STATE OF VERMONT ENVIRONMENTAL COURT
} In Re: Application of James Garilli } Docket No. 244‐11‐05 Vtec d/b/a Millbrook Auto } }
Decision and Order on Appellant’s Motion for Summary Judgment
This matter concerns an appeal by Applicant James Garilli from the decision of
the Town of Waitsfield (Town) Zoning Board of Adjustment (ZBA), denying a
conditional use permit to construct a building of commercial storage units in the
Town’s Irasville Village zoning district. Appellant‐Applicant is represented by Alan
Solomon, Esq.; the Town is represented by Joseph S. McLean, Esq.
The Town of Waitsfield filed a motion for summary judgment, and Appellant‐
Applicant (hereinafter referred as Applicant) has filed a cross‐motion for summary
judgment in conjunction with his memorandum in opposition to the Town’s motion.
The pending motions seek summary judgment on all the issues presented in
Applicant’s Statement of Questions, which are summarized as follows:
a. Did the ZBA err in not expressly permitting Applicant to build the commercial
storage units as proposed which in effect had a second story?
b. Did the ZBA err when it defined “two‐story” without a need for statutory
construction even though the history and purpose of the Town of Waitsfield’s
bylaws did not include a definition for such word and its bylaws purports to
restrict other types of development?
c. Did the ZBA err in not considering the purpose section of the Irasville Village
zoning district when evaluating Applicant’s proposed storage units?
d. Did the ZBA err when finding that the words “two” and “story” were clear and
that there was no need for statutory construction? e. Did the ZBA err in not taking into consideration the location of Applicant’s
property, which is in an industrial/commercial area although located within the
Irasville Village District, which Applicant’s property is not geared to and did it
consider that a full two‐story footprint would prohibit small‐scale commercial
development/expansion and light industrial expansion as well as create traffic
impact?
Factual Background
For purposes of our analysis of each party’s motion, any facts in dispute are
viewed in a light most favorable to the non‐moving party. Toys, Inc. v. F.M. Burlington
Co., 155 Vt. 44, 48 (1990). The following facts are undisputed unless otherwise noted:
1. Applicant owns approximately two acres of land at 40 Vermont Route 17
in the Town’s Irasville Village District. Applicant’s property is bounded on the west,
south, and southeast by Route 17 and borders the Waitsfield‐Fayston town line to the
west and northwest. The parcel is in the form of a shallow trapezoid, two sides of
which are segments of adjoining roadway. Mill Brook flows through Applicant’s
property from north to south, roughly following Route 17 to the west, but the brook
flows under a bridge on Route 17 on the southerly end of the property. While the
majority of Applicant’s property is easterly of Mill Brook, a section of the property sits
between Mill Brook and Route 17 to the west. The southerly end of that portion of
Applicant’s parcel west of Mill Brook is located northerly of the intersection of Route 17
and Dana Hill Road.
2. Applicant’s property is currently improved with two structures easterly of
Mill Brook: an existing 50’ x 52’, two‐bay automobile service garage, known as
Millbrook Auto, which is roughly in the middle of the easterly portion of the parcel (to
the east of Mill Brook), and a 30’ x 30’ private “barn” near the southerly end of the
property also east of Mill Brook. Freeman G. White owns the adjoining property to the
north and east and uses it as a commercial liquid petroleum business.
2 3. On June 3, 2005, Applicant sought conditional use approval to construct a
5,040 square‐foot, 280’ x 18’, building containing 28 mini‐storage units, each being
10’ x 18’. The easterly‐most unit is numbered Unit 1 and the westerly‐most unit is
numbered Unit 28.
4. Though most of the storage units will be one story, Applicant proposed
extending a roof from the existing service station garage northward over the parking
area and internal driveway to create a two‐story façade over 5 of the 28 units. The
remaining units will all be a single story, and all proposed units would be constructed
with a hip roof and a wood front façade.
5. The proposed storage units qualify as a conditional use under the
Warehouse/Storage category of the Town’s Bylaws. See Bylaws Tbl. 2.03(C)(34). The
dimensional standards for a conditional use in the Irasville Village District, however,
require a minimum building height of “two stories above grade (excluding accessory
structure[s] not greater than 600 square feet).” Bylaws Tbl. 2.03(D).
6. In conjunction with his application, Applicant initially submitted a site
plan entitled “Proposed Site Plan for Storage Units,” Sheet S‐1. The site plan depicts the
location and design of the storage units, parking, landscaping, and other buildings on
the site, including an existing barn, and “existing commercial garage,” as well as an
“existing maintenance garage” on the adjacent property to the northeast. Applicant’s
original site plan also depicted a small, two‐story garage/storage structure on the
easterly side of the building as part of Units 1 and 2. This two‐story addition on top of
Units 1 and 2 appears to have been ambulatory in the sense that Applicant proposed a
concept drawing depicting multiple potential locations for the second story addition.
7. In a subsequent hearing on September 27, 2005, Applicant submitted a
revised site plan depicting a hand‐drawn, two‐story roof extension, which would
extend northerly from the existing service station garage, over the parking area, to
3 create a second story over Units 15 through 19, roughly in the middle of the commercial
storage structure.
8. In a written decision on October 25, 2005, the ZBA denied Applicant’s
Application for failing to comply with § 5.03(D)(2)(b) and Table 2.03(D) of the Zoning
Bylaws.
Discussion
The primary issues raised in this appeal and in the parties’ cross‐motions for
summary judgment pertain to whether the “minimum building height” of two stories
applies to all buildings in the Irasville Village District, and whether the Zoning Bylaws’
reference to a minimum building height of two stories is ambiguous, requiring the
Court to look outside the Bylaws to evidence that may assist the Court in interpreting
the minimum height requirement. Applicant also suggests that the ZBA’s denial of the
conditional use approval was arbitrary because its proposed partial second story plan is
consistent with the scaling and massing requirements of the Irasville Village District
and the coordinated growth intended by the Planning Commission as contemplated in
the purpose statement of the Irasville Village District, see Bylaws Tbl. 2.03(A). For the
reasons more particularly stated below, the Court finds no genuine issue of material fact
in this matter and declines to adopt Applicant’s suggestion that the Zoning Bylaws’ use
of the term “two story” is ambiguous.
The Zoning Bylaws list the use of “warehouse/storage” as a conditional use in
Irasville Village District. Bylaws Tbl. 2.03(C)(34). The purpose of the Irasville Village
District is “to function as the town’s growth center as defined in the Waitsfield Town
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STATE OF VERMONT ENVIRONMENTAL COURT
} In Re: Application of James Garilli } Docket No. 244‐11‐05 Vtec d/b/a Millbrook Auto } }
Decision and Order on Appellant’s Motion for Summary Judgment
This matter concerns an appeal by Applicant James Garilli from the decision of
the Town of Waitsfield (Town) Zoning Board of Adjustment (ZBA), denying a
conditional use permit to construct a building of commercial storage units in the
Town’s Irasville Village zoning district. Appellant‐Applicant is represented by Alan
Solomon, Esq.; the Town is represented by Joseph S. McLean, Esq.
The Town of Waitsfield filed a motion for summary judgment, and Appellant‐
Applicant (hereinafter referred as Applicant) has filed a cross‐motion for summary
judgment in conjunction with his memorandum in opposition to the Town’s motion.
The pending motions seek summary judgment on all the issues presented in
Applicant’s Statement of Questions, which are summarized as follows:
a. Did the ZBA err in not expressly permitting Applicant to build the commercial
storage units as proposed which in effect had a second story?
b. Did the ZBA err when it defined “two‐story” without a need for statutory
construction even though the history and purpose of the Town of Waitsfield’s
bylaws did not include a definition for such word and its bylaws purports to
restrict other types of development?
c. Did the ZBA err in not considering the purpose section of the Irasville Village
zoning district when evaluating Applicant’s proposed storage units?
d. Did the ZBA err when finding that the words “two” and “story” were clear and
that there was no need for statutory construction? e. Did the ZBA err in not taking into consideration the location of Applicant’s
property, which is in an industrial/commercial area although located within the
Irasville Village District, which Applicant’s property is not geared to and did it
consider that a full two‐story footprint would prohibit small‐scale commercial
development/expansion and light industrial expansion as well as create traffic
impact?
Factual Background
For purposes of our analysis of each party’s motion, any facts in dispute are
viewed in a light most favorable to the non‐moving party. Toys, Inc. v. F.M. Burlington
Co., 155 Vt. 44, 48 (1990). The following facts are undisputed unless otherwise noted:
1. Applicant owns approximately two acres of land at 40 Vermont Route 17
in the Town’s Irasville Village District. Applicant’s property is bounded on the west,
south, and southeast by Route 17 and borders the Waitsfield‐Fayston town line to the
west and northwest. The parcel is in the form of a shallow trapezoid, two sides of
which are segments of adjoining roadway. Mill Brook flows through Applicant’s
property from north to south, roughly following Route 17 to the west, but the brook
flows under a bridge on Route 17 on the southerly end of the property. While the
majority of Applicant’s property is easterly of Mill Brook, a section of the property sits
between Mill Brook and Route 17 to the west. The southerly end of that portion of
Applicant’s parcel west of Mill Brook is located northerly of the intersection of Route 17
and Dana Hill Road.
2. Applicant’s property is currently improved with two structures easterly of
Mill Brook: an existing 50’ x 52’, two‐bay automobile service garage, known as
Millbrook Auto, which is roughly in the middle of the easterly portion of the parcel (to
the east of Mill Brook), and a 30’ x 30’ private “barn” near the southerly end of the
property also east of Mill Brook. Freeman G. White owns the adjoining property to the
north and east and uses it as a commercial liquid petroleum business.
2 3. On June 3, 2005, Applicant sought conditional use approval to construct a
5,040 square‐foot, 280’ x 18’, building containing 28 mini‐storage units, each being
10’ x 18’. The easterly‐most unit is numbered Unit 1 and the westerly‐most unit is
numbered Unit 28.
4. Though most of the storage units will be one story, Applicant proposed
extending a roof from the existing service station garage northward over the parking
area and internal driveway to create a two‐story façade over 5 of the 28 units. The
remaining units will all be a single story, and all proposed units would be constructed
with a hip roof and a wood front façade.
5. The proposed storage units qualify as a conditional use under the
Warehouse/Storage category of the Town’s Bylaws. See Bylaws Tbl. 2.03(C)(34). The
dimensional standards for a conditional use in the Irasville Village District, however,
require a minimum building height of “two stories above grade (excluding accessory
structure[s] not greater than 600 square feet).” Bylaws Tbl. 2.03(D).
6. In conjunction with his application, Applicant initially submitted a site
plan entitled “Proposed Site Plan for Storage Units,” Sheet S‐1. The site plan depicts the
location and design of the storage units, parking, landscaping, and other buildings on
the site, including an existing barn, and “existing commercial garage,” as well as an
“existing maintenance garage” on the adjacent property to the northeast. Applicant’s
original site plan also depicted a small, two‐story garage/storage structure on the
easterly side of the building as part of Units 1 and 2. This two‐story addition on top of
Units 1 and 2 appears to have been ambulatory in the sense that Applicant proposed a
concept drawing depicting multiple potential locations for the second story addition.
7. In a subsequent hearing on September 27, 2005, Applicant submitted a
revised site plan depicting a hand‐drawn, two‐story roof extension, which would
extend northerly from the existing service station garage, over the parking area, to
3 create a second story over Units 15 through 19, roughly in the middle of the commercial
storage structure.
8. In a written decision on October 25, 2005, the ZBA denied Applicant’s
Application for failing to comply with § 5.03(D)(2)(b) and Table 2.03(D) of the Zoning
Bylaws.
Discussion
The primary issues raised in this appeal and in the parties’ cross‐motions for
summary judgment pertain to whether the “minimum building height” of two stories
applies to all buildings in the Irasville Village District, and whether the Zoning Bylaws’
reference to a minimum building height of two stories is ambiguous, requiring the
Court to look outside the Bylaws to evidence that may assist the Court in interpreting
the minimum height requirement. Applicant also suggests that the ZBA’s denial of the
conditional use approval was arbitrary because its proposed partial second story plan is
consistent with the scaling and massing requirements of the Irasville Village District
and the coordinated growth intended by the Planning Commission as contemplated in
the purpose statement of the Irasville Village District, see Bylaws Tbl. 2.03(A). For the
reasons more particularly stated below, the Court finds no genuine issue of material fact
in this matter and declines to adopt Applicant’s suggestion that the Zoning Bylaws’ use
of the term “two story” is ambiguous.
The Zoning Bylaws list the use of “warehouse/storage” as a conditional use in
Irasville Village District. Bylaws Tbl. 2.03(C)(34). The purpose of the Irasville Village
District is “to function as the town’s growth center as defined in the Waitsfield Town
Plan, to enable coordinated expansion of residential development, shopping facilities,
and other commercial uses that minimize traffic impacts, and which concentrate
development into a more compact village setting.” Id. at Tbl. 2.03(A). The District’s
dimensional standards provide that the “Minimum Building Height” shall be “two
4 stories above grade (excluding accessory structure[s] not greater than 600 square feet).”
Id. at Table 2.03(D).
Bylaws § 5.03(D)(2)(b) governs conditional use review, and authorizes the ZBA
to impose specific conditions based on a finding that certain factors are applicable “due
to site conditions and/or the scale and intensity of the proposed use,” including:
2. Design and Location of Structures. The design and location of structures will be compatible with their proposed setting and context, as determined in relation to zoning district objectives and standards under Article II. A design or visual impact analysis may be required to identify potential adverse impacts and appropriate mitigation measures. Specific standards shall apply to the following districts…
b. In the Irasville Village District, development should be designed to establish a defined streetscape, characterized by an interconnected network of streets bounded by a combination of sidewalks, street trees and consistent building setbacks, as opposed to large‐scale buildings surrounded by expansive parking areas. Buildings shall be a minimum of two stories and should reflect a diversity of building scale and massing. Excessively large, monolithic buildings should be avoided, or the scale and massing reduced through varied roof lines and interruption to the building elevation (façades) to create attached, but separate masses.
Id. § 5.03(D)(2)(b) (emphasis added).
Thus the principal issue for our consideration is whether Applicant’s proposed
storage building meets the provisions of the Zoning Bylaws requiring a “minimum
building height” of two stories above grade.
We interpret zoning ordinances 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).
5 The Zoning Bylaws define “building height” in part as “[t]he height measured
from the highest point on the top of a structure vertically to the lowest point of the
finished grade at the foundation.” Bylaws § 7.02. The Bylaws also define “story” as,
“that portion of a building, other than a basement, included between the surface of any
floor and the surface of the next floor or ceiling above it. For the purposes of these
regulations, a basement shall be counted as a story if the front exterior wall of the
basement is a minimum of 50% above the finished grade.” Id.
Applicant asks us to declare that the Zoning Bylaws’ use of the term “two story”
as a minimum building height is ambiguous, as that term is undefined by the Bylaws.
We reject Applicant’s claim. Bylaws § 7.02 clearly and simply defines the word “story.”
Bylaws Table 2.03(D) unequivocally imposes a “minimum building height” of two
stories above grade. Moreover, Bylaws § 5.03(D)(2)(b) directs that “[b]uildings shall be
a minimum of two stories.” Thus, Applicant must construct a building with a
minimum of two sets of stories, defined as being “that portion of a building, other than
a basement, included between the surface of any floor and the surface of the next floor
or ceiling above it.” See Bylaws § 7.02.
Applicant’s contention that the number “two” is ambiguous, while creative, is
not worthy of serious consideration. It is difficult to imagine a definition for “two”
other than one plus another one, as the Town succinctly argues and Bylaws illustrate.
Thus, for the ZBA to issue a conditional use approval, Applicant must comply
with the “minimum building height” requirements in the Irasville Village District of
“two stories above grade.”
Even viewing the facts in a light most favorable to the Applicant, we cannot say
that their proposed storage building satisfies the two‐story requirement of the Zoning
Bylaws. Applicant would have us hold that their creation of a second story over
6 approximately 18% of their proposed structure satisfies the Bylaws.1 In light of the
Bylaws statement that “buildings shall be a minimum of two stories” in the Irasville
Village District, Bylaws § 5.02(D)(2)(b) (emphasis added), we cannot see how the Bylaw
can be interpreted to permit a second story over only a portion of a proposed building.
If the Town intended to allow buildings that have only a partial second story in the
Irasville Village District, the Bylaws could have been so drafted and adopted.
However, here the Town adopted Bylaws that unambiguously require a minimum
building height of two stories. Applicant proposed a one‐story structure with a second
story over 18% of the project. Applicant’s proposal is therefore insufficient to satisfy the
minimum required building height in the Irasville Village District.
Recognizing that the purpose of the Irasville Village zoning district to
“concentrate development into a more compact village setting,” Bylaws Tbl. 2.03(A),
Applicant argues that because Applicant’s lot is situated on the periphery of the zoning
district and not in the “village” portion of the district, the two‐story minimum building
height should be ruled inapplicable. We do not find any language in the Bylaw that
provides the ZBA in the first instance or this Court on appeal with the discretion to
disregard the two‐story minimum height requirement.
The location of Applicant’s property on the edge of the Irasville Village District
does not change the fact that Applicant’s project is in that particular zoning district and
must comply with the requirements for that district as enumerated in Bylaws Table
2.03. Moreover, Applicant’s reliance on the “Purpose” section of the zoning ordinance
is misplaced as, “the purpose statement of the bylaws has no direct regulatory effect.”
1 Five of the twenty‐eight storage units, all similarily sized, are proposed to be covered by a second story; therefore since the proposed building is composed entirely of the twenty‐eight storage units, 18% of the proposed building will have a second story.
7 In re Meaker, 156 Vt. 182, 185 (1992). Therefore, without obtaining a variance,2
Applicant cannot exempt their project from the requirements of their zoning district,
including the minimum building height of two stories, simply because their project is
located on the edge of, but still within the Irasville Village District.
Lastly, we decline to address Applicant’s arguments regarding the effect of the
minimum building height requirement on the economic viability of the proposed
project, nor will we address the potential practical impossibility of applying the two‐
story minimum building height requirement to certain conditional uses in the Irasville
Village District. In the absence of any provisions to the contrary, the Town’s Zoning
Bylaws do not permit the ZBA below, or this Court on appeal, to consider the potential
economic viability of a proposed project. Nor is this Court allowed to address issues
relating to certain use categories not properly presented by the application appealed
from. Here we are mindful of the directive from our Supreme Court that:
[t]he [Environmental Court], on review of a zoning board or planning commission decision, is acting within its proper role when it decides questions that have been formulated in the local approval process and which divide the parties. It is beyond its role as an appellate tribunal, even under a de novo review standard, to start addressing new issues never presented to the planning commission and on which interested persons have not spoken in the local process.
In re Maple Tree Place, 156 Vt. 494, 500 (1991).
As Applicant’s use was properly reviewed below as the allowed conditional use
of “Warehouse/Storage,” we decline to address factors not required by the Zoning
Bylaws and other uses outside the matter presented to us on appeal.
2 We do not offer any opinion on whether a variance could be obtained in this case, as that question is not before the Court. We note only that, absent a variance, the proposed development must comply with the district requirements.
8 Accordingly, based on the foregoing, it is herby ORDERED and ADJUDGED
that the Town’s motion for summary judgment is GRANTED and Applicant’s cross‐
motion for summary judgment is DENIED, as the Zoning Bylaws require a structure to
meet a minimum building height of at least two complete stories above grade in the
Irasville Village District.
This decision appears to resolve all of the issues presented by Applicant’s
Statement of Questions. However the Court will still conduct the previously scheduled
telephone conference on Thursday, May 4, 2006, to discuss the remaining issues to be
heard at trial. The trial currently scheduled for May 11, 2006, at the Vermont
Environmental Court in Berlin, and the 8:30 A.M. site visit are hereby cancelled, unless
good cause is presented at the May 4th telephone conference as to what judiciable issues
remain in this appeal.
Done at Berlin, Vermont, this 3rd day of May, 2006.
______________________________________________ Thomas S. Durkin, Environmental Judge