STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Bennington } Docket No. 57-4-04 Vtec Motor Car, Inc., et al } }
Decision and Order on Cross-Motions for Summary Judgment
Appellant-Applicants Bennington Motor Car, Inc., Michael Hernandez, and Robert
Bearor (collectively, Bennington Motor Car) appeal from two Bennington Development Review
Board (DRB) decisions, both dated March 2, 2004. One DRB decision upheld the Zoning
Administrator’s decision to deny Bennington Motor Car’s zoning permit application for the
expansion of a new and used car dealership and service facility onto a contiguous, undeveloped
lot. Another DRB decision granted site plan approval, with conditions, for the same project.
Bennington Motor Car is represented by A. Jay Kenlan, Esq.; the Town is represented by Robert
E. Woolmington, Esq. The Town and Bennington Motor Car both have filed motions for
summary judgment.
The sole issue now before the Court on summary judgment is whether the car sales and
service facility proposal presents a “new” nonconforming use, prohibited under section 8.11(5)
of the Bennington Zoning Bylaw, or an expansion of a “pre-existing” nonconforming use,
permitted under section 8.11(3) of the Zoning Bylaw. Background
The following facts are undisputed unless otherwise noted.
1. Bennington Motor Car is an existing new and used car sales and service facility
located on Route 7 in Bennington.
2. The Bennington Motor Car property is located in Bennington’s Rural Residential
zoning district, and falls within the Route 7 Corridor Overlay. Car sales and service facilities are
not an allowed use within the Rural Residential zoning district.
3. Bennington Motor Car and previous, similar businesses have operated at the present
Bennington Motor Car site continuously since before the enactment of the Zoning Bylaw which
disallows the relevant uses in the Rural Residential zoning district.
4. On its present site, Bennington Motor Car’s sales and service facility is a pre-existing,
nonconforming use.
5. Adjacent to the Bennington Motor Car site, in the same zoning district, is a 2.4 acre,
undeveloped parcel owned by Appellant-Applicant Robert Bearor.
6. Bennington Motor Car has agreed to purchase the Bearor lot with the intention of
expanding its current sales and service facility onto that lot.
7. Bennington Motor Car filed a zoning permit application, along with a site plan, on
October 28, 2003, proposing to expand Bennington Motor Car=s parking area onto the Bearor lot
and to construct an additional interior driveway, with associated site work, landscaping, and
lighting on both lots. 8. Under the regulations, a “new” nonconforming use is prohibited under section 8.11(5)
of the Zoning Bylaw, but a “pre-existing” nonconforming use may be “expand[ed]” under
section 8.11(3), subject to review and DRB approval.
9. The Administrative Officer denied the application, indicating that the proposed project
would create a “new” nonconforming use, prohibited by section 8.11(5). Bennington Motor Car
appealed that decision to the DRB.
10. On March 2, 2004, the DRB denied Bennington Motor Car’s appeal by written
decision in which it specifically found that the proposed development would constitute a “new”
nonconforming use, prohibited under section 8.11(5). The DRB did not make findings as to
whether the proposal should be approved as an expansion of a pre-existing, nonconforming use
pursuant to section 8.11(3). However, the DRB did approve the site plan, with conditions.
11. Bennington
class=Section2> Motor Car appealed to this Court the DRB’s zoning permit denial as well as certain site plan
conditions.
Discussion
The sole issue is whether the proposed project is a “new” nonconforming use prohibited
by section 8.11(5), or is an expansion of a “pre-existing,” nonconforming use allowed with DRB
approval under section 8.11(3). Bennington Motor Car makes a plain language argument that its
proposal falls under section 8.11(3) because it currently is a “pre-existing nonconforming use,”
and proposes, literally, to expand. The Town argues that the proposal creates a “new”
nonconforming use because it introduces a pre-existing, nonconforming use to a lot that
previously conformed to the regulations. Zoning regulations are interpreted according to the general rules of statutory construction.
In re Weeks, 167 Vt. 551, 554 (1998). Thus, we first look to the plain meaning of the
ordinance. In re Stowe Club Highlands, 164 Vt. 272, 279 (1995). If the plain meaning “resolves
the conflict without doing violence to the legislative scheme, there is no need to go further.”
Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986).
It is undisputed that Bennington Motor Car’s sales and service facility is a pre-existing,
nonconforming use. Vermont law does not mandate any one particular approach to the
regulation of nonconforming uses. See 24 V.S.A §4408(b)(2) (authorizing municipalities to
regulate the extension or expansion of nonconforming uses). Instead, a municipality’s zoning
regulations determine the specific method for the regulation of nonconforming uses. In re
Appeal of Casella Waste Managment, 2003 VT 49, & 10-11, 175 Vt. 335. Indeed, approaches
to the regulation of the extension or expansion of nonconforming uses have varied, ranging from
outright prohibition to permission with approval. See generally, e.g., Casella, 2003 VT 49
(prohibiting the extension or expansion of nonconforming uses, except with ZBA approval);
Franklin County v. City of St. Albans, 154 Vt. 327 (1990) (permitting the extension of
nonconforming uses with zoning board approval); De Witt v. Brattleboro Zoning Board of
Adjustment, 128 Vt. 313 (1970) (prohibiting the extension or enlargement of nonconforming
uses).
The Casella precedent appears to be particularly applicable to the expansion proposed
here. In fact, the expansion ultimately allowed in Casella took place, in part, on an undeveloped
adjoining parcel of land. We find this similarity of facts persuasive. Under the Town’s Zoning Regulations here, A[n]o new nonconforming use shall be
created under the variance provisions or any other provision of this Bylaw.@ §8.11(5) (emphasis
added). Section 8.11(3) (emphasis added), on the other hand, states:
No nonconforming use shall be extended or expanded, except with the approval of the [DRB], provided that said [DRB] shall have found that such extension or expansion will have no adverse effect upon the public health, safety, convenience, and upon property values in the vicinity, except in cases where in the opinion of the [DRB], such enforcement would work a hardship on the owner of an established nonconforming use.
Thus, section 8.11(3) expressly allows for the extension or expansion of pre-existing,
nonconforming uses that are approved by the DRB, pursuant to identified criteria, as in Casella.
2003 VT 49, ¶ 1, 175 Vt. 335. Furthermore, neither section makes any distinction relating to
whether a pre-existing, nonconforming use is proposed to expand only on its own lot, as opposed
to expanding onto an adjoining or to-be-merged parcel. That distinction, relied upon by the
Town, does not exist in the regulations. We perceive no basis for reading this distinction into the
regulations, much as the Supreme Court refused to do in Casella. 2003 VT 49, ¶14, 175 Vt. 335.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Bennington } Docket No. 57-4-04 Vtec Motor Car, Inc., et al } }
Decision and Order on Cross-Motions for Summary Judgment
Appellant-Applicants Bennington Motor Car, Inc., Michael Hernandez, and Robert
Bearor (collectively, Bennington Motor Car) appeal from two Bennington Development Review
Board (DRB) decisions, both dated March 2, 2004. One DRB decision upheld the Zoning
Administrator’s decision to deny Bennington Motor Car’s zoning permit application for the
expansion of a new and used car dealership and service facility onto a contiguous, undeveloped
lot. Another DRB decision granted site plan approval, with conditions, for the same project.
Bennington Motor Car is represented by A. Jay Kenlan, Esq.; the Town is represented by Robert
E. Woolmington, Esq. The Town and Bennington Motor Car both have filed motions for
summary judgment.
The sole issue now before the Court on summary judgment is whether the car sales and
service facility proposal presents a “new” nonconforming use, prohibited under section 8.11(5)
of the Bennington Zoning Bylaw, or an expansion of a “pre-existing” nonconforming use,
permitted under section 8.11(3) of the Zoning Bylaw. Background
The following facts are undisputed unless otherwise noted.
1. Bennington Motor Car is an existing new and used car sales and service facility
located on Route 7 in Bennington.
2. The Bennington Motor Car property is located in Bennington’s Rural Residential
zoning district, and falls within the Route 7 Corridor Overlay. Car sales and service facilities are
not an allowed use within the Rural Residential zoning district.
3. Bennington Motor Car and previous, similar businesses have operated at the present
Bennington Motor Car site continuously since before the enactment of the Zoning Bylaw which
disallows the relevant uses in the Rural Residential zoning district.
4. On its present site, Bennington Motor Car’s sales and service facility is a pre-existing,
nonconforming use.
5. Adjacent to the Bennington Motor Car site, in the same zoning district, is a 2.4 acre,
undeveloped parcel owned by Appellant-Applicant Robert Bearor.
6. Bennington Motor Car has agreed to purchase the Bearor lot with the intention of
expanding its current sales and service facility onto that lot.
7. Bennington Motor Car filed a zoning permit application, along with a site plan, on
October 28, 2003, proposing to expand Bennington Motor Car=s parking area onto the Bearor lot
and to construct an additional interior driveway, with associated site work, landscaping, and
lighting on both lots. 8. Under the regulations, a “new” nonconforming use is prohibited under section 8.11(5)
of the Zoning Bylaw, but a “pre-existing” nonconforming use may be “expand[ed]” under
section 8.11(3), subject to review and DRB approval.
9. The Administrative Officer denied the application, indicating that the proposed project
would create a “new” nonconforming use, prohibited by section 8.11(5). Bennington Motor Car
appealed that decision to the DRB.
10. On March 2, 2004, the DRB denied Bennington Motor Car’s appeal by written
decision in which it specifically found that the proposed development would constitute a “new”
nonconforming use, prohibited under section 8.11(5). The DRB did not make findings as to
whether the proposal should be approved as an expansion of a pre-existing, nonconforming use
pursuant to section 8.11(3). However, the DRB did approve the site plan, with conditions.
11. Bennington
class=Section2> Motor Car appealed to this Court the DRB’s zoning permit denial as well as certain site plan
conditions.
Discussion
The sole issue is whether the proposed project is a “new” nonconforming use prohibited
by section 8.11(5), or is an expansion of a “pre-existing,” nonconforming use allowed with DRB
approval under section 8.11(3). Bennington Motor Car makes a plain language argument that its
proposal falls under section 8.11(3) because it currently is a “pre-existing nonconforming use,”
and proposes, literally, to expand. The Town argues that the proposal creates a “new”
nonconforming use because it introduces a pre-existing, nonconforming use to a lot that
previously conformed to the regulations. Zoning regulations are interpreted according to the general rules of statutory construction.
In re Weeks, 167 Vt. 551, 554 (1998). Thus, we first look to the plain meaning of the
ordinance. In re Stowe Club Highlands, 164 Vt. 272, 279 (1995). If the plain meaning “resolves
the conflict without doing violence to the legislative scheme, there is no need to go further.”
Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986).
It is undisputed that Bennington Motor Car’s sales and service facility is a pre-existing,
nonconforming use. Vermont law does not mandate any one particular approach to the
regulation of nonconforming uses. See 24 V.S.A §4408(b)(2) (authorizing municipalities to
regulate the extension or expansion of nonconforming uses). Instead, a municipality’s zoning
regulations determine the specific method for the regulation of nonconforming uses. In re
Appeal of Casella Waste Managment, 2003 VT 49, & 10-11, 175 Vt. 335. Indeed, approaches
to the regulation of the extension or expansion of nonconforming uses have varied, ranging from
outright prohibition to permission with approval. See generally, e.g., Casella, 2003 VT 49
(prohibiting the extension or expansion of nonconforming uses, except with ZBA approval);
Franklin County v. City of St. Albans, 154 Vt. 327 (1990) (permitting the extension of
nonconforming uses with zoning board approval); De Witt v. Brattleboro Zoning Board of
Adjustment, 128 Vt. 313 (1970) (prohibiting the extension or enlargement of nonconforming
uses).
The Casella precedent appears to be particularly applicable to the expansion proposed
here. In fact, the expansion ultimately allowed in Casella took place, in part, on an undeveloped
adjoining parcel of land. We find this similarity of facts persuasive. Under the Town’s Zoning Regulations here, A[n]o new nonconforming use shall be
created under the variance provisions or any other provision of this Bylaw.@ §8.11(5) (emphasis
added). Section 8.11(3) (emphasis added), on the other hand, states:
No nonconforming use shall be extended or expanded, except with the approval of the [DRB], provided that said [DRB] shall have found that such extension or expansion will have no adverse effect upon the public health, safety, convenience, and upon property values in the vicinity, except in cases where in the opinion of the [DRB], such enforcement would work a hardship on the owner of an established nonconforming use.
Thus, section 8.11(3) expressly allows for the extension or expansion of pre-existing,
nonconforming uses that are approved by the DRB, pursuant to identified criteria, as in Casella.
2003 VT 49, ¶ 1, 175 Vt. 335. Furthermore, neither section makes any distinction relating to
whether a pre-existing, nonconforming use is proposed to expand only on its own lot, as opposed
to expanding onto an adjoining or to-be-merged parcel. That distinction, relied upon by the
Town, does not exist in the regulations. We perceive no basis for reading this distinction into the
regulations, much as the Supreme Court refused to do in Casella. 2003 VT 49, ¶14, 175 Vt. 335.
The Town argues that our interpretation of the Zoning Bylaw renders an absurd result,
essentially because the Town review standards in section 8.11(3) are less stringent than those
applicable to commercial uses in the Town’s Commercial zoning district. That is, it would be
easier to obtain a zoning permit for the extension or expansion of a nonconforming commercial
use than for a permitted commercial use. Even if that were the result, it would not be an absurd
one. The Town is free to regulate nonconforming uses as it pleases. However, that result is not
necessitated by our interpretation. Section 8.11(3) explicitly provides that approval is contingent upon the DRB “hav[ing]
found that such extension or expansion will have no adverse effect upon the public health, safety,
convenience, and upon property values in the vicinity.” For our analysis, it is not necessarily
relevant whether a similar or different outcome is reached under section 8.11(3) or section 6.0
(i.e., the performance standards for permitted commercial uses).
Finally, the Town argues that a generally applicable portion of section 8.11 prohibits the
proposed expansion. That portion states that “any [nonconforming] building . . . which was
designed, arranged, intended for or devoted to a non-conforming use, may be reconstructed and
structurally altered, and the non-conforming use therein changed.” §8.11. The Town contends
that the word “therein” in this language restricts the current proposal. However, the proposed
project does not involve the reconstruction or structural alteration of any nonconforming
building. In any event, section 8.11(3) controls because it is more specific than §8.11. See
Stevenson v. Capital Fire Mut. Aid Sys., Inc., 163 Vt. 623, 625 (1995) (mem.) (construing
conflicting statutes that deal with the same subject matter to give effect to the more specific
provision).
Therefore, we conclude that Bennington Motor Car’s proposed project should be
analyzed under section 8.11(3) as an expansion of a “pre-existing” nonconforming use, rather
than under section 8.11(5) as a “new” non-conforming use. Because there are material facts in
dispute as to the merits of Bennington Motor Car’s zoning permit application, we will hold a
telephone conference with the parties to discuss what issues remain in this appeal.
Accordingly, based on the foregoing, it is hereby ordered and adjudged that Bennington
Motor Car’s motion for summary judgment is GRANTED, and the Town’s motion for summary
judgment is DENIED. Done at Berlin, Vermont, this __th day of April, 2005
_________________________________ Thomas S. Durkin, Environmental Judge