1 STATE OF VERMONT SUPERIOR COURT - ENVIRONMENTAL DIVISION
} In re All Metals Recycling, Inc. } (DRB Permit Appeal) } Docket No. 171-11-11 Vtec }

Decision on the Merits
Before us is the appeal of a discretionary zoning p ermit allowing Appellee All Metals Recycling, Inc. (All Metals) to establish an outdoo r storage area and install a scale house and
scale at 38-42 Dorset Lane in the Town of Williston , Vermont (Property) to conduct a “metals recycling operation.” Appellee Riggs Properties an d Interested Person the Town of Williston, Vermont (the Town) are owners of the properties on which All Metals seeks to conduct its proposed project. Appellants Darlene Ashley, John Chandler, James Babcock, Jennifer Ashley, William Babcock, Shawn Chapman, William Burnett, Je annine Burnett, Patty Shortsleeves, George Shortsleeves, Gary Boutin, Michael Burnett, and Mark Burnett (hereinafter referred to as Neighbors) appeal the Town of Williston Development Review Board’s decision granting the permit with conditions.
In an April 23, 2012 decision, we disposed of Neigh bors’ original Questions 1, 2, 6, 7, and 9 and granted Neighbors’ motion to amend their Stat ement of Questions to include a Question 10. In re All Metals Recycling, Inc., No. 171-11-1 1 Vtec, slip op. at 11–12 (Vt. Super. Ct. Envtl. Div. Apr. 23, 2012) (Walsh, J.). Additionally, in an April 4, 2013 decision we granted summary judgment to All Metals on Neighbors’ Questions 3, 4 , and 5, we dismissed Neighbors’ Question 8 as beyond our subject matter jurisdiction, and we denied Neighbors’ second motion to amend their Statement of Questions, thereby declining to review Neighbors’ proposed Question 11. In re All Metals Recycling, Inc., No. 171-11-11 Vtec, slip op. at 12 (Vt. Super. Ct. Envtl. Div. Apr. 4, 2013) (Walsh, J.). Only one question, Neighbor’s Q uestion 10, remains for our review: “Should Applicants have been denied a Discretionary Permit where Applicants failed to demonstrate adequate provision for off-street parking and loadi ng as required by Chapter 14 of the Bylaw?” (Neighbors’ Am. Statement of Questions at 3, filed Feb. 23, 2012.) Thus, the scope of our review is narrowly limited to whether the project’s off-st reet parking and loading complies with the Town’s Bylaw.2

The Court conducted a site visit to the property on July 9, 2013, immediately followed by a single day merits hearing at the Vermont Superior Court, Chittenden Civil Division courthouse in Burlington, Vermont. Appearing at th e site visit and trial were Mark L. Sperry, Esq. and Hobart F. Popick, Esq., Attorneys for the Appellant Neighbors, Robert F. O'Neill, Esq. and David A. Boyd, Esq., Attorneys for Appellees Al l Metals Recycling, Inc. and Riggs Properties, and Paul S. Gillies, Esq., Attorney for Interested Person Town of Williston. Based upon the evidence presented at trial, put int o context by the site visit, the Court renders the following Findings of Fact and Conclusi ons of Law.
Findings of Fact

1. All Metals maintains a place of business at 38-42 D orset Lane, Williston, Vermont (the Williston facility). All Metals seeks a discretion ary permit for the Williston facility specifically for outdoor storage, a scale, and a sc ale house.
2. The Williston facility is located in the Town’s Gat eway Zoning District North (GDZN District).
3. The Williston facility consists of a portion of an existing building and a portion of an existing parking lot and associated grounds which A ll Metals subleases from ReSOURCE: A Nonprofit Community Enterprise, Inc. (R eSOURCE).
4. No physical changes are proposed for the building. The existing parking surface will remain unchanged, however, a scale and scale house have been constructed within and adjacent to the northern portion of the existing pa rking surface.
5. Within its leased area, All Metals proposes to pain t parking space lines upon the parking lot surface which currently has no lines.
6. The building is surrounded to the south, east, and north by the existing parking lot.
7. The eastern and southern sides of the existing park ing lot are located within 25 feet of James Brown Drive and Dorset Lane.
8. All Metals does not lease, propose any activity upo n, or propose any physical modification to the eastern and southern portions o f the existing parking lot.
9. The Town planning commission approved the original building and parking lot in 1982.
10. Neighbors assert that changes were previously made to the building and parking lot without necessary permits.
11. The building is approximately 180 feet by 60 feet i n size and is two stories tall.3

12. The building is owned as two separate condominium u nits. Riggs Properties owns one unit and Raymond and Gloria Charbonneau own the oth er. 13. Riggs Properties leases approximately 9,600 square feet of building space to ReSOURCE, Inc. along with an exterior portion of the lot on t he north side of the property.
14. ReSOURCE, Inc. in turn subleases to All Metals appr oximately 463 square feet of building space as well as a majority of ReSOURCES’ exterior space, including parking space, on the north side of the building. 1
15. All Metals is one of three tenants in the 38-42 Dor set Lane building.
16. All Metals occupies two interior areas of the build ing, including a small office and a processing room containing hydraulic shears, mechan ized Sawzall saws, and a platform
scale.
17. On May 7, 2012, All Metals entered into a written l ease with the Town authorizing All
Metals’ use of 0.27 acres of the Town’s land locate d directly north of the land leased
from ReSOURCE.
18. All Metals formally amended its sublease agreement with ReSOURCE in June 2013 to confirm that All Metals has exclusive use of 10 par king spaces available to it within the area subleased by All Metals.
19. Three All Metals employees work at the Williston fa cility. Additionally, a manager is on-site approximately half-time. Williston facility to the general public.
20. The Williston facility is open for business from 8 a.m. to 4 p.m. Monday to Friday and 8 a.m. to 1 p.m. on Saturday.
21. The Williston facility services between 5 and 10 cu stomers per day, and each customer visit typically lasts between 15 and 20 minutes. I n the past, when the facility was busy, up to 4 or 5 customers may have been at the facili ty at one time—one in process and the others awaiting service.
22. At the Williston facility, All Metals purchases scr ap metals from individuals and businesses for resale to third parties.
23. All Metals advertises its services at the ls does n ot accept garbage or trash at the Williston facility.

1 In an earlier decision in this case we stated that the approximate size of All Metals’ interior space was between 180 and 270 square feet based on the estima tes provided by the parties at that time. In re Al l Metals Recycling, Inc., No. 171-11-11 Vtec, slip op . at 2 (Vt. Super. Ct. Envtl. Div. Apr. 4, 2013) (W alsh, J.). At trial the parties presented more specific eviden ce of the actual building space leased to All Metal s.4

24. Trucks carrying metals arrive at the facility and a re weighed and then unloaded. The trucks are then weighed again while empty. In some cases, All Metals will pick up a customer’s scrap metal and haul it to the Williston facility.
25. At the Williston facility, All Metals sorts and agg regates the metals it purchases. All Metals aggregates the scrap metal so that it may be shipped in a cost-effective manner. Aggregation may include trimming the metals using h ydraulic shears and mechanized Sawzall saws and compacting the metals using a mech anized compactor. The aggregation process may also include the use of a t andem excavator and a skid steer.
26. Once the metals are sorted and aggregated, All Meta ls trucks the metals to either its location in Hardwick, Vermont or directly to a purc haser. All Metals sells the metals to customers who are not “end users,” but who include mills, processors, and refiners.
27. Prior to the filing of the permit application at is sue in this case, All Metals conducted its business at the Williston facility without a permit from the Town.
28. All Metals’ Parking Space Layout Plan, Exhibit C, d epicts the 10 parking spaces for All
Metals’ exclusive use within the area subleased fro m ReSOURCE. An additional 4 employee parking spaces are located on the portion of Town property leased by All Metals. One handicap space is provided in front of the building space leased by All
Metals.
29. All of All Metals’ proposed parking spaces satisfy the dimensional requirements set for in Bylaw Table 14.C.
30. Bicycle parking is not provided for in the Parking Space Layout Plan.
31. All Metals proposes supplemental plantings along th e northern portion of the 0.27 acres
leased from the Town.
32. Existing vegetation and the supplemental plantings will result in a landscaped buffer between the All Metals operations and the portion o f the Town land retained by the
Town.
33. This landscaped buffer is located wholly upon the l and that All Metals leases from the
Town.
34. The Parking Space Layout Plan, Exhibit C, identifie s a snow storage area along the western edge of the Williston facility. This area does not obstruct access to parking

spaces.5

35. On September 9, 2011, Sanborn, Head & Associates, o n behalf of All Metals, submitted a discretionary permit application to the Town Zoning Administrator to “[e]stablish an outdoor storage area and install a scale house and scale to accommodate [the] existing metals recycling operation.” The permit applicatio n identifies All Metals as the “Facility Operator.”
36. On October 25, 2011, the DRB considered and approve d the discretionary permit application.
37. Neighbors timely appealed the discretionary permit.

Conclusions of Law Neighbors’ Question 10 asks whether All Metals’ app lication for a discretionary permit should be denied for failure to demonstrate adequat e provision for off-street parking and loading as required by Chapter 14 of the Bylaw. By law Chapter 14 sets standards for off-street parking and loading and applies to all development for which a permit is required. Bylaw § 14.1.1. “Existing and proposed parking and loading areas must be clearly shown on the plans submitted with any application for a permit.” Id. All Metals seeks a discretionary permit for its out door storage, a scale, and a scale house, to be located within the area it currently sublease s from both ReSOURCE and the Town. The application before us, and therefore our review, do es not include ReSOURCES’ space which is not subleased to All Metals. Additionally, our rev iew does not consider the Charbonneau unit
or the activities associated with that unit. In our prior April 4, 2013 decision, we summarized All Metals operations as the purchase, sorting, and sale of scrap metal for recy cling. We concluded that All Metals seeks a permit to operate a materials recovery facility. I n re All Metals Recycling, Inc., No. 171-11-11 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Apr . 4, 2013). Evidence admitted at trial supports these determinations. Thus, we continue to conclud e that All Metals’ proposed use is a permissible use in the Gateway Zoning District Nort h. The Number of Parking Spaces: All Metals asserts that no new or additional parkin g beyond existing parking is required under the Bylaw. Bylaw Table 14.A establishes the minimum parking requirements for certain development types. It does not, however, list a “m aterials recovery facility” or “outdoor storage area, scale or scale house.” Bylaw § 14.2. 3 states that if a specific use is not listed in Table 14.A, then the Administrator shall determine the number of parking spaces needed based6

on similarity of the proposed use to one or more of the uses listed in Table 14.A. All Metals’ operations fit most appropriately under the “Indust rial” category in Table 14.A. To determine the necessary amount of parking for a project in th e Industrial category one must “[u]se 1.00 spaces per 1000 [square feet of gross floor area] a s a starting point” but “[t]he actual requirement will be set by the Administrator or DRB .” Bylaw Table 14.A. In this de novo appeal, this Court considers the application as tho ugh the Court were the Administrator. V.R.E.C.P. 5(g); see also In re Torres, 154 Vt. 233 , 235-36 (1990) (noting that “[t]he reach of the superior court in zoning appeals is as broad as the powers of a zoning board of adjustment or a planning commission” and “whatever the zoning board of adjustment or the planning commission might have done with an application prop erly before it, the superior court may also do if an appeal is duly perfected”). We consider only All Metals’ leased floor area of 4 63 square feet to initially determine the required number of parking spaces. Thus, as a starting point, using one space for every 1,000 square feet of floor area, the project requir es one parking space to satisfy the Bylaw. As the Bylaw directs that the actual number of require d parking spaces be set by the Administrator, and therefore this Court on appeal, we consider whether the application requires more than one parking space. Based upon t he evidence received at trail, we conclude that more than one parking space is necessary. Fir st, All Metals typically has three employees working at the site. Additionally, Randy Towns, on e of the owners and a manager of All Metals, spends about half of his time at the site. It is also common for All Metals to have up to 4 or 5 customers at its site at any given time. Fina lly, Bylaw § 14.3.1 and Table 14.B require one handicap accessible parking space. Thus, we conclu de that 10 parking spaces are required to accommodate potential parking needs under the appli cation. As described below, we conclude that All Metals’ application satisfies this require ment. All Metals’ June 2013 second amendment to its suble ase with ReSOURCE expressly provides All Metals with exclusive use of 10 parkin g spaces located within the area of the sublease. All Metals’ Parking Space Layout Plan, E xhibit C, depicts the 10 parking spaces for All Metals’ exclusive use, including one handicap s pace at the front of the building space leased by All Metals. All of these spaces satisfy the dim ensional requirements set forth in Bylaw Table 14.C. All Metals’ Parking Space Layout Plan, Exhib it C also depicts 4 employee parking spaces located on the portion of Town property leased by A ll Metals.7

Appellants assert that Bylaw § 14.2.7.1 requires al l off-street parking to be located on the same lot and under the same ownership as the use th ey serve. As such, Appellants argue that these 4 parking spaces on Town land cannot be used to satisfy parking requirements. We find this argument unpersuasive. All Metals conducts its operations on both the land it leases from ReSOURCE and the
land it leases from the Town. All Metals’ use cros ses the property boundary line and includes the proposed scale and scale house on the portion o f land it leases from the Town. Thus, the 4 spaces on the land owned by the Town are in fact lo cated on the same lot and under the same ownership as the use they serve. Moreover, we will not interpret zoning regulations in ways
that lead to irrational results. See Stowe Club Hi ghlands, 164 Vt. 272, 280 (1995) (refusing to interpret regulation such that it leads to irration al results). We conclude that reading the ownership requirement of Bylaw § 14.2.7.1 to prohib it parking on one of the two leased areas but not the other is irrational. Thus, because all 14 proposed parking spaces are located on land controlled by All Metals under its leases with ReSO URCE and the Town, and becauseAll Metals operates its business on portions of both propertie s, we find this proposal complies with the ownership requirement of Bylaw § 14.2.7.1. We also recognize that Bylaw § 14.2.1 states that t he number of parking spaces provided by Table 14.A is both a minimum and maximum for a p articular project. The Bylaw also provides, however, that the Administrator or DRB, a nd therefore this court on appeal, has discretion to determine the required parking for In dustrial uses. In exercising this discretion under these circumstances, we find that All Metals’ proposal for 14 parking spaces is appropriate for its particular use, provides a reas onable number of spaces for employees and customers, and does not amount to excessive parking

. Lastly, as required by Bylaw Table 14.A, All Metals must provide for one bicycle parking space. While the Parking Space Layout Plan does not depict this space, Brian Beaudoin, All Metals’ engineer who contributed to t he Parking Space Layout Plan, testified that one bicycle parking space could be located in the m etals processing area. With this additional feature, Table 14.A as relating to bicycle parking is satisfied. Thus, we conclude that the number and dimensions of parking spaces specifically designated for All Metals use as illustrated on the Parking Space Layout Plan complies with Bylaw Chapter 14 if supplemented with a single bicy cle parking space.8

Parking Lot Setbacks, Buffers, and Snow and Ice: Neighbors argue that All Metals’ proposed parking d oes not comply with the Bylaw
because of insufficient setbacks and buffers and be cause the application does not satisfy the Bylaw provisions relating to snow and ice. Regarding setbacks, Neighbors argue that the site’s parking areas infringe upon the 25 foot setback from James Brown Drive and Dorset Lane . See Bylaw § 33.3.3.2 (requiring a 25 foot setback from all roads except Route 2A in the Gatew ay Zoning District North). Bylaw § 46.7.4 dictates that where the setback applies to parking areas we are to measure at grade from the nearest point on the property or right-of-way line to the outer edge of the parking surface. The parking surface along the eastern and southern side s of the existing parking lot is located within the 25 foot setback from James Brown Drive and Dors et Lane. All Metals does not lease, propose any activity upon, or propose any physical modification to these areas. This encroachment into the setback from James Brown Driv e and Dorset Lane, although a nonconformity, is therefore not fatal to All Metals ’ application. Under the Bylaw, a nonconforming structure is a str ucture or part of a structure that does not conform to the present Bylaw, but was in c onformance with all applicable regulations prior to the enactment of the present Bylaw, includ ing a structure improperly authorized as a result of error by the administrative officer. Byl aw § 2.6.1. We construe zoning ordinances according to general principles of statutory constr uction, applying the plain language of the ordinance where it resolves the issue and comports with the overall scheme and intent. Appeal of Weeks, 167 Vt. 551, 554 (1998). The parking lot does not precisely fall within the Bylaw definition of nonconforming structure. However, it does not fall outside of this definition either. Parking lots are physical improvements to sites, they are associated with buildings, and are subject to setback limitations pursuant to the Bylaw. 2 We thus consider the parking lot in this matter as a nonconforming part of a structure. The parking lot on the eastern and southern portions of the site was authorized by the Town in 1982 and the present application does not propose to alter these portions of the parking lot. 3

2 The Bylaw provides no general definition of a stru cture. It does define structure specifically for floodplain management and insurance purposes, both of which are irrelevant to our considerations in this appeal. See Bylaw § 46.7.8.

3 While Appellants assert that portions of the exist ing building and property may not comply with the Town’s 1982 approval, such issues are not within ou r scope of review. To be clear, this is not an enforcement action, and we review All Metals’ appli cation specifically under the question raised to th e Court.9

A notation within the Bylaw at § 2.6 states: Is allowing the replacement or enlargement of a non conforming structure good policy? First, remember that a conforming use can be housed in a nonconforming structure. This means that the repla cement or enlargement of a nonconforming structure may not re sult in a change in the nature or extent of a nonconforming use. Secon d, refusing to allow the replacement of nonconforming structures often r esults in blight, as these structures are not maintained. Allowing repl acement may result in an improvement. Finally, most nonconforming struct ures are not nonconforming in every dimension. Consider a build ing that is too close to a stream or property line. The side nearest the stream or property line is nonconforming, but as long as that side doesn’t change, it may be possible to expand the building in another directio n in full compliance with this bylaw...

Again, All Metals does not seek any use, modificati on, or expansion of the existing parking lot on the easterly and southerly sides of the building . The notation quoted above evidences the clear intent of the Bylaw drafters that so long as a particular nonconformity is not altered, changes can occur within a development as otherwise permitted. Thus, based on this clearly evidenced intent, the fact that the existing parkin g lot encroaches into the setbacks from James Brown Drive and Dorset Lane does not render the app lication non-compliant with the Bylaw. 4 These existing nonconformities of the site may cont inue. 5 See Bylaw § 2.6.2 (allowing for continuation of nonconforming structures). Although Appellants did not raise the possibility o f requiring a correction of this nonconformity of the site, we note that Bylaw § 2.8 empowers the DRB, or this Court on appe al, to require that nonconformities be corrected as a c ondition of approval of a discretionary permit. This corrective power is limited to requir ing work that is reasonably proportional to the scale of the proposed development. Because All Met als does not seek any use of or alteration to

4 Having found that the parking lot fits within the definition of a nonconforming structure we need not determine whether it is also a nonconforming use. We do note, however, that as All Metals does not propose to change the use of the nonconforming park ing lot in any way. Our analysis would be the same under Bylaw § 2.5 allowing for the continuation of nonconforming uses. We also note that our decision on this issue is based on the Court’s reading and i nterpretation of the Bylaw alone and we therefore d id not consider the testimony of the Administrator reg arding past implementation or interpretation of the Bylaw.

5 Appellants also argue that All Metals lost any ve sted rights to use the parking spaces according to the Town’s 1982 approval. Vested rights pertain only t o an applicant’s ability to have a project reviewed under the set of regulations in force at the time o f a completed application. There is no question ra ised about which regulations govern the application and therefore no issue of vested rights. The ‘right’ t o keep the southern and eastern portions of the parki ng lot as they are results only from the permissibl e continuation of preexisting nonconformities under t he Bylaw.10

these nonconforming areas of the existing parking l ot, we conclude that All Metals’ proposal
does not warrant a correction of the encroachment o f the parking lot into the setbacks from James Brown Drive and Dorset Lane. Neighbors also argue that the application does not satisfy Bylaw Table 23.A regarding landscaped buffers. The Bylaw provides specific bu ffer parameters based on the type of landscaped buffer. A Type I buffer is “composed pr imarily of existing woodland or forest” and “must be relatively wide to sustain its habitat val ue and to function as a woodland or forest that needs only minimal maintenance.” Bylaw § 23.3.2.2. Type II landscaped buffers are composed of dense continuous screening vegetation and are no t permitted in the GZDN. Id. at § 23.3.2.3. Type III landscaped buffers are called “Informal Pl antings” and “must be composed of a planted area that includes a ground cover, a partia l understory or shrubs and small trees, and major trees.” Id. at § 23.3.2.4. Between the All Metals use and the Town use a Type I buffer must be 50 feet and a Type III buffer must be 9 fee t. Id. at Table 23.A. All Metals proposes supplemental plantings along th e northern line of the 0.27 acres it leases from the Town to create a Type III landscape d buffer between the All Metals operations and the rest of the Town land. This Type III lands caped buffer will be at least 9 feet wide between the adjoining heavy commercial/industrial u ses and will therefore meet the Bylaw requirements. See Bylaw Table 23.A. Although Neig hbors argue that a fifty foot Type I buffer is appropriate here, they point to nothing in the B ylaw that requires one. As there is not currently a fifty foot wide woodland or forest sepa rating these uses, a Type I buffer does not apply. Nothing in the Bylaw requires this buffer to be mea sured from the common boundary between the ReSOURCE parcel and the Town parcel. R ather, the Bylaw requires that the buffer be located between the adjoining land uses. See By law §23.3 (defining required buffers by the different uses th ey separate, without reference to parcel boundary lines). Furthermore, pursuant to Bylaw § 23.3.5, the inclusion of the landscaped buffer eliminates the need for a rear (or side) yar d setback for this portion of the proposed project. Thus, the definition of setback as emphas ized by the Neighbors is irrelevant, as no setback is required. Locating the landscape buffer at the parcel boundary line would simply bisect All Metals’ single use rather than separate one use from another as required by the Bylaw. Thus, the 9 foot wide Type III buffer, crea ted and maintained along the northern11

portion of the land All Metals leases from the Town satisfies both the landscaping and setback requirements of the Bylaw. Neighbors next challenge the adequacy of the applic ation as relating to snow storage. Bylaw § 16.6 regulates snow removal and storage. T he only provision relative to parking dictates that snow storage shall not occur on or ob struct any parking. Bylaw § 16.6.3.3. The Parking Space Layout Plan, Exhibit C, identifies a snow storage area along the western edge of the property. In accordance with Bylaw § 16.6.3.3 , this area does not obstruct access to parking spaces. We conclude that our review of snow stora ge is limited to parking issues, and as such, the application complies with the Bylaw with regard to adequate snow storage. Lastly, Appellants argue that Bylaw § 22.5.2, prote cting parking areas from ice and snow sliding off of roofs, applies to this application. We disagree. Chapter 22 is the design review portion of the Bylaw. The design review chapter ap plies to new construction and major additions to existing buildings only. Bylaw § 22.2 .2. Because the application does not entail new construction or a major addition to the existin g building, we conclude that the application does not undergo design review. Therefore, the app lication’s compliance with Bylaw § 22.5.2 is
not before us.

Conclusion For the reasons discussed above, we conclude that A ll Metals’ application for a discretionary permit provides adequate provision fo r off-street parking and loading as required by Chapter 14 of the Bylaw. As we previously ren dered our decision on the other issues before the Court, we AFFIRM the DRB’s grant of a discretio nary permit subject to the following
additional condition:
1. All Metals must provide for one bicycle parking spa ce in the metals processing area. All Metals’ application for a discretionary permit is hereby remanded to the Williston Zoning Administrator so as to complete the minister ial act of issuing the discretionary permit to
All Metals in accordance with this Merits Decision and the un-appealed determinations of the Williston Development Review Board. A Judgment Order accompanies this Decision. This c ompletes the current proceedings
before this Court. Done at Berlin, Vermont, this 1st day of November, 2013.

_________________________________________ Thomas G. Walsh, Environmental Judge