STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Murphy Conditional Use Application } Docket No. 134‐6‐06 Vtec (Appeal of Murphy) } } Town of Bakersfield v. Murphy } Docket No. 168‐7‐06 Vtec }
Decision and Order on Cross–Motions for Partial Summary Judgment
In Docket No. 134‐6‐06 Vtec, Appellants Matt and Desiree Murphy appealed from
a decision of the Zoning Board of Adjustment (ZBA) of the Town of Bakersfield, rejecting
their application for a conditional use permit for their motor vehicle repair home business
on the basis that the application that is the subject of the appeal is an impermissible
successive application. In Docket No. 168‐7‐06, the Town filed an enforcement action
against Appellants for the operation of that business. Appellants are represented by Paul
S. Gillies, Esq. and the Town of Bakersfield is represented by Michael S. Gawne, Esq. The
parties have moved for summary judgment on Questions 2, 5, and 8 of the Statement of
Questions. The trial on any issues not resolved by these motions is scheduled for 9:00 a.m.
to 3:00 p.m. on November 30, 2006, at the Franklin Superior Court. The following facts are
undisputed unless otherwise noted.
Appellants own a 10.3‐acre parcel of land, improved with their residence, located
in the Rural zoning district of the Town of Bakersfield. In 2002, Appellants applied for and
received a zoning permit from the Zoning Administrator to build a 32ʹ x 58ʹ garage,1 24 feet
in height, to be used for a “part time business” to be conducted solely by Mr. Murphy, for
1 The original application requested a 32ʹ x 50ʹ garage; the 50‐foot‐dimension was amended to 58 feet and approved in July of 2002.
1 him to work on snowmobiles, all‐terrain vehicles, trucks, cars, and “other small
maintenance things.”
The Zoning Administrator must have treated this application as one to build an
accessory building in which to carry on a home occupation, as those are within the
permitted use categories in this district (for which the Zoning Administrator is authorized
to issue the permit) rather than the conditional use categories for which the application
must be ruled on by the ZBA. The Zoning Administrator did not treat the application as
one requiring conditional use approval, either for the building or for the business. No
party appealed the zoning permit, and it became final.
In March of 2004, , the Zoning Administrator issued a notice of violation asserting
that Appellants were keeping “non‐operative” vehicles and operating an equipment repair
facility on their property without a conditional use permit. The notice of violation gave
Appellants the opportunity to cure the violation by moving the junk vehicles by mid‐May,
and by ceasing operation of the “equipment repair facility” or applying for a conditional
use permit. Both the notice of violation and its cover letter were undated, but the certified
mail receipt reflects that it was delivered on March 3, 2004. The notice of violation advised
Appellants how to appeal the notice of violation to the ZBA within fifteen days, and how
to request a stay, and warned them that the finding of violation would become final unless
the notice of violation was appealed.
On March 10, 2004, Appellants submitted an application for a conditional use permit
and requested a stay2. While Appellants argue that this application should have been
treated as an appeal of the notice of violation, they were advised of how to appeal the
notice of violation as well as to apply for a conditional use permit, yet only the box for
2 The stay was denied by the Zoning Administrator, although the jurisdiction to act on the stay was with the ZBA. However, this denial also was not appealed to the ZBA and became final.
2 “conditional use permit” is checked on the application. The box for “appeal” is not
checked and the ZBA did not treat the application for a conditional use permit as an
appeal. Appellants did not appeal the issuance of the 2004 notice of violation and therefore
they cannot contest the existence of the violations stated in that notice. 24 V.S.A. §4472(d).
The ZBA held a hearing regarding Appellants’ conditional use application and
denied it in a written decision issued on August 5, 2004. The ZBA stated as its reasons for
the denial that “there is a chance that harmful waste may be discharged into a
watercourse,” that “the character of the area would be adversely affected” and that “the
Murphys have been operating for over two years without State required permits.” The
notice of decision informed the Murphys incorrectly that an appeal could be filed in
superior court, rather than environmental court. However, no party filed an appeal in
either court, and the 2004 denial therefore became final. 24 V.S.A. §4472(d).
In early December of 2004, the Town filed an enforcement action against Appellants
in Franklin Superior Court3 (Docket No. S502‐04 Fc), claiming two violations: that
Defendants were operating “a motor vehicle service business” in the Rural zoning district
without having obtained conditional use approval, and that Defendants were storing non‐
operative vehicles visible from the public roads, in violation of §715.1 of the Zoning
Bylaws. According to Appellants, at the suggestion of the presiding judge in the
3 Under the changes to 24 V.S.A. Chapter 117 that took effect on July 1, 2004, actions for enforcement of violations of zoning ordinances may only be brought in environmental court (or the judicial bureau, as appropriate under §1974a), 24 V.S.A. §§4452 and 4451, read together with §1974a; while actions to enforce an order of the ZBA (or other municipal panel) may be brought in environmental court or superior court. 24 V.S.A. §§4470(b). As this complaint only alleged violations of the ordinance, and requested both injunctive relief and civil penalties, it does not appear to have been within the jurisdiction of the superior court at the time it was filed. In any event, this enforcement case was transferred to environmental court at the beginning of 2006, and was assigned Environmental Court Docket Number 2‐1‐06 Vtec.
3 enforcement case then pending in Franklin Superior Court, apparently based on
Appellants’ claim to have resolved some of the issues, Appellants reapplied in May 2005
for conditional use approval of the motor vehicle service use. The ZBA declined to hear
Appellants’ application, citing 24 V.S.A. § 4470(b)4 in its written decision issued on July 15,
2005. That decision contained no findings of fact as to whether any circumstances had
changed that would warrant a successive application, and was not further appealed.
On September 15, 2005, in a conference held in the pending enforcement case in
Franklin Superior Court, the presiding judge’s entry reflects that he suggested that
Appellants “consider filing” a new conditional use permit application “more closely
tailored5 to Town concerns about outside storage.” Appellants applied again on October
4, 2005; the ZBA again issued a decision declining to hear the application on October 7,
2005. That decision again contained no findings of fact as to whether any circumstances
had changed that would warrant consideration of a successive application, that is, whether
the new application addressed the reasons for which the 2004 application was denied.
Appellants appealed the ZBA’s October 2005 decision to this Court in Docket No.
217‐10‐05 Vtec.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Murphy Conditional Use Application } Docket No. 134‐6‐06 Vtec (Appeal of Murphy) } } Town of Bakersfield v. Murphy } Docket No. 168‐7‐06 Vtec }
Decision and Order on Cross–Motions for Partial Summary Judgment
In Docket No. 134‐6‐06 Vtec, Appellants Matt and Desiree Murphy appealed from
a decision of the Zoning Board of Adjustment (ZBA) of the Town of Bakersfield, rejecting
their application for a conditional use permit for their motor vehicle repair home business
on the basis that the application that is the subject of the appeal is an impermissible
successive application. In Docket No. 168‐7‐06, the Town filed an enforcement action
against Appellants for the operation of that business. Appellants are represented by Paul
S. Gillies, Esq. and the Town of Bakersfield is represented by Michael S. Gawne, Esq. The
parties have moved for summary judgment on Questions 2, 5, and 8 of the Statement of
Questions. The trial on any issues not resolved by these motions is scheduled for 9:00 a.m.
to 3:00 p.m. on November 30, 2006, at the Franklin Superior Court. The following facts are
undisputed unless otherwise noted.
Appellants own a 10.3‐acre parcel of land, improved with their residence, located
in the Rural zoning district of the Town of Bakersfield. In 2002, Appellants applied for and
received a zoning permit from the Zoning Administrator to build a 32ʹ x 58ʹ garage,1 24 feet
in height, to be used for a “part time business” to be conducted solely by Mr. Murphy, for
1 The original application requested a 32ʹ x 50ʹ garage; the 50‐foot‐dimension was amended to 58 feet and approved in July of 2002.
1 him to work on snowmobiles, all‐terrain vehicles, trucks, cars, and “other small
maintenance things.”
The Zoning Administrator must have treated this application as one to build an
accessory building in which to carry on a home occupation, as those are within the
permitted use categories in this district (for which the Zoning Administrator is authorized
to issue the permit) rather than the conditional use categories for which the application
must be ruled on by the ZBA. The Zoning Administrator did not treat the application as
one requiring conditional use approval, either for the building or for the business. No
party appealed the zoning permit, and it became final.
In March of 2004, , the Zoning Administrator issued a notice of violation asserting
that Appellants were keeping “non‐operative” vehicles and operating an equipment repair
facility on their property without a conditional use permit. The notice of violation gave
Appellants the opportunity to cure the violation by moving the junk vehicles by mid‐May,
and by ceasing operation of the “equipment repair facility” or applying for a conditional
use permit. Both the notice of violation and its cover letter were undated, but the certified
mail receipt reflects that it was delivered on March 3, 2004. The notice of violation advised
Appellants how to appeal the notice of violation to the ZBA within fifteen days, and how
to request a stay, and warned them that the finding of violation would become final unless
the notice of violation was appealed.
On March 10, 2004, Appellants submitted an application for a conditional use permit
and requested a stay2. While Appellants argue that this application should have been
treated as an appeal of the notice of violation, they were advised of how to appeal the
notice of violation as well as to apply for a conditional use permit, yet only the box for
2 The stay was denied by the Zoning Administrator, although the jurisdiction to act on the stay was with the ZBA. However, this denial also was not appealed to the ZBA and became final.
2 “conditional use permit” is checked on the application. The box for “appeal” is not
checked and the ZBA did not treat the application for a conditional use permit as an
appeal. Appellants did not appeal the issuance of the 2004 notice of violation and therefore
they cannot contest the existence of the violations stated in that notice. 24 V.S.A. §4472(d).
The ZBA held a hearing regarding Appellants’ conditional use application and
denied it in a written decision issued on August 5, 2004. The ZBA stated as its reasons for
the denial that “there is a chance that harmful waste may be discharged into a
watercourse,” that “the character of the area would be adversely affected” and that “the
Murphys have been operating for over two years without State required permits.” The
notice of decision informed the Murphys incorrectly that an appeal could be filed in
superior court, rather than environmental court. However, no party filed an appeal in
either court, and the 2004 denial therefore became final. 24 V.S.A. §4472(d).
In early December of 2004, the Town filed an enforcement action against Appellants
in Franklin Superior Court3 (Docket No. S502‐04 Fc), claiming two violations: that
Defendants were operating “a motor vehicle service business” in the Rural zoning district
without having obtained conditional use approval, and that Defendants were storing non‐
operative vehicles visible from the public roads, in violation of §715.1 of the Zoning
Bylaws. According to Appellants, at the suggestion of the presiding judge in the
3 Under the changes to 24 V.S.A. Chapter 117 that took effect on July 1, 2004, actions for enforcement of violations of zoning ordinances may only be brought in environmental court (or the judicial bureau, as appropriate under §1974a), 24 V.S.A. §§4452 and 4451, read together with §1974a; while actions to enforce an order of the ZBA (or other municipal panel) may be brought in environmental court or superior court. 24 V.S.A. §§4470(b). As this complaint only alleged violations of the ordinance, and requested both injunctive relief and civil penalties, it does not appear to have been within the jurisdiction of the superior court at the time it was filed. In any event, this enforcement case was transferred to environmental court at the beginning of 2006, and was assigned Environmental Court Docket Number 2‐1‐06 Vtec.
3 enforcement case then pending in Franklin Superior Court, apparently based on
Appellants’ claim to have resolved some of the issues, Appellants reapplied in May 2005
for conditional use approval of the motor vehicle service use. The ZBA declined to hear
Appellants’ application, citing 24 V.S.A. § 4470(b)4 in its written decision issued on July 15,
2005. That decision contained no findings of fact as to whether any circumstances had
changed that would warrant a successive application, and was not further appealed.
On September 15, 2005, in a conference held in the pending enforcement case in
Franklin Superior Court, the presiding judge’s entry reflects that he suggested that
Appellants “consider filing” a new conditional use permit application “more closely
tailored5 to Town concerns about outside storage.” Appellants applied again on October
4, 2005; the ZBA again issued a decision declining to hear the application on October 7,
2005. That decision again contained no findings of fact as to whether any circumstances
had changed that would warrant consideration of a successive application, that is, whether
the new application addressed the reasons for which the 2004 application was denied.
Appellants appealed the ZBA’s October 2005 decision to this Court in Docket No.
217‐10‐05 Vtec. In its ruling denying the Town’s motion to dismiss the appeal as an
impermissible successive application, the Court noted that the Town had not taken
evidence as to whether Appellants’ circumstances had changed, to determine whether the
application involved substantially or materially the same facts as the application denied
in August of 2004, and had not made findings of fact, as required by 24 V.S.A. §4470(a).
This Court explained that:
4 The provisions found in §4470(b) under the former statute, are found in §4470(a) in the current statute that took effect on July 1, 2004. 5 Such a new application is not considered to be an impermissible successive application barred by collateral estoppel, if the new application thoroughly addresses all of the specific concerns on which the municipal panel based its earlier denial. See In re Appeal of Armitage, et al., 2006 VT 113, ¶¶4, 5.
4 Governmental bodies, even at the local level, are obligated to deal fairly with the citizens who come before them. While the ZBA’s rejection of Appellants’ application out of hand does not rise to the level of estoppel, see, e.g., In re McDonald’s Corp., 146 Vt. 380, 386 (1985); In re Lyon, 2005 VT 63, ¶31, neither did it meet the requirements of 24 V.S.A. §4470(a) or of the obligation of fair dealing. At the very least, the ZBA should have made factual findings as to why no circumstances had changed sufficiently to warrant consideration of Appellants’ 2005 application. It appears that Appellants will be able to present evidence that their circumstances had changed at least with respect to the risk of discharge into a wetlands, and compliance with state permitting and reporting requirements. Moreover, it was not fair dealing for the Town to bring an enforcement action in 2004 to require Appellants to obtain a conditional use permit for their business, and then to reject out of hand their subsequent application for the required permit.
In re: Murphy Conditional Use Application, Docket No. 217‐10‐05 Vtec, slip op. at 2‐3 (Vt.
Envtl. Ct. Dec. 22, 2005). In that decision, this Court advised the parties that we would
proceed to schedule the trial on the merits of Appellants’ conditional use application, but
advised the parties that the ZBA could request a remand under V.R.E.C.P. 5(i) if it wanted
to reconsider its rejection of the application, either to make the factual findings required
by §4470(a) as to why it was an impermissible successive application, or to consider the
application on its merits. Based on the stipulation of the parties filed in both the appeal
(Docket No. 217‐10‐05 Vtec) and the enforcement action (Docket No. 2‐1‐06 Vtec), this
Court remanded those proceedings.
Appellants reapplied once again for a conditional use permit, which was denied by
the ZBA in a written decision issued on May 17, 2006. Although the ZBA stated that it
could have rejected the application once again as “substantially similar to the issues and
facts raised in the earlier application,” it again did not make any findings as to whether any
facts about the new application had changed regarding the reasons the application had
been denied before, that is, about the potential for discharge of wastes or the project’s effect
on the character of the area.
5 The ZBA proceeded to consider the application on its merits, and denied the
conditional use application on the basis that the property has insufficient acreage, stating
that twelve acres would be necessary to accommodate both the single‐family dwelling,
which requires ten acres, and the motor vehicle and equipment sales and service use, which
requires two acres. With respect to the conditional use standards, the ZBA concluded that
the property as currently developed adversely affects the character of the neighborhood,
but stated conditions that it would impose (presumably to meet those concerns) if there
were sufficient acreage to accommodate both uses. One of those conditions was that an old
bus on the property, apparently being used for storage, must obtain a permit either as an
accessory to the residential (permitted) use, or as accessory to the business (conditional)
use. Appellants appealed that decision to this Court in Docket No. 134‐6‐06 Vtec.
School Bus as a Structure
The parties have moved for summary judgment regarding whether a school bus
located on Appellants’ property is a structure that requires a permit under §202.1.1. The
term ‘structure’ is defined as “[a]nything constructed, erected or placed and which requires
a fixed location on the ground in order to be used. §855. The definition gives examples of
structures, including buildings, as well as “signs, silos, garages, carports, porches, patios,
walls, swimming pools, and other out‐buildings or building features,” and lists the
following features as excluded from the definition: “sidewalks, driveways, fences and
temporary docks or floats.”
Resolution of this issue turns on how the school bus functions, not what it is made
of or what it looks like. See Appeal of Trevor Evans, Docket No. 122‐5‐02 Vtec, slip op. at
3 (Vt. Envtl. Ct., June 30, 2003) (8ʹ x 24ʹ truck trailer with refrigeration unit used for storage);
Appeal of Adams, Docket No. 145‐9‐03 Vtec, slip op. at 4, n.3 (Vt. Envtl. Ct., Mar. 21, 2005)
(trailer portion of tractor‐trailer used for storage). If the bus is used for storage and
6 functions as a structure, it requires a building permit under the Bylaws; if it is being used
as a vehicle, it may not require a permit. The Town’s motion for summary judgment is
therefore GRANTED in part on this issue; however, as material facts are in dispute as to
what is the functional use of the school bus, the motions for summary judgment on this
issue are otherwise DENIED, and this issue remains for trial.
Two principal uses on one property
The Town argues that Appellants do not have sufficient acreage to seek conditional
use approval of their business on the same property as their residence. In the Rural zoning
district, the Bylaws require a ten‐acre lot size for a single‐family residence, and a two‐acre
lot size for a “Motor Vehicle & Equipment Sales & Service” use. All uses and structures
must comply with the dimensional requirements for the relevant district. Bylaws §302.2.
The definition of “principal structure/use” is a “structure, or use, directly involved
with the primary purpose of ownership of a particular lot.” Bylaws §846 (emphasis added).
Appellants do not argue that their residence is not the principal use on the lot. And see
Bylaws §802 (structure used for residence excluded from definition of accessory6). An
“accessory use/structure,” is defined as a “use or structure that is incidental and
subordinate to the principal use or structure located on the same lot, such as patios,
porches, garages, toolsheds, personal [renewable energy] systems and the like.” Bylaws
§802 (emphasis added). Although these sections themselves are written in the singular, the
Bylaws do not contain a separate section specifically prohibiting more than one principal
use on a given lot. However, the definition of a “lot” is “a parcel of land occupied, ... by
only one principal building and its accessory building(s) or use(s).” Bylaws §831 (emphasis
added). Reading these three definitions together, and recognizing that “the paramount
6 This provision may now conflict with 24 V.S.A. §4412(1)(E); however, that statutory section regarding an accessory dwelling unit is not at issue in the present case.
7 function of the court is to give effect to the legislative intent,” In re Casella Waste Mgmt.,
Inc., 2003 Vt. 49, ¶6, it is apparent that the Bylaws do not allow two principal uses in
separate principal buildings on a single lot, as is proposed in the present case. If the vehicle
repair business exceeds the level of a home occupation operated in an accessory building,
sufficient to require conditional use approval, then it would be a second principal use in
a second principal building and not allowed7 under the Bylaws. The Town’s motion for
summary judgment is therefore GRANTED in part on this issue.
However, Appellants do continue to hold their permit for the garage, allowing them
to operate a home occupation in the garage, repairing motor vehicles and equipment such
as snowmobiles, all‐terrain vehicles, trucks, cars, and “other small maintenance things.”
They may continue to operate that business so long as it remains within or is reduced to
the scope of a home occupation as defined by §707 of the Bylaws.
Disputed facts remain as to the scope of the repair business, and whether it meets
or could be made to meet all of the subsections of §707. The motions for summary
judgment must be DENIED as to this issue, which also remains for trial.
Successive application issue
To avoid dismissal of an application under the “successive application doctrine”,
an applicant must demonstrate that “a revised proposal addresses all concerns that
prevented approval of the prior application.” Armitage, 2006 VT 113, ¶4. If the property
had contained enough acreage to support the conditional use application, we would have
begun the hearing by giving Appellants the opportunity to present evidence showing if the
present proposal addresses the concerns for which the October 2004 application was
denied. If so, this application would not be barred by §4470(a) and we would have
7 No application for approval of a Plann[ed] Unit Development on this property has been submitted to the Planning Commission, Bylaws §845, or appealed to this court.
8 proceeded to consider it on its merits. Therefore, Appellants’ Motion for Partial Summary
Judgment is GRANTED in part as to this issue, in that the present application is not
necessarily an impermissible successive application.
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, as discussed
in detail above. The trial on the remaining disputed issues remains scheduled for
November 30, 2006, from 9:00 a.m. to 3:00 p.m. Please advise the Court as soon as possible
if the parties believe either that the trial will take more than the five hours scheduled, or
that interlocutory appeal will be sought of any issues in this decision. If so, please also be
prepared to discuss scheduling at the telephone conference that remains scheduled for
November 20, 2006.
Done at Berlin, Vermont, this 16th day of November, 2006.
_________________________________________________ Merideth Wright Environmental Judge