premise of her Question 3, in that she queries whether, “[g]iven the overwhelming sing le-family residential character of the neighborhood, should reasonable conditions be place d on the use of the proposed 32’ X 30’ garage to limit its height and to prevent excessive noise and traffic?” Such analysis is usually conducted in the process of a conditional use revie w pursuant to 24 V.S.A. § 4414(3). 6 As noted above, we decline to conduct conditional use review of Applicant’s proposed garage, since by her application, Applicant has agreed to limit her use of the replacement garage to only uses
associated with her residence. Neighbor’s last Question highlights another needed review of the pending application. It is apparent even from the limited record before us that some acrimony has been caused by the confusion and uncertainty surrounding Applicant’s i ntended use of this replacement garage. Her conversations with her neighbors and the conversati ons her fiancé has had as well have contributed to that confusion. This is regrettable and reinforces a maxim the undersigned learned from over twenty-four years of involvement in the l and use review process in Vermont: an applicant is best served by being forthright and cl ear in her representations to her neighbors when considering further development of adjoining p roperty. Many a hearing, including on substantial, multi-million dollar projects, have be en conducted in a calm, even boring fashion, because developers took the time well before a land use hearing to talk with area neighbors, summarize their plans in clear, concise language, a nd listen to the neighbors’ concerns, sometimes even responding with project changes to a ddress those neighbors’ concerns. Success is not guaranteed when one follows this process, an d on the limited record we have before us, we cannot determine whether Applicant had such convers ations with her neighbors. But such a

6 Ordinance § 4.003 governs conditional uses in Win ooski; it references 24 V.S.A. § 4407, which was th e predecessor section concerning conditional use revi ew and approval. It was converted to 24 V.S.A. § 4 414(3) by the Permit Reform Act of 2004.13

practice more often leads to a land use review proc ess that does not involve contested hearings, appeals, or other confusions. We are afforded all the powers and responsibilities as provided to the DRB in its review below of Applicant’s proposed garage. Torres , 154 Vt. at 235. Included in such power and responsibility is the discretion to attach “reasona ble conditions and safeguards as [the DRB in the first instance, and this Court on appeal] deems nec essary.” 24 V.S.A. § 4464(b)(2). We conclude that two conditions are necessary to memor ialize that the revised Permit first issued by the Zoning Administrator authorizes construction an d use of the garage as presented by Applicant, and we include those two conditions belo w and in the Judgment Order that accompanies this Decision. Pursuant to that statut ory authority, we answer Neighbor’s Question 5 in the affirmative and hereby craft the following necessary conditions: 1. The replacement garage shall be constructed in a ccordance with all of the representations made in the application, including the site plan, a copy of which is attached to this Judgment Order; 2. No portion of the replacement garage shall encro ach into the 20’ setback from Bernard Street, nor the 15’ setback from Gail street; and 3. The replacement garage shall only be used for th e personal motor vehicles belonging to the residents of 70 Bernard Street.
To the extent that Neighbor suggests that further e xamination and conditions are permissible within the context of this appeal, we reject that s uggestion.

Conclusion For all the reasons detailed above, we conclude tha t Mrs. King’s pending application for construction of a replacement garage, as conditione d above, conforms to all applicable provisions of the Winooski Zoning Ordinance. We he reby AFFIRM the issuance of Revised Permit #BN070 by the Winooski Zoning Administrator. We make our conclusions, even when viewing the material facts in a light most favorabl e to Neighbor Hardacre. Because we conclude that there are no material facts in dispute and tha t the pending garage construction application conforms to the applicable Ordinance provisions as a matter of law, we hereby GRANT Applicant summary judgment as to all of the Questio ns presented in Neighbor’s Statement of Questions. A Judgment Order accompanies this Decision. This c ompletes the current proceedings before this Court in this Appeal.14

Done at Newfane, Vermont, this 9th day of July 2009

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__________________________________________ Thomas S. Durkin, Environmental Judge