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 STATE OF VERMONT 

 ENVIRONMENTAL COURT 

} 

In re: Appeal of } 

 Michael Gilberg, Ellen Gilberg, } 

 Patricia Tierney, John Scott, } Docket No. 179-10-99 Vtec 

 Louis Beaudette and Cynthia Beaudette } 

} 

 Decision and Order on Motion for Judgment as a Matter of Law

Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the 

Town of Wilmington granting a conditional use permit amendment to Appellee-Applicant 

Green Meadow Center, LLC . Appellants are represented by Robin Stern, Esq.; AppelleeApplicant is represented by Richard D. Perra, Esq.; and the Town is represented by 

Richard M. Gale, Esq. Appellants have moved for judgment as a matter of law. 

The following facts are undisputed unless otherwise noted. 

The property at issue is a forty acre parcel of land containing a dairy farmstead with 

buildings constructed from 1885 through some time in the 1940s or 1950s. Whether all the 

buildings were constructed before the adoption of zoning in Wilmington in 1968 is a 

material fact not supplied by the parties in their materials, although it may not actually be 

disputed. The property was in use for community movies and square dances, and was 

operated as a ski lodge and a night club, but the dates of these uses also have not been 

supplied. Without this information, and without the 1968 version of the Zoning Ordinance, 

the Court cannot determine whether the use of the property or the location of the buildings 

or number of buildings qualified as pre-existing, non-conforming uses as of the date of 

adoption of the zoning ordinance. 

The property was acquired and renovated for use as a school in 1971 by the 

Palisades School, Inc., under a so-called ASpecial Use1

@ permit as a Agroup service use: 

 

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 The application requested a Aspecial use@ permit and was on a form entitled 

Aapplication for special use or variance.@ Only in the ZBA=s record of its vote was the 
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private school and day camp@ under '7(A)(1), (4), and (9) of the Wilmington Zoning 

Ordinance. The parties have not supplied the version of the Zoning Ordinance in effect in 

1971, from which the Court could determine the nature of a Aspecial use@ permit. It 

appears that the Aspecial use@ permit may have been distinct from a Avariance,@ and may 

have been the equivalent of a conditional use permit, but the Court cannot make that 

determination on the present evidence. The permit was not appealed and became final. 

Various improvements to the property, including a new septic system, received additional 

permits and were built between 1971 and 1985. 

The property was operated as a school from 1971 through some time in 

approximately the summer of 1997, first by the Palisades School, Inc., and from 1976 by 

Green Meadows School, Inc. The date of cessation of active use of the property as a 

school has not been provided to the Court. A ten-acre parcel of land was sold by the 

owner to Appellants Tierney and Scott in December 1997. The subdivision line for this sale 

placed three of the school buildings, respectively, 22 feet, 22 feet, and 24 feet from the 

property line. The side line setback is 20 feet in the Residential zoning district. Unlike 

some zoning ordinances, the Wilmington zoning ordinance does not provide for an 

increased setback for commercial uses in a residential district, although such requirements 

may be imposed as conditions in a conditional use permit. 

 

application referred to as a Avariance.@

A conditional use permit was issued on July 13, 1998 to the property owner, on 

behalf of Appellee-Applicant (the prospective buyer) for a change in use/conditional use 

permit to operate a >community center= on the property in lieu of the residential school. The 

permit was not appealed and became final. Conditions of the permit included a 

requirement that only the Phoenix building (also known as the >large barn=) was approved, 

and only for the five uses then proposed by Appellee-Applicant: 1) Day care and essential 

early education; 2) Dance classes; 3) Office space; 4) Two staff members providing 

>assistance to families with special needs=; and 5) Aerobics classes, each with specified 

hours. It provided that any modifications to the permit would require >further application to 
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the Board.=

The 1998 Conditional Use Permit expired by its terms one year from the date of 

issue, but also provided that a request for extension could be made before the expiration 

date and would become part of the permit upon approval by the Board. As no appeal was 

filed of the 1998 Condition Use Permit, including no appeal of its extension provision, that 

permit became final and neither it nor its extension provision can now be challenged, even 

if such an extension provision was unauthorized when adopted. 24 V.S.A. 4472. An 

extension was granted under that provision on June 21, 1999, without notice to adjoining 

property owners. The minutes of the June 21, 1999 action of the Board was not provided 

to the Court; we cannot determine the length of time for which the extension was granted. 

The project therefore holds the 1998 Conditional Use permit and is entitled to 

undertake the project according to that permit, regardless of the status of the 1999 

Amendment at issue in the present appeal, and regardless of whether the uses authorized 

by that permit should have been allowed in the district. 

On July 8, 1999, still before the original expiration date of the 1998 Conditional Use 

Permit, Appellee-Applicant applied for an amendment to the 1998 Conditional Use Permit, 

seeking to expand the uses to five other buildings, to expand the parking areas, and to 

expand the uses to include a once-a-week medical clinic, after school activities, a computer 

lab, a dining area/kitchen, a 6-unit senior citizen residence, a 6-bedroom dorm for program 

participants, agricultural activities and an outdoor play area. This permit was granted and 

is here on appeal. 

Appellants argue that the project is not a use eligible for a conditional use permit 

and that several of the proposed uses are not themselves allowed as conditional uses in 

the Residential districts. 

The Zoning Ordinance defines Agroup service@ as Aa service which is customarily 

performed or provided for a number of persons at the same time or which customarily 

involves the participation or presence of a number of persons as opposed, for example, to 

the customary services provided or performed on an individual basis by the doctor or 

repairman.@ It defines Agroup services uses@ as Aany use of land or buildings for the 
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purpose of providing, performing or selling a group service.@ Reading these definitions 

together, it is apparent that a group service may be provided on either a for-profit or a nonprofit basis. 

Wilmington has only two zoning districts: Residential and Commercial. In the 

Residential districts, only agriculture, single and double family dwellings, home 

occupations, and accessory uses are allowed as permitted uses. Conditional uses allowed 

in the Residential districts are professional offices, motels and other lodging 

establishments, and accessory uses. Conditional uses allowed in either district include 

multiple family dwellings, cluster housing, children=s camp, and dumps and junkyards, as 

well as the category at issue in the present case. That category is presented in the 

ordinance as follows: 

A. Conditional Uses Permitted in Either District Are: 

1. Group service uses. 

(a) Churches, parish houses and community or fraternal 

structures. 

(b) Golf courses, tennis courts, water impoundments, swimming 

pools and similar recreational, participating athletic facilities, 

even though operated commercially. 

If all group service uses were allowed as conditional uses in either district, it would 

have been unnecessary for the ordinance to have specified these two subcategories of 

group service uses. Because they were specified, the group service uses allowed in the 

Residential district as a conditional use are only those which fall into the two subcategories. 

 Subcategory (a) includes only non-profit uses, while subcategory (b) specifically allows 

commercially operated recreational facilities. Therefore the proposed amendment does 

not fall within the specified subcategories. 

However, it appears from the history of this facility that it was a pre-existing nonconforming use, operated under some sort of >special use= permit. Section 7(D) of the 

Zoning Ordinance allows a change from one non-conforming use to another, following the 

conditional use procedure. This may have been the underlying rationale for the 1998 

Conditional Use Permit, and would support an amendment to the permit. Accordingly, if 
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the requisite material facts can be established for the project to fall within this category of 

the Ordinance, we will proceed to consider the proposed amendments on their merits 

under '7(D). 

Material facts are in dispute as to Appellants= remaining arguments: that the project 

does not meet the conditional use standards at least as to the character of the area and as 

to traffic; that approval should not have been granted without a condition establishing the 

entity responsible for owning or managing the project, and that setbacks greater than those 

required in the residential zone should have been imposed as a condition. Those issues 

will be addressed after evidence is presented in the hearing on the merits. 

Accordingly, based on the foregoing, Appellants= Motion for Judgment as a Matter of 

Law is GRANTED as to the eligibility of the project within the '7(A)(1) subcategories of 

group service uses. It is otherwise DENIED; the remaining issues require an evidentiary 

hearing. The court will hold a telephone conference on December 7, 2000 to determine 

the scheduling of such a hearing, any further discovery, and any additional motions. 

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

_________________________________________________ 

Merideth Wright 

Environmental Judge