1

STATE OF VERMONT

ENVIRONMENTAL COURT
} Town of St. Albans, } Plaintiff, } } v. } Docket No. 109-7-99 Vtec } John E. McCracken and Marguerite A. McCracken, } Defendants. } }
} In re: Appeals of } John E. McCracken and Marguerite A. McCracken, } Docket Nos. 117-7-99 Vtec } and 129-7-99 Vtec }

Decision and Order

These three consolidated cases all involve a tracto r-trailer and truck service and repair facility operated on property owned by Defen dant-Appellants John E. McCracken and Marguerite (Peggy) A. McCracken, on Bronson Roa d in the Town of St. Albans. In Docket No. 109-7-99 Vtec, the Town took enforcement action against DefendantAppellants, asserting that they are operating a mot or vehicle and equipment sales and service business on their property without a permit . In Docket No. 117-7-99 Vtec, Defendant-Appellants appealed from the ZBA = s decision upholding the Notice of Violation
which formed the basis of that enforcement action. In Docket No. 129-7-99 Vtec, Defendant-Appellants appealed from a decision of th e Zoning Board of Adjustment (ZBA) of the Town of St. Albans, denying conditional use approval for the use. By docket entry dated September 9, 1999, the Court denied Appellant s = motion to stay the enforcement case, but ruled that the decision in the enforcemen t case will be rendered after the Court has decided the appeals, so that no penalty could b e imposed before Appellants = appeal
remedies are exhausted. Defendant-Appellants are represented by Paul S. Gil lies, Esq.; the Town is represented by David A. Barra, Esq.; neighbors Stev en and Theresa Shaw entered their2

appearance and represent themselves. An evidentiar y hearing was held in this matter before Merideth Wright, Environmental Judge. The p arties were given the opportunity to submit written requests for findings and memoranda of law. Upon consideration of the evidence and the written memoranda and proposed fin dings, the Court finds and
concludes as follows. Zoning bylaws have been in place in the Town of St. Albans since 1968. Under the 1968 Zoning Bylaws, the entire west side of Bronson Road was zoned Residential. A portion of the east side was zoned Industrial. Eff ective in January, 1984, both sides of Bronson Road were zoned Agricultural/Rural except f or a short portion of the east side of
the road near Lake Road which was zoned Residential . Effective in 1993, the west side
and much of the east side of Bronson Road was zoned Rural. A portion of the east side of the road near Lake Road was zoned Commercial, which may be an error in the zoning map compared to the zones adopted in the Zoning Bylaws, but even if it is in error, it does not
affect the west side of Bronson Road. Since 1974, Defendant-Appellants have owned an appr oximately one-acre lot on the west side of Bronson Road in the Rural zoning distr ict of the Town of St. Albans, containing a small house and an approximately 30' x 70' (descr ibed in the 1982 building permit application as 37' x 72') barn. The prior owner so ld snowmobiles from the barn, and may have repaired snowmobiles many years before the tra nsfer to Defendant-Appellants. From 1974 to 1982, Mr. McCracken only used the barn for car storage, as he was in cattle sales
business and the auto sales business with Ed White at another location. In 1982, Defendant-Appellants leased the property t o Ed White, who applied with Mr. McCracken for a building permit to establish an auto sales and auto body shop in the barn on the property. The permit application, alth ough difficult to read, describes the proposal as: A application to sell automobiles and auto body repai r doing business as Ed
White Auto Sales. @ The minutes of the June 10, 1982, meeting of the ZBA relating to this property reflect that the application was approved on the basis that the building had been
used for A car or other motor repair for many years, @ that is, that it was a pre-existing, nonconforming use as of the date of the zoning regulat ions in effect at that time. We do not here revisit whether the 1982 approval was properly issued. The ZBA imposed a condition that Mr. White would install water to the building within a year.3

From 1982 until some time within a year prior to th e summer of 1985, Mr. White operated a used car sales business at the property. He sold autos there, did body work and basic auto repairs. He did not install water t o the building as required by his permit approval. The Town adopted a new zoning bylaw in December 198 3, effective in January
1984. In July of 1985, Defendant-Appellants presented an application to continue the used car business on the property. The permit applicati on form describes the proposal as A want to use barn for used car sales. @ The application appears in the minutes of the Jul y meeting

as A request of John McCracken to use barn on west side of Bronson Road for used car
sales. @ At the July meeting the applicants stated that A the new operator of the proposed car lot would mainly clean cars and sell a few. @ In response to a question as to whether the barn would be used for repair work, Mrs. McCrac ken A replied that she did not believe

so. @ The July meeting was recessed to August for more information as to A the volume of business, number of used cars for sale, what [the] business will be, number of employees, [and] diagram for existing and proposed exiting and entrancing [sic]. @ At the August 8, 1985 meeting, Defendant-Appellants stated that they intended to

A operate the business as Ed White had only on a smal ler scale and only on their side of the

street. @ They stated that they plan to display approximate ly 20 cars at a time and that the operation would be a family business with one or tw o employees. Defendant-Appellants
did not correct Mrs. McCracken = s statement that the barn would not be used for rep air work, nor did they state the position that used car sales requires some mechanical work to assure that the cars are in operating condition whe n they are sold. In ruling on the application at the August 8, 1985 meeting, the ZBA stated its position that it was A without power to deny this request since [the prope rty] was used within one year as a used car lot, @ but that it had authority to impose conditions. T he permit to operate a used car lot was approved by the board at the August 8, 1985 meeting, with the following three conditions: that the existing drive way be closed and a new driveway shown on a site plan be opened; that no used car is to be displayed within 15 feet from the edge of the road; and that no more than 20 used cars be displayed at one time. Nothing in the minutes of either meeting suggests that used car re pair, or repair of any vehicle larger than4

a passenger vehicle, was occurring on the site, or that the permit was requested for any repair activities or for the presence of trucks or tractor-trailers on the site. Rather, the only mention of repair was Mrs. McCracken = s statement that she did not believe that the barn would be used for any repair work. Because the wat er system required by the 1982 permit had not been installed, however, the building permi t was not signed as approved by the Zoning Officer until more than a year later, on Dec ember 5, 1986 , the date that the water system was actually installed. In 1985 or 1986, Defendant-Appellants leased the pr operty to David Covillion, who ran a business known as Country Coach on the proper ty. He sold A a few @ cars, but mostly did body work and some repair 1 of automobiles. Mr. Covillion left the property a s of the end of September 1988. Mr. Steven Shaw has lived o n property adjacent to the site since April of 1986.

1 As no repair work was authorized by the 1985 perm it as a continued nonconforming use, any repair work done on the propert y as of and after the 1985 permit was potentially a violation. From October 1988 to some time in 1992, Mr. McCrack en continued to store automobiles, sports cars and boats in the barn, but continued to conduct his businesses at his other location. He and his employees went to t he barn location only once or twice a month. He sold cars from the barn occasionally, bu t no sign was displayed and no used cars were on display at the property. He and his employees worked on the vehicles from
his other businesses there on weekends once or twic e a month. The property was not plowed regularly in the winters. Thus, for a perio d of more than 18 months after September 1988, the use of the barn for body work, and the use of the property for used car display, for used car sales more than twice a m onth, and for commercial repair of vehicles, was discontinued. Under ' 320(c), regardless of Mr. McCracken = s intent to abandon it, the non-conforming use of the barn was largely abandoned. As of the end of March 1990, only the barn = s use for storage of automobiles and boats in conne ction with
Mr. McCracken = s other businesses, and the barn = s use up to twice a month for used car sales, remained an allowed non-conforming use under the 1985 permit. Minor repair work5

on the smaller vehicles used in Mr. McCracken = s other businesses also continued on a twice-a-month basis, but as repair was not authoriz ed under the 1985 permit, the twicemonthly repair work was not performed under the aut hority of the permit. Before the doors were enlarged and the ceiling was raised, the barn could only accommodate vehicles up to
the size of a one-ton truck. In 1992, Defendant-Appellants obtained a building p ermit to A gut, insulate and reside the barn. @ Mr. McCracken intended to widen the doors and rai se the interior ceilings to accommodate tractor-trailer and other larger tru cks, but did not state such use on the permit application. After the doors were widened a nd the ceiling raised, from 1992 to 1998, he and his employees performed basic maintena nce work, such as changing oil and changing tires, on a limited basis in the barn on t he vehicles used in his other businesses. The more major repairs of those vehicles were taken to a commercial truck repair shop.
Until the ZBA = s action on the 1998 permit application, Mr. McCrac ken believed he owned a

A commercial piece of property. @ In fact, the zoning designation of this property was never changed to Commercial. In May of 1998, Defendant-Appellants leased the pro perty to Herbert Bartemy, a milk hauler. Mr. Bartemy conducts a commercial bus iness for the repair and servicing of transport trucks, including tractor-trailer rigs. Work is done on Mr. Bartemy = s and those used in Defendant-Appellants = various off-site businesses, including Defendant-A ppellants = personal vehicles, livestock hauling vehicles, auto mobile transport vehicles, limousine, and
the automobiles offered for sale in the used car sa les business. He does not sell used cars from the property nor operate an auto body shop. In October of 1998, Mr. Bartemy applied for A conditional use approval for a commercial [use]- servicing of transport trucks. @ At the November 12, 1998 ZBA meeting, it was first presented as an application in the Com mercial District, but after a ZBA member questioned whether the property was in the Commerci al or the Rural district, the matter
was tabled for that determination to be made. Afte r discussion at the December 1998 and January 1999 meetings, the ZBA rejected the permit at the February 11, 1999 meeting on the basis that the property is not located in a com mercial zoning district. Under the current zoning bylaws and the zoning byl aws in effect in 1985 the use category A motor vehicle and equipment sales and service busin ess @ is neither a permitted6

nor a conditional use in the Rural (formerly the Ag ricultural/Rural) zoning district. Since at least 1985, the zoning bylaws have provided that a non-conforming use A shall not be reestablished after being abandoned or discontinued f or a period of 18 months, or after being changed to a conforming use, regardless of intent t o re-establish such prior use. @ ' 320(c). Neither the 1982 permit nor the 1985 permit authori zed an unlimited expansion of the use on the site within the use category A motor vehicle and equipment sales and service
business. @ Rather, those permits authorized a limited contin uation of a non-conforming use as provided in ' 320. Under ' 320(b) perhaps the ZBA should have applied the variance standard in 1982 and 1985; but even if tho se approvals were improperly granted they are valid. However, the 1982 and 1985 approva ls authorize only the type and extent of use applied for. The non-conforming use provis ions of the statute, 24 V.S.A. ' 4408, provide a balance between the landowner = s right to continue a pre-existing use of the land, and the public interest in regulating those uses as evinced by the properly-adopted zoning ordinance. As the Vermont Supreme Court discussed in Appeal of Gregoire , Docket No. 98-508 (Vt. Supreme Ct., October 21, 1999): The public interest in the regulation and gradual e limination of nonconforming uses is strong, and zoning provisions allowing nonconfor ming uses should be strictly construed. By their very nature, nonconforming uses , defined as A> a use of land or a structure which does not comply with all zoning reg ulations = where such use was proper prior to the enactment of the regulations, @ are inconsistent with that purpose. Such uses are recognized and permitted to continue, simply by virtue of their existence prior to the enactment of the ordinance. However, their extension is carefully limited, since the ultimate goal of zonin g is to gradually eliminate them. [Citations omitted.]

In the present case, Defendant-Appellants had the r ight to continue the nonconforming uses allowed by their 1985 approval, und er the conditions imposed in that approval, but not to expand those uses. Moreover, under the abandonment provision of the ordinance, ' 320(c), by discontinuing some of those uses for mor e than 18 months, they forfeited the right to continue them. Thus, as of the end of March, 1990, DefendantAppellants only retained the right to continue to u se the barn for storage of automobiles7

and boats in connection with their other businesses , and to sell used cars from the barn once or twice a month. They did not have the right to expand the uses to repair tractortrailers or other large transport vehicles, and did not have the right to use the property outside the barn as a salvage yard.

Accordingly, based on the findings and conclusions discussed above, it is hereby
ORDERED and ADJUDGED that: Judgment is entered for the Town in Docket No. 109- 7-99 Vtec, the enforcement action, and in Docket No. 117-7-99 Vtec, the underl ying notice of violation for the violation. Defendant-Appellants have violated the Zoning Byla ws by operating a commercial facility for the servicing of transport trucks at the proper ty. This decision and order is an entry of final judgment as to the appeal from the notice of violation: Docket No. 117-7-99 Vtec. V.R.C.P. 54(b). However, in light of the Court = s September 9, 1999 ruling on the motion for stay, this decision and order is not an entry of final judgment as to Docket No. 109-7- 99 Vtec. Rather, on or before August 15, 2000, the pa rties may file supplemental arguments, and may request an additional evidentiary hearing, regarding the Town = s request for a fine and appropriate injunctive relief in the enforcemen t case, in light of the Court = s findings,
conclusions and order in this decision. The enforc ement case, Docket No. 109-7-99 Vtec is the only one for which a final judgment has not been entered concluding the case. Judgment is also entered for the Town in Docket No. 129-7-99 Vtec, the denial of conditional use approval. Defendant-Appellants = use does not qualify for a conditional use permit either in the Rural zoning district under ' 315, or as an expansion to a pre-existing, non-conforming use under ' 320(b). This decision and order is an entry of fin al judgment as to Docket No. 129-7-99 Vtec. V.R.C.P. 54(b).

Done at Barre, Vermont, this 14 th day of July, 2000.

_________________________________________________ Merideth Wright8 Environmental Judge