STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of Paul and 

Eileen Growald

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Docket No. 236-10-00 Vtec

Decision and Order on Appellee=s Motion to Dismiss and on Cross-Motions for Summary 

Judgment

Appellants Paul and Eileen Growald appealed from a decision of the Zoning Board of 

Adjustment (ZBA) of the Town of Shelburne granting conditional use approval to AppelleeApplicant Shelburne Museum, Inc. Appellants are represented by James E. Knapp, Esq. and 

Craig Weatherly, Esq.; Appellee-Applicant is represented by R. Jeffrey Behm, Esq. and Eric E. 

Hudson, Esq.; the Town is represented by Amanda S.E. Lafferty, Esq. Appellee-Applicant has 

moved to dismiss the appeal for lack of Appellants= standing; both Appellants and AppelleeApplicant have moved for summary judgment. The Town has taken no position on the pending 

motions.

The following facts are undisputed unless otherwise noted.

Appellee-Applicant owns property known as the Brick House property on a fourteen- acre lot 

located at 387 Quaker Smith Point Road in the Town= s R1 (Rural) zoning district. The Brick 

House property is adjacent to Shelburne Farms, a Planned Unit Development approved as an 

Historic Mixed Use PUD under the zoning bylaws in effect at the time; adjacent to Appellants=

residential property to the north; and adjacent to another single-family residential property to the 

south.

The Brick House was in existence as of the War of 1812. The Brick House, then in poor repair, 

together with substantial acreage, was given as a wedding present in 1910 to James Watson 

Webb and his wife, Electra Havemeyer Webb, by Mr. Webb= s parents. The Webbs renovated the 

house and built additions in 1913 and 1920, including a servants= wing to house 13 servants. 

The Webbs lived in the Brick House for at least part of each year between 1913 and 1947, when 

Mrs. Webb founded the Shelburne Museum. As of and after 1947, the Webbs resided for a 

greater part of each year at the Brick House. A two-bedroom apartment was added to the rear of 

the Brick House in the late 1940s, initially to house one of the Webbs= sons upon his return from 

World War II. Prior to 1947, Mrs. Webb stored and displayed her substantial collection of 

American folk art at the Brick House; after the founding of the Museum, much of that collection 

was transferred to the museum buildings. Mrs. Webb resided at the Brick House until her death 

in 1960, after which her son, J. Watson Webb, Jr., lived at the Brick House for about five months 

of each year until his death in 2000. From 1947 to Mrs. Webb= s death in 1960, Mrs. Webb from 

time to time hosted museum trustees, donors, visiting collectors and scholars in the house, 
maintained a staff of servants in the 13 rooms of the servants= wing and possibly also in the 

apartment, and hosted large gatherings of guests, including for weddings and other events. All of 

these uses were entitled to be continued as pre-existing uses even if they became nonconforming 

when zoning was adopted in 1963, or when later zoning amendments were adopted. 

As of the adoption of zoning in Shelburne in 1963, the Brick House had reached its present 

configuration as a 47-room (20 bedroom1) large historic house with 20,000 square feet of living 

space and a separate but attached two-bedroom apartment. The apartment has been used for a 

caretaker or property manager from at least 1975 to the present.

From 1960 to J. Watson Webb, Jr.= s death in 2000, when Mr. Webb was in residence he may 

have from time to time hosted museum trustees, donors, visiting collectors and scholars in the 

house, maintained a staff of servants in the servants= wing and possibly also in the apartment, and 

hosted guests in the house. These uses may be entitled to be continued as pre-existing uses even 

if they became nonconforming when later zoning amendments were adopted. 

The Brick House property was conveyed in 1986 to Appellee-Applicant by the sons of Electra 

Havemeyer Webb, with one son, J. Watson Webb, Jr., retaining the right to use the Brick House 

property during his lifetime. At the time of conveyance to the Museum in 1986, the Brick House 

property included a large barn and several hundred2additional acres, all later conveyed to 

Shelburne Farms. From 1986 to the date of the present application, Appellee-Applicant from 

time to time hosted museum trustees, donors, visiting collectors and scholars in the house, 

maintained at least a caretaker in the apartment, and hosted events in the house, including New 

Year= s parties and private weddings. These uses similarly may be entitled to be continued as preexisting uses even if they became nonconforming when later zoning amendments were adopted.3

After the death of J. Watson Webb, Jr., in 2000, Appellee-Applicant purchased the historically 

valuable contents of the Brick House from Mr. Webb= s estate. Intending to preserve and use the 

Brick House more fully in the course of its museum activities, Appellee-Applicant applied in 

approximately July of 2000 for conditional use approval for the following4uses: short-term 

housing for visiting scholars and interns; tours of the Brick House; prospective donor and trustee 

entertainment and accommodation; corporate meetings or private events such as weddings; and 

possible weekly rental of the two-bedroom apartment.

No physical changes are proposed to the property. 

The ZBA approved the conditional use application with conditions, concluding that the proposed 

uses are similar under ' 320.14 to permitted and conditional uses in the R1 district and otherwise 

consistent with the regulations. Particularly, the ZBA determined that the proposed uses are 

similar to a ' 310.10 bed and breakfast with no more than four rooms for rent. On summary 

judgment, Appellants argue that the proposed uses do not qualify as allowed uses in this zoning 

district.

Appellants= statement of questions sets forth two questions. The first is whether conditional use 

can properly be granted to what Appellants characterize as conversion of > a single-family 

residence= to > a commercial enterprise.= Question 2 is whether separate site plan review is 
required for this project. Question 2 is hereby DISMISSED as MOOT as Appellee-Applicant has 

since applied for and received site plan approval for the project.

Appellee-Applicant seeks dismissal of the appeal on the ground that Appellants lack standing as 

interested persons. Essentially, Appellee-Applicant claims that Appellants, though residents of 

property adjoining the Brick House property, are not in the A immediate neighborhood@

contemplated by 24 V.S.A. ' 4464(b)(3), due to the distance between the residences and the 

inability to see one residence from the other.

To interpret A immediate neighborhood,@ the Court examines not only at the proximity of the 

appellant to the project on appeal, but also whether the appellant potentially could be affected by 

any of the aspects of the project which the zoning laws regulate. In re Appeal of Brodhead, 

Docket No. E95-057 (Vt. Envtl. Ct., August 3, 1995); In re Appeal of Daniels, Docket No. 58-4-

99 Vtec (Vt. Envtl. Ct., Sept. 12, 2000); In re Appeal of Gulli, Docket No. 135-6-00 Vtec (Vt. 

Envtl. Ct., March 22, 2001); In re Appeal of Stanak and Mulvaney, Docket No. 101-7-01 Vtec 

(Vt. Envtl. Ct., October 15, 2001). An adjacent property owner can potentially be affected by the 

noise, traffic, and use of an applicant= s property, sufficiently to qualify for standing, regardless 

of whether the evidence in the case bears out those concerns. In particular, in a case such as this 

one under ' 320.14, a finding that the proposed use will not be detrimental to adjoining land uses 

is a threshold determination that must be made before the application can be considered for 

conditional use approval. Accordingly, Appellee-Applicant= s motion to dismiss is DENIED; 

Appellants have standing under 24 V.S.A. ' 4464(b)(3) to bring this appeal.

The parties seek summary judgment on whether the proposed uses are allowed to be considered 

for conditional use approval as uses similar to permitted or conditional uses under ' 320.14. This 

requires a finding that the use is A of the same general character@ as the listed permitted or 

conditional uses for the district, together with a finding that the use A will not be detrimental@ to 

the adjoining land uses or the other uses in the district. Like the merits of the conditional use 

application, the question of whether any of the proposed uses will be detrimental is disputed 

question of fact that must be reserved to the hearing on the merits. On the other hand, the 

determination of whether the proposed uses are of the same general character as the listed 

permitted or conditional uses is suitable for determination on summary judgment. We take each 

proposed use in turn, including the conditions Appellee-Applicant appears to propose to accept 

in connection with each proposed use.

Short-term housing for visiting scholars and interns

The relevance of the proposed use as being for visiting A scholars@ is not the level of their 

scholarship, but their connection to the function and purpose of the owner of the house, that is, 

the Museum. The use of the house, including the servants= wing, for short-term housing for a 

limited number of visiting scholars and museum interns is of the same general character as the 

single-family use of a very large historic house for its invited guests, plus its use as a fourbedroom bed and breakfast, so long as a member of the museum staff resides on the premises at 

any time that any visiting scholars or interns are in residence. It is also of the same general 

character as a > private guest house= (' 1810.33), an accessory use to a single-family dwelling 

under ' 310.6, although the former servants= wing is not a detached structure. Any limitations on 
the numbers of visiting guest scholars, museum interns, or museum staff, or on the numbers and 

types of meals served to them during their accommodation, should be clarified in the application 

before this Court as well as being specified as a condition if conditional use approval for that use 

were to be granted.

Prospective donor and trustee entertainment and accommodation

Similarly, the use of the house for meetings, events and accommodation for a limited number of 

museum trustees, or prospective trustees or donors, is of the same general character as the singlefamily use of a very large historic house for its invited guests, plus its use as a four-bedroom bed 

and breakfast, so long as a member of the museum staff resides on the premises at any time that 

any visiting trustees or donors are in residence. It is also of the same general character as a >

private guest house= (' 1810.33), an accessory use to a single-family dwelling under ' 310.6, 

although the bedrooms proposed to be so used are not in a detached structure. Any limitations on 

the numbers of visiting guest trustees or donors, or on the numbers and types of meals served to 

them during their accommodation, or on the nature of the events to take place for them on 

premises, should be clarified in the application before this Court as well as being specified as a 

condition if conditional use approval for that use were to be granted. 

Tours of the Brick House

The proposed tours to occur only during July and August, one time per day on weekdays and 

twice per day on weekends, by a group of up to 15 visitors brought to the property in a single 

vehicle are of the same general character as an accessory use to the single-family use of a very 

large historic house, which may open the house to a garden tour or a house tour on such a basis. 

Any limitations on the frequency, time of day, time of year, number of visitors per tour, number 

of museum employees on premises to handle the tour, or on any refreshments served to them 

during the tours, should be clarified in the application before this Court as well as being specified 

as a condition if conditional use approval for that use were to be granted. 

Weekly rental of the two-bedroom apartment

The rental of the caretaker= s apartment5qualifies as a conditional use, under ' 320.3, as it is a 

second but attached dwelling in a structure built before 1981. It is also of the same general 

character as an accessory apartment under ' 320.13, so long as a member of the museum staff 

resides on the main house premises at any time that the two-bedroom apartment is in rental use. 

Any limitations on the numbers or tenure of the tenants of this apartment should be clarified in 

the application before this Court as well as being specified as a condition if conditional use 

approval for that use were to be granted. 

Unlimited rental of the property for corporate meetings or private events such as weddings for 

fewer than 150 people, plus up to 12 events annually for greater than 150 people

Unlike the other proposed uses, the unlimited rental of the property to persons or entities 

unrelated to the Museum owner, for corporate meetings or private events such as weddings for 

fewer than 150 people, together with its rental for up to twelve events annually for greater than 
150 people, is a use on a scale larger than the general character of any of the permitted or 

conditional uses. It is true that the single-family use of a very large historic house for its invited 

guests could involve corporate or non-profit board meetings in which the owner has an interest, 

as well as large weddings and other social events. But Appellee-Applicant has not proposed a 

reasonable number of such events shown to be consistent with its use as a large historic singlefamily house. Nor has Appellee-Applicant shown that the rental of the house to unrelated entities 

is of the same general character as would be its use for corporate meetings and social events 

related to the owner. Material facts are in dispute as to whether the volume of meetings and 

social events proposed, and the rental nature of those events, are of the > same general character=

as such uses by the residents of a very large historic single-family house.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that both 

motions for summary judgment are GRANTED in PART and DENIED in PART. AppelleeApplicant= s proposed uses of the Brick House for 1) short-term housing for visiting scholars and 

interns; 2) tours during July and August, one time per day on weekdays and twice per day on 

weekends, by a group of up to 15 visitors brought to the property in a single vehicle; 3) 

accommodation and entertainment of Museum trustees and prospective donors; and 4) rental of 

the two-bedroom apartment; are all of the same general character as permitted or conditional 

uses in the district, under ' 320.14(1), and may proceed in the present appeal to a hearing on the 

merits of whether such uses will be detrimental under ' 320.14(2) and whether they otherwise 

meet the conditional use standards of ' 1610.

Summary judgment is denied as to whether Appellee-Applicant= s proposed use of the Brick 

House for unlimited rental of the property for corporate meetings or private events such as 

weddings for fewer than 150 people, plus rental for up to twelve larger such events annually for 

greater than 150 people, is of the same general character as any of the permitted or conditional 

uses in the district, under ' 320.14(1). This ruling is without prejudice6to whether some more 

restricted proposal to use the Brick House for such events could potentially qualify under '

320.14(1).

Summary judgment is denied on of whether any of the proposed uses will be detrimental under '

320.14(2), as material facts are in dispute. We will hold a telephone conference on Friday, 

November 16, 2001, at 4:30 p.m. to schedule the hearing on the merits of this application and to 

determine whether Appellee-Applicant will be filing any additional applications with the ZBA.

Done at Barre, Vermont, this 13th day of November, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 Appellants appear to dispute whether these 20 bedrooms include or are additional to the 13 

bedrooms in the servants’ wing.

2.

 The number of additional acres, and their frontage, would determine whether the property 

ever could have qualified as a conforming Rural Mixed Use PUD, depending upon when

§1640.2(D) took effect and when the remaining acreage and buildings were conveyed.

3.

 We note that Appellee-Applicant has not requested approval of any of the proposed uses of 

the Brick House property under §1620.1(1), either as a continuation of a preexisting 

nonconforming large historic house use; or as a continuation of a preexisting Rural Mixed Use 

PUD, nonconforming as to acreage and frontage. Any such approval would have to be submitted 

to the ZBA in the first instance, before it could be considered by this Court. In any event, in the 

present motions the parties have not supplied the successive zoning regulations, nor have the 

parties supplied sufficient facts regarding the uses made of the property between Mrs. Webb’s 

death in 1960, its transfer to the Museum in 1986, and Mr. Webb’s death in 2000, from which 

the Court could determine whether any of the proposed uses qualified as pre-existing 

nonconforming uses during that period. 

4.

 Several other uses of the property appear to be contemplated by Appellee-Applicant, but 

were not explicitly laid out in the application. The application does not request approval for 

museum staff to live at the Brick House on either a short-term or a long-term basis; however, the 

ZBA decision finds that “museum staff and interns” will occupy the former servants’ wing. The 

application also does not mention conducting museum-related seminars in art history at the Brick 

House, but that use is referred to in the October 12, 2000 Planning Commission minutes, page 5. 

5.

 The materials mention that this rental might be in conjunction with the use of the adjacent 

Shelburne Farms property. They also refer to Shelburne Farms as a Rural Mixed Use PUD. Any 

application for this use or any of these uses as part of the Shelburne Farms PUD would have to 

be the subject of a different application before the ZBA.

6.

 It is also, as noted above, without prejudice to consideration of such events as a 

continuation of a preexisting nonconforming use under §1620.1 or to application for such events 

as changes to a preexisting nonconforming use under §1620.1(1).