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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 Mat ter of Law

Appellants appealed from a decision of the Zoning B oard of Adjustment (ZBA) of the Town of Wilmington granting a conditional use permi t amendment to Appellee-Applicant Green Meadow Center, LLC . Appellants are represent ed 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 ju dgment as a matter of law. The following facts are undisputed unless otherwise noted. The property at issue is a forty acre parcel of lan d containing a dairy farmstead with buildings constructed from 1885 through some time i n the 1940s or 1950s. Whether all the buildings were constructed before the adoption of z oning 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 mo vies and square dances, and was operated as a ski lodge and a night club, but the d ates of these uses also have not been supplied. Without this information, and without th e 1968 version of the Zoning Ordinance, the Court cannot determine whether the use of the p roperty or the location of the buildings or number of buildings qualified as pre-existing, n on-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 A Special Use 1 @ permit as a A group service use:

1 The application requested a A special use @ permit and was on a form entitled

A application for special use or variance. @ Only in the ZBA = s record of its vote was the2

private school and day camp @ under ' 7(A)(1), (4), and (9) of the Wilmington Zoning Ordinance. The parties have not supplied the versi on of the Zoning Ordinance in effect in 1971, from which the Court could determine the natu re of a A special use @ permit. It appears that the A special use @ permit may have been distinct from a A variance, @ and may have been the equivalent of a conditional use permi t, 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 n ew septic system, received additional permits and were built between 1971 and 1985. The property was operated as a school from 1971 thr ough some time in approximately the summer of 1997, first by the Pali sades 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-a cre parcel of land was sold by the owner to Appellants Tierney and Scott in December 1 997. 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 ordin ance does not provide for an

increased setback for commercial uses in a resident ial district, although such requirements may be imposed as conditions in a conditional use p ermit.

application referred to as a A variance. @ A conditional use permit was issued on July 13, 199 8 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. Conditio ns of the permit included a requirement that only the Phoenix building (also kn own as the > large barn = ) was approved, and only for the five uses then proposed by Appelle e-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 p ermit would require > further application to3

the Board. = The 1998 Conditional Use Permit expired by its term s one year from the date of issue, but also provided that a request for extensi on could be made before the expiration date and would become part of the permit upon appro val by the Board. As no appeal was filed of the 1998 Condition Use Permit, including n o appeal of its extension provision, that permit became final and neither it nor its extensio n provision can now be challenged, even if such an extension provision was unauthorized whe n 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 tim e for which the extension was granted. The project therefore holds the 1998 Conditional Us e permit and is entitled to undertake the project according to that permit, reg ardless of the status of the 1999 Amendment at issue in the present appeal, and regar dless of whether the uses authorized by that permit should have been allowed in the dist rict. On July 8, 1999, still before the original expirati on 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 cl inic, 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 outdoo r play area. This permit was granted and is here on appeal. Appellants argue that the project is not a use elig ible for a conditional use permit and that several of the proposed uses are not thems elves allowed as conditional uses in

the Residential districts.

The Zoning Ordinance defines A group service @ as A a service which is customarily performed or provided for a number of persons at th e 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 A group services uses @ as A any use of land or buildings for the4

purpose of providing, performing or selling a group service. @ Reading these definitions together, it is apparent that a group service may b e provided on either a for-profit or a nonprofit basis. Wilmington has only two zoning districts: Residenti al and Commercial. In the Residential districts, only agriculture, single and double family dwellings, home occupations, and accessory uses are allowed as perm itted uses. Conditional uses allowed in the Residential districts are professional offic es, motels and other lodging establishments, and accessory uses. Conditional use s allowed in either district include multiple family dwellings, cluster housing, childre n = 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 Ar e: 1. Group service uses. (a) Churches, parish houses and community or frater nal

structures. (b) Golf courses, tennis courts, water impoundments , swimming pools and similar recreational, participating athle tic facilities, even though operated commercially. If all group service uses were allowed as condition al uses in either district, it would have been unnecessary for the ordinance to have spe cified these two subcategories of group service uses. Because they were specified, t he 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, whi le subcategory (b) specifically allows commercially operated recreational facilities. Th erefore the proposed amendment does not fall within the specified subcategories. However, it appears from the history of this facili ty 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-confo rming 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 amendm ent to the permit. Accordingly, if5

the requisite material facts can be established for the project to fall within this category of the Ordinance, we will proceed to consider the prop osed 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 leas t as to the character of the area and as to traffic; that approval should not have been gran ted without a condition establishing the entity responsible for owning or managing the proje ct, and that setbacks greater than those required in the residential zone should have been i mposed as a condition. Those issues will be addressed after evidence is presented in th e 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 re maining issues require an evidentiary hearing. The court will hold a telephone conferenc e on December 7, 2000 to determine the scheduling of such a hearing, any further disco very, and any additional motions.

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

_________________________________________________ Merideth Wright Environmental Judge