Sheldrick Building Permit

Opinion

FILED

Environmental Court cf Vermont State cf Vermont

JUL l 2[][]8 ::_-=:=::::==::';:=::::__,:::===::'_-=::::=:=::::=::::::::=:::“_-:::::=:;::'_-:vEWONT ENTRY REGARDING MOTION Sheldrick Building Permit Docket NO. 185-9-07 Vtec Project: Sheldrick WorkShOp/Garage Applicant: Donald & Heidi Sheldrick

Municipal ZBA Appeal from ZA

Title: Motion for Reconsideracion, NO. 6

Filed: June 10, 2008

Filed By: Paradis, Vincent A., Attorney for: Appellant Stuart M, Bennect Appellant Patti Naritomi

Response filed en 06/26/08 by Appellee Donald SheldrickAppellee Heidi Sheldrick

Opposition C\¢!.v\.'.¢a ;-- ?1¥"_;

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Appcllants Stuait Bennett and Patti Naritomi recently moved for this Court to reconsider its Deeision on l’endt`npT Motions for Summary Judgment, dated May 30, 2008 (“Decision"). in this motion, Appcllants requested that the Court specifically resolve whether Appellants would be entitled to present evidence at trial relatingr to the usc of the entire accessory structure to conduct a home occupation, whether the proposed home occupation is a customary use for tlic parties’ neighborhood and whether the proposed home occupation use will have an undue adverse effect on the character oi` their neighborhood Appellcc-Applicants, Donald and Heidi Sheldrick, opposed the motion.

__ Granted _L_ Denied ali Other_

On the first point, Appcllants contend that they should bc entitled to present evidence that Applicants intend to usc the entire accessory structure to conduct the home occupation use. i'\s ./-`tppellee-Applicants do not dispute this fact, Appellants` request appears unnecessary in essence, Appellants are seeking to submit evidence to prove an undisputed i`act. Thus: the evidence on this issue may be stipulated and need not consume trial time. That aspect of Appellants" motion is therefore DE-NIED.

Appellants’ implied suggestion that the applicable pro\-'isions of Zonin§':J Reg_ulations §4.ll(A)(l) prohibits horne occupations that use more than a minor portion of an accessory structure is not supported by the plain wording of that chulation. Following, our canons of statutory construction,l the plain language of§ 4.1 l(A)(l) reveals that a home occupation must occur within either a minor portion of the applicant`s dwelling or within an accessory structure Bccause the term “minor portion” is modifying only the term “dvt-“elling structure,” it does not limit the home occupation usc of an accessory structure This interpretation is supported by two additional facts that appear obvious to the Court: accessory structures intended for a home occupation use must be ‘“clearly...subordinate to the principle structure,’12 a disputed fact reserved for trial. Second, the interpretation Appellants put forth for § 4.11(/-\_)(1) would require a residential use of a major portion of every accessory structure, a conclusion not yet witnessed by this Court. Thus_. we conclude that Zoning Regulations §4.11(A)(l) allows accessory structures to be wholly used for a horne occupation

l Scc iamcs _\_Zt;. Murdoch and Alice Murdoc_h v. Town of Shclburne, 200? VT 93` "} 5. 3 Zoning chulations §§ 3.6(A]t\2); l(l_§

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On their second reconsideration point. Appellants contend that they should he entitled to present evidence that the proposed home occupation is not custoi'nary in residential areas in Vermont and that it will have an undue adverse effect upon the character ot` their neighborhood ln our May 30“’ Dccision, we concluded as a matter of law that a workshop or garage structure is customarily incidental to residences in Verniont in general and this neighborhood in particular We did not intend to restrict Appellants’ ability to present evidence at trial to contradict Appcllcc-Applicants’ assertions that their proposed usc of the structure is within their neighborhoods character. ln f`act, that is the nature of the determinations that must be made under Zoning Regulations § 3.12. The distinction we drew in our Decision was that while the workshop structure is eustomary, the § of that structure is certainly a disputed fact to he decided at trial. Thus, Appcllee-Applicants must show compliance with the performance standards of § 3.12 in order to demonstrate that their proposed home occupation use should be allowed Appellants can necessarily present evidence to dispute Applicants` evidence concerning the character of their proposed home occupation use and its relation to their neighborhood

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t/ \\ 0\-'\0/> g<\§‘\L//\ July l1 2008 Thon"ias S. Durkin, Environrncntal fudge Date Date copies sent: __3‘ l' 53 4 ex C|crk`s initials: .z. \"' "»’-

Copics sent to:

Vinccnt r\. Paradis, Esq.1 attorney for Appcllants Sluart M. Bennett and Patti Nat‘itomi

Liam L. Murphy, Esq., attorney for Appellee-Applicants Don`ald and Heidi Sheldricl< John H. Klesch, Esq., attorney for the Town ot`Charlotte

lnterested PerSon Anncrnarie Curlin