1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Quality Market – Parnigoni Lot Parking } Doc ket No. 53-3-08 Vtec (Appeal of Blackburn) } }

Decision and Order on Second Cross-Motions for Summ ary Judgment

Michael and Brandi Blackburn appealed from a decis ion of the Development Review Board (DRB) of the City of Barre, granting Ap pellee-Applicant Quality Market’s application to remove an existing building on an ad jacent lot and expand an existing parking lot on that adjacent lot. Appellants are r epresented by David L. Grayck, Esq. and Zachary K. Griefen, Esq.; Appellee-Applicant Qua lity Market (Applicant) is represented by L. Brooke Dingledine, Esq.; and the C ity is represented by Oliver L. Twombly, Esq. Appellants and Applicant have each mo ved for summary judgment. The following facts are undisputed unless otherwise noted. At the request of Applicant, a site visit was taken to provide context for the summary judgment motion on July 29, 2009. 1 After the site visit, by agreement of the parties, Applicant provided a survey of the property to the Court in connection with the motion for summary judgment. A decision on summary judgment, issued October 30, 2008 (October 2008 Decision), resolved Questions 2, 3, 4, 5, 6, 9, 10, 11, an d 12, and the first clause of Question 7 of the Statement of Questions.

1 The site visit was originally scheduled so that al l participants could attend; by agreement of Appellants’ attorneys, it was held with Attorney Dingledine, her clients, and Appellant Michael Blackburn, without Appellants’ attorneys.2

Quality Market is an existing grocery store that f alls within the definition of “Food Store, Small” in § 2.2.01 of the City of Barre Zoning Regulations (Regulations). It is located at the corner of Washington Street (Rout e 302) and Freedom Way, at the address of 155 (155–159) Washington Street in a Pla nned Residential zoning district. Based on the survey filed in August 2009, the Qualit y Market lot is approximately 9,759 square feet, or approximately 0.22 acre. The survey does not provide the setbacks of the existing Quality Market building, other than by cal culation from measurement based on the graphic scale; for purposes of the present moti ons it is sufficient to note that the existing building is nonconforming as to setbacks. See Regulations Article 7; October 2008 Decision, slip op. at 1 n. 3. No alterations t o the Quality Market building are proposed. The property’s access to the street netw ork and the configuration of its onsite parking spaces have not been provided to the C ourt in connection with the present motions, other than as they are shown visually on an aerial photograph of unknown date, which was attached to Appellants’ reply memora ndum in the earlier summary judgment motions. Adjacent to and westerly of Quality Market, also in the Planned Residential zoning district, is a lot formerly owned by Dr. Ric hard F. and Joan S. Parnigoni (the Parnigoni lot), containing an existing building with an address of 153 (151-153) Washington Street. The building houses an optometr ic office on the ground floor and a residential apartment upstairs. From the survey, i t appears that an attached shed or garage is also located behind the building, slightly farther than 20 feet from the rear boundary of the Parnigoni lot. The Parnigoni lot i s approximately 9,591 square feet in area, or approximately 0.22 acre, and is configured with room for seven existing paved parking spaces outside of the garage, four of which are marked by striping, on the westerly side of the lot adjacent to the existing r esidential property of another neighbor (LaCroix) not involved in this appeal.3

Appellants’ residential property has the address o f 52 Webster Street and is located adjacent to (southerly of) the rear lot lin e of the Parnigoni lot and to a small segment of the southwesterly corner of the rear of the existing Quality Market lot and building. Access to Appellants’ property is from W ebster Street. Dr. Parnigoni acquired the Parnigoni lot in 1977, a nd shortly thereafter converted a then-existing first-floor apartment into a profes sional optometric office, from which he operated his practice continuously through at least the date of his affidavit of June 13,

2008. As the Court determined in the October 2008 Decision, the optometric office is a pre-existing, nonconforming use. The second floor o f the building contains a residential apartment, an allowed use in the zoning district. The present application was filed in January 2008 by Dr. Parnigoni as property owner, and by Quality Market as applicant company. In May 2008, ownership of the Parnigoni lot was transferred to P & G Real Estate, LLC, the same entity that owns the Quality Market lot. The application presently before the Court proposes to remove the existing structures on the Parnigoni lot and to expand the e xisting parking lot on that lot to a total of sixteen spaces, 2 with associated proposed landscaping. It was cons idered by the DRB as a change in use from its existing nonconform ing use as a medical/dental/optical office (and allowed residential apartment) to an al lowed conditional use as a “private parking lot.” As a nonresidential conditional use, it requires site plan approval, § 4.4, as well as conditional use approval, § 4.3. The narrative describing the proposal, submitted b y Quality Market as part of the application, states that Quality Market proposes to demolish the existing building and expand the existing parking lot on the property . The proposed parking lot is proposed to be set back 15 feet from the Parnigoni lot’s boundary with the Blackburns’

2 The DRB approved fewer than the 18 spaces in the o riginal application; Applicant is now seeking approval of 16 spaces, as shown on the r evised site plan.4

lot. As depicted on the revised site plan, five exi sting mature ash trees on the Parnigoni property near the rear boundary are proposed to be removed. Four new maple trees are proposed to be planted on the neighboring Black burn property near the BlackburnParnigoni lot line. Two eight-foot-tall cedar hedg es are also proposed to be planted: one on the southerly edge of the parking lot facing the Blackburn lot line, and another along a portion of the Parnigoni lot’s westerly bou ndary. Two planting beds, proposed to each contain three Japanese Barberry and three A merican Arborvitae, are proposed along the Parnigoni lot’s northerly boundary on eit her side of the proposed 24-foot curb cut, which provides entrance and egress to Washingto n Street. Fencing is proposed to

enclose the rear setback area; it is intended to ex clude access to that rear setback area, except for a gate from the easterly side to allow s now storage within the rear setback

area. As discussed in the October 2008 Decision, the Qua lity Market use as a “Food Store, Small” is a nonconforming use in the zoning d istrict. The proposed parking lot would be reserved for customers of Quality Market; Appellants argue that the proposed parking lot is therefore an impermissible extension or expansion of the nonconforming small food store use on the adjacent lot. Section 2.2.01 of the Zoning Regulations defines th e use category of “Parking Lot, Private” (private parking lot) as “[a] use of land for the provision of parking spaces in the open air, not open to the general public.” The definition does not limit the use category to those parking lots in which the spaces are individually or privately rented. Therefore, regardless of whether the parking spaces would be reserved for customers of Quality Market or would be otherwise privately allo cated, the proposal qualifies for consideration as a private parking lot use, as long as the Parnigoni lot is considered a separate lot. If, on the other hand, the Parnigoni l ot has merged with the Quality Market lot, the Court must analyze whether the propo sed parking lot use would become an accessory use to the primary use on the m erged lot as a small food store,5

and, if so, whether it would be an impermissible ex pansion of the preexisting nonconforming small food store use. 3 Because the lots have come into common ownership, an d because both lots are nonconforming as to size, the Court must first exami ne whether the Regulations require merger of the two lots, and then whether the state s tatute as to merger requires any different result. Merger is addressed by § 4.8.02 of the Regulations, as well as in the state statute, 24 V.S.A. § 4412(2)(B). Section 4.8.01 of the Regulations allows separate p reexisting undersized lots to be developed for purposes permitted in the zoning dist rict if the parcel is at least 5,000 4 square feet in area. However, § 4.8.02 states: If such nonconforming [preexisting undersized] lot subsequently comes under common ownership with one or more contiguous lots, the lot shall be deemed merged for the purpose of development wit h the contiguous lots to the extent necessary to meet the district l ot size regulations. Section 4.8.02 goes on to provide that: Individual contiguous lots under common ownership m ay be transferred to other ownership without subdivision if: 1. The remaining lots meet all applicable district reg ulations 2. The lots remain in their originally approved config uration 3. The transferred lot(s) are either of adequate confi guration to meet applicable district regulations or will be used in conjunction with other contiguous lots in order to meet applicable d istrict regulations[.] The plain language of the first sentence of § 4.8.0 2 requires the Quality Market lot and the Parnigoni lot to be deemed merged, for t he purpose of development, into a single lot of approximately 0.45 acre. See In re C urtis , 2006 VT 9, ¶ 2, 179 Vt. 620 (mem.)

3 The Regulations define accessory use as a use “c ustomarily incidental, subordinate and clearly related to the primary use and located on the same lot .” See § 2.2.01 (emphasis added).

4 Note 1 to Article 7 of the Regulations refers to the requirement as 5,445 square feet (one-eighth-acre) in area, which is found in the pro vision of the state statute protecting existing small lots. See 24 V.S.A. § 4412(2)(A)(i)

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(explaining that courts construe the language of a zoning ordinance according to its “‘plain and ordinary meaning’” (quoting In re Nott , 174 Vt. 552, 553 (2002) (mem.))). The contiguous, nonconforming, undersized lots have come under common ownership. Even though the resulting merged lot would still no t meet the minimum lot size requirement for the presently-existing nonresidenti al use, which requires a minimum lot size of two acres, see Regulations Article 7, m erger would result in a lot that is closer to meeting the applicable district regulations as t o minimum required lot size than were the separate lots. 5 The second sentence of § 4.8.02 also does not preve nt merger of the Quality Market lot and the Parnigoni lot. The plain langua ge of the second sentence of § 4.8.02 indicates that it applies when “contiguous lots und er common ownership” are transferred. As there is no proposal now to transf er either the Parnigoni lot or the Quality Market lot, the remainder of § 4.8.02 is ina pplicable. Although § 4.8.02 of the Regulations requires the m erger of the two lots, the authority for the City to enact that section is lim ited by the state statute regarding

5 Applicant argues that the lots are not deemed to be merged, based on the language in the first sentence of § 4.8.02 stating that lots me rge “to the extent necessary to meet the district lot size regulations,” because the resultin g lot would still be undersized and would not succeed in reaching a size that would mee t the district requirements. This interpretation would create the absurd result of re quiring merger of, e.g. , two one-acre lots, because the resulting lot would meet the two-a cre minimum, while not requiring merger of the two seriously undersized quarter-acre lots in the present case. The City has provided a one-sentence statement that “the Cit y has historically construed § 4.8.02 . . . consistent with the analysis set forth” by Ap plicant. Without evidence as to how long the provision has been in the Regulations and how many instances of this interpretation have occurred, the Court cannot deter mine whether the requirement to avoid an absurd result in the interpretation of an ordinance should govern, see In re Ambassador Ins. Co. , 2008 VT 105, ¶ 18, or whether the Court should be g uided by a consistent application by the City of its ordinance , see In re Champlain Coll. Maple St. Dormitory , 2009 VT 55, ¶ 15. However, because of the effect of the state statute as to merger, discussed below, it is not necessary for the Court to take evidence on this issue.7

merger, 24 V.S.A. § 4412(2)(B). Section 4412(2)(B) authorizes municipalities to enact bylaws regarding merger of undersized lots, if an ex isting small lot subsequently comes under common ownership with one or more contiguous lots, but prevents merger in the following circumstances: However, a nonconforming lot shall not be deemed mer ged and may be separately conveyed if all the following apply: (i) The lots are conveyed in their preexisting, nonconfo rming configuration. (ii) On the effective date of any bylaw, each lot was dev eloped with a water supply and wastewater disposal system. (iii) At the time of transfer, each water supply and waste water system is functioning in an acceptable manner. (iv) The deeds of conveyance create appropriate easement s on both lots for replacement of one or more wastewater systems, p otable water systems, or both, in case there is a failed system or failed supply as defined in 10 V.S.A. chapter 64. (emphasis added). Thus, even if the lots would othe rwise merge under the municipal bylaw, they will not merge if all four subsections o f 24 V.S.A. § 4412(2)(B) are met. In the present case, all four subsections of 24 V. S.A. § 4412(2)(B) are met. The Parnigoni lot has been conveyed to the owners of th e Quality Market lot in its preexisting, nonconforming configuration, in accordan ce with subsection (i). Both lots are developed with municipal water and sewer servic e, in accordance with subsection (ii). 6 The parties do not claim that these services are not functioning in an acceptable manner; subsection (iii) is therefore met. Subsect ion (iv) is not applicable, as neither lot has an onsite water supply or wastewater system. Accordingly, under 24 V.S.A. § 4412(2)(B), the Parni goni lot and the Quality Market lot have not merged, and they remain separate lots even though they are now

6 None of the parties asserts that these services di d not exist at the time the bylaw regarding merger was enacted, although the motions d o not provide either the date on which the bylaw regarding merger was enacted, nor th e dates on which municipal water and sewer services were made available to the lots.8

owned by the same entity. The state statute preven ts the merger that otherwise would occur under § 4.8.02 of the Regulations. As the lots have not merged and thus remain separa te, the proposed private parking lot is proposed to be the primary use of th e Parnigoni lot; it is not accessory to the nonconforming use on the Quality Market lot as it is on a separate lot. 7 As a separate and distinct primary use on a separate and distinct lot, the proposed private parking lot would not be an expansion or enlargemen t of the preexisting, nonconforming Quality Market use. 8 In order for the proposed parking lot to receive a zoning permit, it must meet the conditional use standards in § 4.3, and must also re ceive site plan approval under § 4.4. 9 Because it is a nonresidential use, the proposed pr ivate parking lot may require waivers, either under § 4.9 regarding some of the d imensional requirements otherwise required by Article 7, or under § 8.5 regarding some of the requirements of §§ 8.3 and

8.4.03. In the October 2008 Decision, the Court n oted that no such waivers appeared to have been requested in the application or noticed b efore the DRB, and warned the parties that, if they had not been requested below, t hey would not be before the Court in the present appeal. In re Torres , 154 Vt. 233, 236 (1990) (explaining why court lacks authority to convert hearing on permitted use appli cation to hearing on conditional use); In re Bouldin Camp – Noble Road , No. 278-11-06 Vtec, slip op. at 6 (Vt. Envtl. Ct. Apr. 23, 2007) (ruling that only the appealed-from a pplication is before the Court) (citing In re Torres ). Applicant has noted that the Regulations do not contain any

7 Because the lots have not merged, as explained in t he October 2008 Decision Applicant’s proposal qualifies for consideration as a “Parking Lot, Private,” which is a conditional use in the zoning district, resolving Qu estions 13 and 15 of the Statement of Questions. See Regulations Article 6.

8 Resolving Questions 1, 8, and the remaining clause o f Question 7 of the Statement of Questions.

9 The remaining questions in Appellants’ Statement o f Questions only raise issues as to the project’s compliance with the conditional use s tandards.9

separate application requirement for waivers, so tha t the requested application should be considered to have included the request for any necessary waivers. At the telephone conference scheduled in this matt er (see enclosed notice), the parties should therefore be prepared to discuss the issue of whether and which specific waivers are requested as part of the present applic ation, as well as to discuss the scheduling of mediation and trial on the remaining questions in the Statement of

Questions.

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED that Applicant’s Motion for Summary Judgment is GRA NTED as to Questions 1, 8, 13, 15, and the second clause of Question 7, and DENIED as to Questions 14, 16, and 19, and that Appellants’ Motion for Summary Judgment is DENIED as to Questions 1, 8, 13, 15, and the second clause of Question 7. 10

Done at Berlin, Vermont, this 31 st day of August, 2009.

________________________________________________ _ Merideth Wright Environmental Judge

10 The October 2008 Decision resolved Questions 2, 3, 4 , 5, 6, 9, 10, 11, and 12, and the first clause of Question 7 of the Statement of Ques tions; therefore, at this time, only Questions 14, 16, 17, 18, and 19 remain at issue in thi s appeal.