Appeal of Goldchmid ( 2002 )


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  •                                       STATE OF VERMONT
    ENVIRONMENTAL COURT
    In re: Appeal of Goldschmid           }
    }
    }   Docket No. 91-6-01 Vtec
    }
    }
    Decision and Order
    Appellant Thomas Goldschmid appealed from a decision of the Zoning Board of Adjustment
    (ZBA) of the Town of Westminster granting Conditional Use Approval to Appellee-Applicant Flo
    Aeveia Magdalena, d/b/a Soul Support Systems, Inc.
    Appellant appeared and represented himself; other neighbors Carrie Gelfan, Michael Beh,
    David F. Walter, Frank Walter, Karen Walter, Marcia Wessels, Thomas Wessels, John Dixon,
    Linda Dixon, Tammy Kissell, Rebecca Nixon, Mike Collins, Alki Steriopoilos and Shannon
    McGough appeared as interested parties and represented themselves; Appellee-Applicant
    1
    appeared and represented herself . Earlier in the proceedings, the Town of Westminster had
    appeared through Attorney David Gartenstein; however, as of the evidentiary hearing and the site
    visit, Town Manager Glenn Smith participated on behalf of the Town and Mr. Gartenstein did not
    participate. This matter was put on inactive status for a time while the parties attempted to resolve
    this dispute through mediation.
    An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge,
    who also took a site visit with the parties on a subsequent date. The parties were given the
    opportunity to submit written requests for findings and memoranda of law. Upon consideration of
    the evidence, the site visit, and the written memoranda and proposed findings, the Court finds
    and concludes as follows.
    Appellee-Applicant owns two parcels of property at the end of Daigel Road, a Class 3
    unpaved public road, in the Rural Residential 5 zoning district of the Town of Westminster. Daigel
    Road widens into a turnaround suitable for the Town plow to maneuver on Appellee-Applicant= s
    property. One of Appellee-Applicant= s parcels of land is a 10.6-acre lot containing a large house,
    with the address of 626 Daigel Road. The adjacent lot, with the address of 647 Daigel Road, is a
    2                                   3
    124-acre parcel containing a barn structure , diagonally across the turnaround from the house,
    and otherwise unimproved with permanent buildings. A proposed campsite and privy are located
    centrally within the 124-acre parcel, well away from the end of Daigel Road, with a walking trail
    leading from the house and barn to the campsite area. The 124-acre lot contains land generally
    uphill from and relatively remote from the Daigel Road neighbors, except that the barn, parking
    area and turnaround area are located at the top of a natural amphitheater facing the neighboring
    properties down Daigel Road. Activities involving drumming, music, or loud vocalizing occurring
    at the barn (when not fully enclosed), the parking area, or on the 10.6-acre house property,
    including in the field behind the house, are visible or audible from the properties of the Daigel
    Road neighbors. Activities involving drumming, music, or loud vocalizing occurring at the
    proposed campsite location on the 124-acre property are not visible or audible from the Daigel
    Road neighbors= properties.
    Daigel Road is an unpaved Class 3 Town road about two-thirds of a mile long, leading in a
    gentle S-curve uphill from Pine Banks Road, directly across from the Steriopoilos and McGough
    4
    property, past the neighbors= ten driveways and ending at Appellee-Applicant=s properties.
    Although the lateral curves in the road are gentle, the grade of the road is relatively steep, with
    grades as much as 122 % to 152 % in certain stretches of the road. See Exhibit 8. The traveled
    way of the road is as narrow as approximately twelve feet in places, where it is difficult for two
    farm trucks to pass in opposite directions in the summer months. The combination of the narrow
    roadway, steep grades and curves results in limited visibility for vehicles traveling along the road
    to see vehicles emerging from the driveways or to see the approach of oncoming vehicles. These
    conditions are exacerbated by the accumulation of plowed snowbanks in the winter months. In
    the winter, the road does not function adequately as a two lane road; certain vehicles must back
    up to a driveway to allow other oncoming vehicles to pass. The residents and local delivery trucks
    are familiar with the road conditions and travel slowly along the road, looking out for the
    driveways. As it is a dead end road, there is no through traffic. The character of the area is rural
    and residential, with a mix of agricultural uses.
    5
    Since acquiring the property in 1994, Appellee-Applicant has operated educational programs
    at the combined properties during various months of the year from April to October, and has
    received payment from the program participants for those programs, without having obtained
    zoning approval of this non-residential use of the property. The organization through which she
    provides these programs is a non-profit corporation.
    The programs for adults generally involve groups of up to twelve participants and up to eight
    6
    staff people, for a total of up to 20 people, but have involved as many as 36 people for a period
    of three to four days in 1996. As described in Appellee-Applicant= s brochures (Exhibits C and
    D), these programs range from one-day, three-day, or five-day Soul Recognition journeys or
    experiences, to six-day or seven-day training workshops for those wishing to be certified as
    facilitators or to receive advanced training. The participants pay a fee for the program, exclusive
    of room and board, and are charged a separate fee for lunches and a separate fee for breakfast if
    they wish it. They have the option of camping on the land, staying at a nearby motel, or staying at
    Appellee-Applicant= s house. The vehicles coming to the property associated with these
    programs average half of the number of participants and staff for any given program. Generally,
    the people who stay on the land or at Appellee-Applicant= s house drive to the property the
    evening before the session begins, and leave the vehicle there during the whole program, leaving
    at the end of the last day or the following morning. The people, such as staff members, who live
    in the area, and the participants who opt to stay at nearby motels or bed-and-breakfast
    accommodations, drive to the property between 8:00 and 8:45 a.m., and leave the property
    between 9:30 and approximately 10:30 p.m. Car pool arrangements are made to minimize the
    number of vehicles used during the session for these people; however, they all do arrive and
    leave at approximately the same time of day.
    The programs for children have been run as a single five-day residential summer camp
    program called EarthQuest, held since 1994 (except for 1999), and using the tipis for overnight
    accommodation. The automobile use associated with this program is similar to that of the adult
    sessions, as the staff and children stay at the site for the program session. However, in the
    summer of 2000, Appellee-Applicant rented the facility to the Vermont Wilderness School for use
    as a day camp in two sessions in July and August, the first session involving a group of twenty
    and the second session involving a group of eleven. Because the children were being brought to
    and picked up at the property daily, the first of these sessions involved much more traffic and
    noise than the adult or residential children= s camp sessions, and generated complaints from the
    neighbors. The staff of the second day camp session organized car pools from a parking lot
    elsewhere in town, which adequately reduced the daily traffic for that session.
    In past years Appellee-Applicant has run a maximum of five programs in a year, or a
    maximum of 35 days of programs in a year, including the children=s camp. She uses the house
    for registration on arrival, for the preparation of meals, for lodging for some participants, and for
    the participants= use of the two toilets in the house. Registration, the consumption of meals, and
    quiet program activities may be held in the barn once it is enclosed.
    In the present application, Appellee-Applicant proposes to continue to conduct all of these
    programs, with the possible exception of the day camp as discussed below. She proposes to
    increase the number of potential program days to a maximum of ninety days of programs in a
    7                                       8
    year, from May 1 through October 31 each year. She proposes to increase the overnight
    campground area to provide overnight accommodations for up to fifty people. She does not
    propose any exterior lighting in the upper fields near the camping area, and proposes to shield or
    direct away from the neighbors any outdoor lighting in the parking area or along the path. She
    proposes not to schedule activities after 11 p.m. or before 7 a.m., but notes that vehicles may
    have to leave the property earlier than 7 a.m. to connect with flight times from Bradley Airport in
    Hartford, Connecticut. She proposes, but only if required by the Court, to restrict the number of
    events involving up to fifty participants to five per year, with the remainder of events having a
    maximum of 35 participants, with a maximum of twenty vehicles. Once participants have arrived,
    she encourages but does not require them to car pool from their off-site accommodations to the
    property, and to car pool for any travel off the property during the program period, to minimize
    traffic on Daigel Road. She requires those who will be staying in the tipis to arrive not later than 9
    p.m. the night before the first day of the program. Those who are staying off the site are required
    to arrive by 8:45 a.m. each day, or by 8:00 a.m. if they will be eating breakfast at the house. The
    use of the property for up to 50 people with no limitation on vehicle use would generate an
    average of 25 vehicles, but could generate more, all of which could be traveling to the property
    9
    within a single hour or two. Such a level of vehicle use would exceed the capacity of Daigel
    Road safely to conduct traffic.
    The adult program uses fall within the use categories of > campground= and > limited outdoor
    recreation,= which are conditional uses in this district. Accordingly, Appellee-Applicant applied for
    conditional use approval, which is the subject of the present appeal.
    We must note that all the parties seemed confused about the change in use of the parcel,
    treating it as an all-or-nothing proposition that, if approved, would allow all types of campground
    use including that for recreational vehicles and for unlimited numbers of people. This is a
    misunderstanding of the way in which zoning regulations function in general. For uses in a >
    permitted use= category in a specific district, such as > residential,= it is true that an applicant
    has the right to build as big a house as he or she wishes, consistent with the other zoning
    regulations such as those regulating setbacks, sewage disposal, floodplain or ridgeline protection.
    However, by contrast, if a use category is designated as a > conditional use= category in a
    specific district, that designation merely entitles the applicants to apply for approval of a specific
    proposal within that use category. A particular parcel of land, for example, might adequately
    support the sewage disposal or the traffic generated by a four-unit apartment building, but not that
    generated by a forty-unit apartment building, even though both proposals fall within the use
    category of > multi-family dwelling.= Thus, in the present case, the fact that the use categories >
    campground= and > limited outdoor recreation= are allowed as conditional uses in this zoning
    district only means that Appellee-Applicant is entitled to apply for approval of a specific proposal
    within those categories. Approval of that specific proposal would not entitle an applicant to
    expand beyond the specific proposal without applying to the ZBA for an amendment to or
    expansion of the conditional use approval granted for that specific proposal.
    Appellee-Applicant also applied to the Planning and Development Commission for site plan
    approval of this change in use, as required by ' 151.1of the Zoning Ordinance. She was granted
    site plan approval to A operate a campground/limited outdoor recreation facility from the
    residence at 626 Daigle Road.@ In connection with the site plan application, Appellee-Applicant
    proposed to use the facility five to six times a year with a maximum occupancy of 50 persons at
    any one time. We note that regardless of what is approved in this conditional use application, she
    does not have site plan approval for any use more intense than she applied for in that application.
    10
    The only site changes proposed or approved were the installation of three tipis and a privy ,
    uphill and centrally within the 124-acre parcel. The site plan did not propose or require any
    landscaping or screening. No party appealed the site plan approval and it became final.
    First of all, we must note what is not before the Court in this application. Appellee-Applicant
    does not have and has never applied for conditional use approval to provide lodging, meals or the
    use of toilet facilities to the participants in her programs at or in the house or elsewhere on the
    10.6-acre house property. All she has is site plan approval of the placement of the tipis and privy
    on the 124-acre parcel, and to > operate= the programs from her residence, which can only refer
    to the office or management functions for the programs being operated by her and other residents
    of the house as a permitted-use home occupation. See ' 242.6(b)(5).
    The use categories of > bed and breakfast= and > inn= are conditional uses in this zoning
    district. Appellee-Applicant is entitled to apply for conditional use approval of the use of the house
    as a > bed and breakfast= or > inn= use, or as another similar > use not provided for= under '
    11
    241.9 . However, she has not made that application in the application for conditional use
    approval now before the Court. Until and unless she obtains such approval she may not offer
    accommodations at the house. See Exhibit A.
    Further, Appellee-Applicant has never applied for a permit to conduct a children= s day camp
    on either property. The children= s day camp program does not fall within the use categories of
    >campground= or > limited outdoor recreation,= even if the residential children= s camp program
    can be considered a campground. Moreover, we make no finding here as to whether a
    conventional residential children= s camp with cabins or tent platforms and outbuildings would fall
    within the use categories of >campground= or > limited outdoor recreation,= as it is appears to
    be a more intensive use of the land and may require review as a use similar to a school or a >
    non-limited= outdoor recreation use. (See the definition of outdoor recreation contrasted with >
    limited= or low-intensity outdoor recreation in the same definition.) If a day camp or conventional
    residential children= s camp were to be reviewed under ' 241.9 as a > use not provided for,= the
    Planning Commission would have to make its ruling under that section before the ZBA could
    consider that proposal as a conditional use, both of which would have to occur before the matter
    could be before the Court on appeal. Appellee-Applicant stated at the hearing that she was not
    proposing to run day camps at the property, to accommodate the neighbors= concerns about the
    greatly increased traffic caused by parents dropping off and picking up children at the property.
    However, Appellee-Applicant= s June 12, 2002 memorandum makes clear that she would prefer
    to be able to rent the property to others for day camp use, but for this objection.
    Now we turn to what Appellee-Applicant has applied for in this conditional use application,
    which is not easily determined as it does not appear in any application for conditional use
    approval nor in her testimony nor with any specificity in her post-hearing filings. She presented
    proposed limitations on numbers of participants and numbers of events, but only as >
    unwarranted and unnecessary restrictions= which she would prefer not to have imposed. From
    the totality of the evidence and post-hearing memoranda, Appellee-Applicant appears to be
    proposing to run programs on the 124-acre parcel between the dates of May 1 and October 31
    each year, occupying not more than a total of ninety days annually, with a maximum number of
    fifty participants, including staff. She is willing to abide by a condition, if necessary, limiting the
    events with a maximum of fifty participants to five events (of indeterminate duration) per year,
    with the remainder of the ninety days allocated to an indeterminate number of events of
    indeterminate duration with thirty-five or fewer participants and not more than twenty vehicles.
    Appellee-Applicant has proposed that program events involving vocalizing, drumming, or
    other music will take place in the upper or > far= fields (in the center of the 124-acre parcel), and
    that no amplified music is proposed. She also has proposed that all > structures,= which she
    defines as the > sweat lodge and/or tipis,= will be constructed in the upper or > far= fields, as
    shown on the site plan. However, Appellee-Applicant did not propose a sweat lodge in the site
    plan. It is not clear to the Court whether this is proposed as a moveable tipi or wigwam type of
    structure over a firepit for hot stones on which water can be ladled to produce steam, but a
    witness stated that it needs to be near a source of water. The site plan does not show a source of
    water in the area proposed for the three proposed tipis, although a witness stated that there is a
    stream running through the property and a beaver pond near the area used for farming. Appellee-
    Applicant has not shown the capacity of the single proposed privy to accommodate potentially
    fifty overnight guests, and has not received a permit to use the toilets in her house for that
    purpose. She does not propose any water supply to be installed in the area to be used for the tipi
    or tent camping.
    To grant an application for conditional use approval, the ZBA and hence this Court must find
    that the proposed conditional use will not adversely affect the seven criteria in ' 141.3(a): the
    capacity of existing or planned community services or facilities; the character of the area affected;
    traffic on roads or highways in the vicinity; any land use or land development ordinances in effect
    in the Town; the intrinsic capability of the land to support the use; the utilization of renewable
    energy resources; and the area environment.
    The proposed conditional use, even to the full extent proposed by Appellee-Applicant, will not
    adversely affect the capacity of existing or planned community services or facilities or the
    utilization of renewable energy resources.
    The proposed conditional use will not adversely affect other land development ordinances,
    the intrinsic capability of the land to support the use, and the area environment, only if Appellee-
    Applicant receives prior approval of the campground= s access to water and sewage disposal in
    conformance with ' 441(e), including any Town health regulations, for the capacity desired. The
    Court understands that the single privy at the site has been approved, but that former programs
    at the camping site have not involved more than twenty people staying overnight. Any necessary
    additional approval will have to be obtained before running any programs at the site in the 2003
    season involving more than twenty people.
    The proposed conditional use will not adversely affect the character of the area affected and
    traffic on roads or highways in the vicinity only if limitations are imposed regulating the number of
    vehicles passing along Daigel Road due to the proposal to no more than five in any given hour,
    prohibiting large vehicular campers or recreational vehicles from traversing the road or camping
    in the lower parking area, limiting any outdoor lighting, and regulating the uses to which the barn
    structure may be put, due to the location of the barn at the head of a natural acoustic
    amphitheater.
    Based on the foregoing, it is hereby ORDERED and ADJUDGED that Conditional Use
    Approval is hereby GRANTED to Appellee-Applicant to use the 124-acre parcel as a tent
    campground and limited outdoor recreational use in connection with the adult programs provided
    by Soul Support Systems, Inc. and the children= s residential camp program provided as
    EarthQuest, subject to the following conditions necessary to implement the purposes of the
    Westminster Zoning Ordinance:
    1.     Appellee-Applicant may conduct the programs during a maximum of ninety days within the
    period from May 1 through Oct 31 annually, and shall not conduct any program events
    concurrently without approval of an amendment to this approval. If Appellee-Applicant wishes to
    allow participants or staff to arrive on April 30 in preparation for a program beginning on May 1, or
    to leave on November 1, after a program concluding late on October 31, those dates are also
    hereby approved to avoid confusion, conflict with neighbors, or the need for an amendment for
    those purposes. Appellee-Applicant may conduct the programs during the hours of 7:00 a.m. to
    11:00 p.m. daily, except that a single earlier vehicle departure or later vehicle arrival is allowed if
    necessary due to airport transportation schedules. Appellee-Applicant shall advise Appellant and
    the other neighbors who were parties to this appeal in advance of any such vehicle trips, if
    scheduled and not due to an emergency, by the means of Appellants= choice (e.g., by mail,
    telephone or email).
    2.     Appellee-Applicant is authorized by this approval to provide tent (including tipi) camping
    only, and only in the three tipis or any participants= tents within the camping area shown on the
    site plan. No vehicular camping in travel trailers or recreational vehicles is allowed, and in
    particular no camping of any type on the 10.6-acre house lot or in the parking areas near the
    turnaround or barn, and no overnight accommodations in the barn. Any exterior lighting to be
    installed on or near the barn or parking area shall be shielded or directed away from the
    neighbors, and shall be installed with a motion detector to minimize the time it must be on,
    consistent with the safety of the participants.
    3.       Appellee-Applicant is authorized to place only the three provided tipis and the single privy
    at the campground site as shown on the site plan. Any additional structures or waste disposal
    facilities must obtain an amendment of the site plan and this approval. No exterior lighting shall
    be installed in the upper or > far= fields in or near the camping area.
    4.     Appellee-Applicant shall apply for and receive prior approval of the campground= s access
    to water and sewage disposal in conformance with ' 441(e), including any Town health
    regulations, for the capacity desired. Appellee-Applicant may apply for water and sewage
    approval for a greater capacity than now authorized by this approval, in anticipation of making a
    future application to the Planning Commission and ZBA to increase that capacity. Until obtaining
    approval of additional capacity at the camping area or in the house, Appellant shall limit each
    event to no more than 20 participants including staff (exclusive of the residents of the house).
    Upon obtaining approval of additional sewage disposal capacity at the campground or in the
    house, Appellant may increase the size of each event to no more than 35 participants including
    staff (exclusive of the residents of the house). Approval of events involving up to fifty participants
    including staff will have to be the subject of a future amendment application, upon a showing of
    arrangements for an off-site parking area and a shuttle vehicle to the property. (See Condition 6,
    below).
    5.      Appellee-Applicant shall not conduct program uses involving drumming, music, or loud
    vocalization in or near the barn or parking area. After the barn is entirely enclosed, Appellee-
    Applicant may apply to the ZBA for an amendment of this condition upon a showing that the
    activities can be sufficiently enclosed or shielded from the neighbors so as not to adversely affect
    the conditional use criteria.
    6.     Appellee-Applicant shall limit the number of vehicles on the property in connection with the
    programs to no more than 20 vehicles, and shall provide adequate parking for those vehicles.
    Appellee-Applicant is applauded for encouraging participants to car pool. However, so that the
    use will not adversely affect the traffic on Daigel Road, Appellee-Applicant shall limit the total
    number of (one-way) vehicle trips by program participants or non-resident staff to no more than
    five vehicle trips (either onto or leaving the property) in any hour. To achieve this result for events
    involving larger numbers of participants, Appellee-Applicant is encouraged to arrange for an off-
    12
    site car parking area in a suitable location closer to Route 5 or I-89, such as at a commuter
    parking lot, a commercial business, or a school or other institution, and to provide for a shuttle
    van to the property at least once in the early morning and from the property at least once in the
    late evening, operated by a staff member familiar with the conditions of Daigel Road. Please note
    that such an arrangement might be required by the ZBA or by this Court for approval of any larger
    number of participants in any future application.
    Please be advised that this conditional use approval applies to Appellee-Applicant= s
    conditional use application and not to any personal or family use she may make of her house or
    the 10.6-acre house property. This approval is without prejudice to any future application that may
    be made to amend this approval to increase the maximum numbers of participants, or the
    maximum numbers of event days, or the calendar dates within which events may take place, or to
    allow concurrent events, or to use the house or the barn for overnight accommodations or for
    toilet or shower use in connection with the programs described above, or to use the property for
    children= s day camping use, or to alter any other aspect of the proposed uses. Any such
    amendment application, if appealed, would become the subject of a new appeal under a new
    docket number.
    th
    Dated at Barre, Vermont, this 27 day of December, 2002.
    ___________________
    Merideth Wright
    Environmental Judge
    Footnotes
    1
    As appears in the first full paragraph on (unnumbered) page 4 of Appellee-Applicant’s June 21,
    2002 memorandum, she has not understood that the proceedings before the Court are de novo,
    where the Court is sitting in place of the ZBA to rule on Appellee-Applicant’s application for
    conditional use approval, although this aspect of the appeal was explained both in the pre-trial
    proceedings and during the trial itself. The Court must be satisfied that all the criteria for
    conditional use approval raised in the Statement of Questions are met for this application, before
    it can be approved.
    2
    Appellee-Applicant’s promotional materials (Exhibit A) describe the land as 200 acres and her
    June 21, 2002 filing describes it as 200 acres in three contiguous parcels. However, no additional
    property other than the 124-acre parcel containing the barn, and the 10.6-acre parcel containing
    the house, has been presented to the Court in connection with this appeal.
    3
    At the time of the hearing and site visit in this matter, the barn structure had not been
    completely enclosed, but was in the process of being enclosed with windows and doors.
    Appellant proposes wholly to enclose the barn structure by the end of the 2003 operating season.
    4
    Some of the neighbors’ properties have more than one driveway, for example, leading to a
    house and to a barn.
    5
    The spiritual or educational subject matter or content of these programs has no significance to
    the zoning decisions to be made in this appeal, though that content is significant to Appellee-
    Applicant and the participants in the programs. That is, the philosophy or content of what is taught
    or discovered during the programs makes no difference to the categorization of the proposed
    uses of this property as ‘campground’ or ‘limited outdoor recreation’ or some other zoning use
    category.
    6
    Appellee-Applicant has also hosted larger neighborhood gatherings at her house, but not in
    connection with the programs at issue in the present appeal.
    7
    Appellee-Applicant also stated at the trial her interest in extending the time frame for these
    events into the winter months. Any winter use of either property is not before the Court in the
    present application. Any proposal for use of the existing facilities in the winter months, and any
    proposal to build any additional structures, would have to be a new application. We note in this
    regard that the traffic and roadway evidence distinguished between the winter months and the
    remainder of the year.
    8
    We note that the site plan approval only covered a camping area of three tipis and one privy. If
    Appellee-Applicant now proposes to increase the number of tipis or the space to accommodate
    participants’ personal tents, or to construct any additional structures, such as the ‘sweat lodge’
    referred to by Appellee-Applicant in her June 21, 2002 memorandum, she may have to apply to
    the Planning Commission for an amendment of her site plan approval.
    9
    This is not a finding regarding the effect of these vehicles on the road surface, but is a finding
    regarding the effect of these vehicles on the safety of pedestrians, farm animals and other
    vehicles using Daigel Road.
    10
    The privy may also require approval under the Town’s waste disposal regulations.
    11
    Under §241.9, any ‘use not provided for’ first must go before the PC for a finding that the use
    is of the same general character as those allowed within the district and that the proposed use
    will not be detrimental to the other uses within the district or to the adjoining land uses.
    12
    And specifically not along the verge of Pine Banks Road.
    

Document Info

Docket Number: 91-6-01 Vtec

Filed Date: 12/27/2002

Precedential Status: Precedential

Modified Date: 4/24/2018