State of Vermont Superior Court—Environmental Division

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In re Transtar, LLC Doc ket No. 46-3-11 Vtec (Appeal from Town of Dorset Zoning Board of Adjustm ent decision)

Title: Motion for Summary Judgment (Filing No. 7)
Filed: January 13, 2012
Filed By: Appellant Transtar, LLC

Response in opposition filed on 2/9/12 by Appellee Town of Dorset
Reply filed on 2/22/12 by Transtar, LLC
Supplement to Reply filed on 2/23/12 by Transtar, L LC

___ Granted ___ Denied X Other

Transtar, LLC (“Transtar”) appeals a decision from the Town of Dorset Zoning Board of Adjustment (“the ZBA”) permitting the operation of its preexisting sawmill but prohibiting its existing firewood processing operation without a co nditional use permit and prohibiting vehicle repair and maintenance on property Transtar owns in the Town of Dorset, Vermont (“the Town”). The ZBA did not address whether the property is bei ng used as a log transfer station or transshipment center. Now pending before this Cour t is Transtar’s motion for summary judgment.

The genesis of these proceedings was a complaint, f iled by neighbor David Wilson, that the operations at the Transtar site, formerly known as the Bear Paw Lumber site, were occurring in violation of the Town of Dorset Zoning Bylaw (“the Bylaw”). When the acting Zoning Administrator decided that the Transtar operations were a lawful continuation of the prior owners’ preexisting use, Mr. Wilson appealed to the ZBA. After the ZBA determined that some, but not all, of Transtar’s uses of the property cou ld be defined as lawful, preexisting nonconforming uses, Transtar appealed to this Court

. We begin our analysis with a review of the applicab le summary judgment standard. A court may grant summary judgment where “the pleadin gs, depositions, answers to interrogatories, and admissions on file, together with the affidavit s, if any, . . . show that there is no genuine issu e as to any material fact and that any party is entit led to judgment as a matter of law.” V.R.C.P. 56(c)(3) (2011) (amended Jan. 23, 2012) 1 ; see also V.R.E.C.P. 5(a)(2). We will “accept as true the [factual] allegations made in opposition to the mot ion for summary judgment, so long as they are supported by affidavits or other evidentiary materi al,” and we will give the non-moving party the

1 We note that an updated version of V.R.C.P. 56 to ok effect on January 23, 2012. We analyze this mot ion, however, under the previous version of the rule bec ause that version was in effect at the time the pen ding motion was filed, and, at any rate, the rule change does not affect our analysis here.In re Transtar, LLC, No. 46-3-11 Vtec (EO on Motion for Summary Judgment) (05-24-12) Pg. 2 of 4

2 benefit of all reasonable doubts and inferences. R obertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15,

176 Vt. 356.

In its motion for summary judgment, Transtar conten ds that the uses to which its property is put—uses which it describes as a sawmill operati on, a firewood processing operation, vehicle maintenance and repair activities, and a log transf er station or transshipment center—are all lawful, preexisting nonconforming uses. 2 In response, the Town does not dispute that the s awmill operation, the firewood processing operation, and t he log transfer station or transshipment center are lawful, preexisting nonconforming uses. The To wn disputes only Transtar’s contention that the vehicle maintenance and repair activities are a lso lawful, preexisting nonconforming uses. 3

Sawmill Operation, Firewood Processing Operation, a nd Vehicle Maintenance and Repair

Pursuant to the Bylaw 4 , Transtar’s property is located in the Agriculture and Rural Residential District. It is undisputed that sawmil ls and vehicle maintenance and repair are not uses that are allowed in that District. “Firewood/ cordwood processing operation that produces twenty or more cords per year” is an allowed condit ional use in that District. Bylaw § 4.2.2.12.

Section 10.1.1 of the Bylaw provides that

Any nonconforming use of a building or premises, wh ich was lawfully existing at the time of the adoption of this Bylaw, or any pert inent amendment thereto, may be continued . . . subject to the following regulation s:

1. No nonconforming use may be changed, except to a co nforming use, or, with the approval of the Zoning Board of Adjustment , to another nonconforming use not more objectionable in charact er.
Section 10.1.4 further provides that nothing in the Bylaw “shall require the discontinuance of a nonconforming use . . . already lawfully in use pri or to the passage of this Bylaw, or amendments

thereto.”

Thus, to continue to engage in the sawmill operati on, the firewood processing operation, and the vehicle maintenance and repair activities, Transtar must show that the activities are lawful, preexisting nonconforming uses. To do so, Transtar must prove (1) that the use existed prior to the ordinance being established; (2) that the use confo rmed to all laws existing prior to the ordinance being established; and (3) that the use is substant ial enough to warrant recognition. In re Transtar, LLC, No. 46-3-11 Vtec, slip op. at 2 (Vt. Super. Ct . Envtl. Div. Sept. 15, 2011) (Durkin, J.); see als o Town of Shelburne v. Kaelin, 136 Vt. 248, 251-52 (1 978).

We turn first to the sawmill operation and the fir ewood processing operation. Transtar has

submitted numerous affidavits that demonstrate that the sawmill operation existed prior to the

2 Mr. and Mrs. David Wilson initially submitted a c ross-appeal, which they later withdrew. Part of Transtar’s motion for summary judgment raises the q uestion of whether this Court retains jurisdiction over the issues raised in that cross-appeal despite its withdrawal. As discussed below, we conclude that T ranstar is entitled to summary judgment on these issues for other reasons. We therefore do not reach this jurisdictional question.

3 Transtar’s Statement of Questions is phrased as i f this Court is to engage in on-the-record review. However, there is nothing before us that indicates that the Town has adopted such review. We will the refore interpret the Questions as if they were phrased for our de novo review.

4 The Bylaw first took effect on March 6, 1973.In re Transtar, LLC, No. 46-3-11 Vtec (EO on Motion for Summary Judgment) (05-24-12) Pg. 3 of 4

3 enactment of the Bylaw on March 6, 1973. The affid avits indicate that firewood processing also occurred on the subject property prior to the Bylaw ’s enactment. Both of these uses were lawful, as no zoning regulations existed prior to the adoption of the Bylaw. The affidavits also indicate that both the sawmill operation and the firewood process ing uses were substantial and were not substantially expanded in the years since the Bylaw was enacted. The Town has submitted nothing to dispute these allegations and has in fac t conceded that the uses are lawful, preexisting nonconforming uses. Accordingly, we GRANT summary judgment to Transtar in part, concluding as a matter of law that the sawmill oper ation and the firewood processing operation are lawful, preexisting nonconforming uses.

We next turn our attention to the vehicle repair a nd maintenance activities. In its motion for summary judgment, Transtar contends that the re pair and maintenance of both logging and non-logging vehicles and equipment on the subject p roperty occurred prior to the adoption of the Bylaw and that such repair and maintenance was a la wful activity at the time the Bylaw was adopted. Transtar also argues that such use is sub stantial enough to warrant recognition. In response, the Town does not contend that no vehicle repair and maintenance occurred on the property prior to the adoption of the Bylaw. Rathe r, the Town argues that the vehicle maintenance and repair was limited primarily to logging vehicle s. It also contends that the maintenance and repair was incidental to the wood processing use of the property and therefore was sufficiently minimal so as not to satisfy the third element of a lawful, preexisting nonconforming use. Both parties have submitted affidavits supporting their arguments. 5

Therefore, it is undisputed that, prior to the ado ption of the Bylaw on March 6, 1973, Transtar engaged in repair and maintenance of loggi ng vehicles and vehicles associated with the wood processing uses of the subject property. Howe ver, the Town has submitted an affidavit disputing Transtar’s contention that the repair and maintenance of non-logging vehicles also occurred prior to the Bylaw’s adoption.

Pursuant to the Bylaw, “[n]o nonconforming use may be changed, except to a conforming use, or, with the approval of the Zoning Board of A djustment, to another nonconforming use not more objectionable in character.” Bylaw § 10.1.1(1 ). Thus, it is material to our resolution of the pending motion whether the repair and maintenance o f vehicles extended to non-logging vehicles and whether this occurred before or after the adopt ion of the Bylaw. If vehicle repair and maintenance encompassed non-logging vehicles prior to the Bylaw’s adoption, it may be a lawful, preexisting nonconforming use. However, if the rep air and maintenance extended to non-logging vehicles only after the Bylaw’s adoption, Section 1 0.1.1(1) of the Bylaw may require ZBA approval for the change in use. Because a dispute as to mat erial facts exists, we DENY Transtar’s motion for summary judgment on the issue of non-logging vehicl e repair and maintenance. However, since the Town concedes that Transtar’s repair and mainte nance of vehicles used in its logging operation lawfully existed prior to the adoption of the Bylaw s, we conclude that repair and maintenance of logging vehicles is a lawful, preexisting nonconfor ming use. We therefore GRANT summary judgment to Transtar on that limited use (i.e., rep air and maintenance of logging vehicles on the Transtar site).

Log Transfer Station or Transshipment Center

Finally, we turn our attention to the alleged prop erty use Transtar describes as a log transfer station or transshipment center. As state d above, Transtar argues that this, too, is a lawfu l,

5 Transtar has filed a motion to strike the affidav it submitted by the Town. However, in an Entry Ord er also issued today, we deny that motion.In re Transtar, LLC, No. 46-3-11 Vtec (EO on Motion for Summary Judgment) (05-24-12) Pg. 4 of 4

4 preexisting nonconforming use and seeks a determina tion from this Court that this use is lawful. We conclude that questions regarding the status of this use are not properly before the Court in this proceeding.

Our jurisdiction in this de novo appeal is limited to addressing those issues that the ZBA had the authority to address when considering Mr. W ilson’s original zoning complaint. See In re Torres, 154 Vt. 233, 235–36 (1990) (“The reach of t he superior court in zoning appeals is as broad as the powers of a zoning board of adjustment or a pla nning commission, but it is not broader. . . . [W]hatever the Zoning Board of Adjustment of Planni ng Commission might have done with an application probably before it, the Superior Court may also do if an appeal is duly perfected.”).
Here, our review of the ZBA’s decision indicates th at Transtar never submitted an application to alter or vary the use of the subject property; the only question before the ZBA was Mr. Wilson’s complaint. See In re David Wilson, Findings of Fac t and Decision, at 2 (Town of Dorset Zoning Bd. of Adjustment Feb. 23, 2011). We thus regard the c omplaint as dictating the scope of the appeal
before the ZBA and this Court. See Torres, 154 Vt. at 235–36.

Although the parties have not provided us with Mr. Wilson’s original complaint, it is apparent from the ZBA’s decision that in his compla int before the Zoning Administrator, Mr. Wilson did not raise the question of whether the su bject property was lawfully being used as a log transfer station or transshipment center. The ZBA, in its decision responding to Mr. Wilson’s complaint, refused to address the issue of the log transfer station or transshipment center because the question was not raised in that complaint. Bec ause the ZBA did not have the authority to determine whether the log transfer station or trans shipment center was a lawful, preexisting nonconforming use, we also do not possess such auth ority. Accordingly, pursuant to the guidance
of Torres, we decline to address the issue of the l og transfer station or transshipment center.

Conclusion

We GRANT Transtar’s motion for summary judgment in part, co ncluding as a matter of law that the sawmill operation, the firewood proces sing operation, and the maintenance and repair of logging vehicles related to Transtar’s operation s are lawful, preexisting nonconforming uses.

We DENY Transtar’s motion for summary judgment in part, co ncluding that a dispute of material facts exists with regard to whether vehicle repair and maintenance included non-logging vehicles and, if so, whether that repair and maintenance occ urred prior to the adoption of the Bylaw. We will therefore proceed to trial on that limited iss ue, unless the parties remaining in this proceeding arrive at a voluntary resolution. The parties are directed to submit their unavailable dates for tria l during the period from August 27 through September 28, 2012 by June 29, 2012.

_________________________________________ May 24, 2012 _ Thomas S. Durkin, Judge Date

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Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:
David R. Cooper, Attorney for Appellant Transtar, LL C
Joseph J. O’Dea, Attorney for Appellee Town of Dors et