Shatney NOV ( 2015 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 171-12-13 Vtec
Shatney NOV (Overturned) JUDGMENT ORDER
On February 24, 2015 the Court held a site visit at the subject property, 41 School Street
in the Town of East Hardwick, Vermont, and a subsequent full-day merits hearing in this matter
at the Vermont Superior Court, Civil Division Courthouse in St. Johnsbury, Vermont. Property
owners Earl and Wilma Shatney (“the Shatneys”) and Appellants David Gross, Tracy Martin,
Joyce Mandeville, and John Mandeville (“Appellants”) were present at the trial and represented
by Glenn C. Howland, Esq. and Charles Storrow, Esq., respectively.
After all parties had a full opportunity to present evidence, the Court took a brief recess
to review the evidence, conduct legal research, and deliberate. The Court thereafter
reconvened the hearing and announced its Findings of Fact, Conclusions of Law, and Order.
This Judgment Order is provided as a summary of those Findings and Conclusions and to satisfy
the Court’s obligation under Vermont Rule of Civil Procedure 58. To the extent the reader
wishes to review the Court’s Findings and Conclusions, the reader is referred to the audio
record of the February 24, 2015 hearing.
Summary of Findings of Fact
1. Earl and Wilma Shatney have owned and occupied property located at 41 School Street
in the Town of East Hardwick, Vermont (“the Property”) since the fall of 2006. The Property is
located within the Compact Residential zoning district.
2. Appellants David Gross and Tracy Martin reside next door to the Property at 27 School
Street, and Appellants Joyce and John Mandeville reside across the street from the Property at
70 School Street. These properties are located within the CR zoning district, although a portion
of the property at 27 School Street is located within the Central Business zoning district.
3. School Street encompasses a quiet neighborhood of residential dwellings. The sole
commercial businesses on School Street are a chiropractic office and D & L Trucking and
Logging, the latter of which has frontage and access on Route 16 at the opposite end of School
Street from the parties’ properties.
4. Earl Shatney and his wife, Wilma Shatney, incorporated and registered two business
entities with the Vermont Secretary of State: E. Shatney & Sons Trucking, Inc., and JS Transport,
Inc.. The principal business and physical address of both businesses is listed as 41 School Street
in East Hardwick, Vermont.
5. The Shatneys own two 1998 Western Star diesel-powered commercial tractors, both of
which are registered to E. Shatney & Sons Trucking, Inc. and which are leased to JS Transport,
Inc.
6. Earl and his son Jeffrey Shatney derive business income from truck driving activities
conducted through E. Shatney & Sons Trucking, Inc. and JS Transport, Inc. The nature of long
and short haul trucking requires the Shatneys to conduct revenue-generating activities off-site
from the Property at issue in this appeal. This includes the physical attachment of the tractors
to trailers.
7. When not in use for business activities off-site, the Shatneys’ tractors are stored on an
outdoor driveway located on the Property. Miscellaneous equipment, including miscellaneous
gear, engine oil, and spare or seasonal tires, are generally stored in a locked outbuilding
attached to the Shatneys’ home, some of which is used for maintenance of the commercial
tractors and some of which is used for the maintenance of the elder Mr. Shatney’s personal
pick-up truck.
8. In order to conduct their business activities off site, the Shatneys must store, idle, and
perform routine light maintenance work on their tractors at some location in between their
driving activities. Routine maintenance includes routine safety checks, air pressure tests, fluid
level checks, washing, waxing, vacuuming, and light repair, such as mirror or antenna
replacement. The Shatneys have chosen to conduct these business-related activities at or in
front of the Property, which is also their personal residence.
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9. The Shatneys must start and idle their commercial tractors while they are located either
in the driveway or when parked in front of the Property. When parked in front of the Property
on School Street, the trucks sometimes impede the flow of two-way traffic, especially when a
trailer is connected to the truck.
10. The Shatneys often allow their trucks to idle in their driveway or on School Street for as
long as forty-five minutes. This idling has occurred at all hours of the day or night, including at
3:00 AM.
11. The noise caused by the Shatneys’ idling tractors is regularly occurring in that it recurs at
normal intervals and in conformity with established usages. The noise also represents a
significant increase in noise levels common to this neighborhood in that truck traffic on School
Street is infrequent and no other property in the neighborhood is used to park, store, and idle
commercial tractor vehicles.
12. The vibrations caused by the Shatneys’ idling tractors is clearly apparent in that it is
discernible at the Shatneys’ property line without the aid of instruments.
13. The fumes caused by the Shatneys’s idling tractors constitute a nuisance to neighboring
landowners and are offensive and uncharacteristic of the area in that the tractors are the sole
source of diesel exhaust and prevent Appellants from opening their windows or sitting on their
porches.
14. The Shatneys do not have a conditional use permit or any other permit for uses on their
Property for anything other than a single family residence.
Summary of Conclusions of Law
We uphold the Zoning Administrators Notice of Violation (“NOV”) that the Shatneys
violated the performance standards established in Article 3 of the Town’s Unified Development
Bylaws. Specifically, the noise, vibrations, and fumes caused by the idling of their commercial
tractors is not in compliance with the general standards under Bylaws § 3.11(A)(1), (7), and (8)
that prohibit any use that causes, creates, or results in, among others, regularly occurring noise,
clearly apparent vibration, or smoke, dust, noxious gases, or other forms of air pollution. These
performance standards “must be met and maintained for all uses in all districts.” Bylaw § 3.11.
For this reason, we void the Development Review Board’s determination and reinstate the
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NOV. We refer the matter to the Zoning Administrator for any further action deemed
necessary to ensure compliance with the Bylaws.
Electronically signed on March 4, 2015 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
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Thomas S. Durkin, Judge
Environmental Division
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