Appeal of Bone Mountain, LLC

' STATE OF VERMONT
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' ENVIRONMENTAL COURT
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'Appeal of Bone Mountain, LLC } Docket No. 114-6-04 Vtec
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Decision and Order on Cross-Motions for Summary Judgment
Appellant-Applicant Bone Mountain, LLC (Bone Mountain) appealed from three
conditions'[1] in the decision of the Development Review Board (DRB) of the Town of
Wilmington, granting its application for conditional use approval to expand its brew pub
business from twenty-five to eighty-five seats. Neighbors Gerald and Sheila Osler filed a
cross-appeal challenging whether the application meets the parking requirements of the
Zoning Ordinance or adversely affects existing community facilities. Appellant-Applicant is
represented by Robin L. Stern, Esq.; Cross-Appellants are represented by Robert M.
Fisher, Esq.; and the Town of Wilmington is represented by Jill E. Spinelli, Esq. Appellant
and Cross-Appellants each moved for summary judgment regarding whether the proposal
satisfies the parking requirements of the Zoning Ordinance. The Town had the opportunity
to but declined to file a memorandum on the motions.
The following facts are undisputed unless otherwise noted. Appellant-Applicant
operates a twenty-five seat restaurant and brew pub in an existing 200-year-old building
located at 3 North Main Street (Route 100) in the Commercial and Design Review zoning
districts, near the center of what the DRB characterizes as the 'village' area. The building
is served by municipal water supply and wastewater disposal. At present, the first floor of
the building is used for the restaurant and brew pub, the second floor of the building is
used for office and storage space for the business, and the third floor of the building is
used as a residential apartment. No party has suggested that the existing use in the
building failed to obtain any necessary municipal permits. However, neither party has
supplied any existing permits; therefore we cannot determine whether Appellant-Applicant
obtained any approval of the existing uses, which would have become final without appeal.
As of December of 1990, the building was in use as an apartment building and ice-
cream parlor. As neither party has supplied any permit for those prior uses, we cannot
determine whether the prior owner obtained any approval of the prior uses, which would
have become final without appeal, or whether they were treated as pre-existing uses on
that property.
Prior to 1990 the building had been located on a larger lot, which contained a barn
that was attached to the Town office building. In December of 1990 the former owners
obtained a state subdivision permit approving the division of the land for transfer of the
land with the barn to the Town for conversion to Town office use. That state permit
approved the existing building for "the existing apartment building and ice cream parlor"
and required that "no alteration to the existing building[s] which would change or affect
the water supply system or the wastewater disposal system shall be allowed without prior
review and approval." Because the parties did not supply the plans incorporated by
reference in the 1990 state subdivision permit, and did not provide any municipal
subdivision permit, we cannot determine the size of the former larger lot.
Based on the state subdivision permit, it appears that in 1990 the lot became more
non-conforming than it had been before, at least as to lot size, lot coverage, and parking.
We cannot determine from the materials supplied by the parties whether that division
constituted a violation of '3(c) of the Ordinance, whether that section or a similar section
was in the ordinance in 1990, or whether the owner had obtained a variance, special
exception or other approval of the resulting undersized lot or the lack of off-street parking
for the business on the lot. '3(d).
As it now exists, the lot and building do not comply with the Zoning Ordinance in
the following respects. The lot size is .14 acre, much less than the minimum one-acre lot
size for commercial uses in the Commercial district, '6(B)(2)(b), and just over the one-
eighth acre size allowed for any development of an existing small lot. '3(e). Its frontage
is 56 feet, less than the minimum of 150 feet required for commercial uses in the
Commercial district. '6(B)(2)(b). Its lot coverage is approximately 68%, exceeding the
25% limit for commercial uses in the Commercial District. '6(B)(2)(b). It also fails to
meet the required setbacks of 40 feet from the limits of the public road and from any
other property line, as all its setbacks are less than 20 feet. '6(B)(2)(b).
A fifteen-foot-wide driveway serving the property runs along the north side of the
building for a length of approximately forty-eight feet. The driveway does not meet the
minimum width of twenty feet required for commercial uses in the Commercial District.
'6(B)(2)(b). The driveway has enough room to park one or two employee vehicles and
to provide access to the building='s side door and to the dumpster, located at the far end
of the driveway. No other parking is available on the property. The property therefore
lacks the minimum required parking (of 200 square feet (one space) per every three
persons to be accommodated on the premises) for its existing 25-seat restaurant plus its
apartment. The property is located close to the center of the >village' in the
Commercial zoning district. Businesses in this area attract large numbers of tourists,
especially during fall foliage and ski season. A total of approximately 125 to 148 public
parking spaces are available nearby: along the four branches of Main Street, including
Vermont Routes 9 and 100, and in the three public parking lots. Restaurant seating in the
area using those spaces represents over 700 seats, without addressing the parking
requirements for other retail businesses. As the DRB recognized in the present decision
on appeal, parking in the >'village' area is already insufficient to meet the needs of local
businesses, and addressing this deficiency is a community problem that has not yet been
resolved.
In the present application, Appellant-Applicant has applied for conditional use
approval to expand the restaurant and brew pub from twenty-five seats to eighty-five seats
by converting the second floor from office and storage space to restaurant use and by
converting the third floor from an apartment to office space, eliminating the apartment use.
After remodeling, Appellant-Applicant proposes to use the ground floor for a forty-five seat
restaurant, the kitchen, the brewery, and two restrooms, and proposes to use the second
floor for a thirty- to thirty-five seat bar, and two additional restrooms. Appellant-Applicant
also proposed to present performances of live music in the restaurant and to change the
windows and doors leading to a second-floor porch to make it available to patron use.
Appellant-Applicant does not propose to change the building's footprint.
The DRB granted Appellant-Applicant's conditional use permit, although it noted that
the application fails to meet the off-street parking requirements of the Zoning Ordinance,
that the existing public and on-street parking is inadequate and that the available parking
"does not meet the need already." The DRB specifically concluded that A'the applicant's
additional seating request will not greatly increase the number of people that are already
here looking for non-existent parking spaces," and stated that it had not applied the
''6(B)(2)(b) parking requirements "to Commercial Conditional Use Permits in the Village
area for more than twelve years specifically because of the lack of potential new parking
spaces."
While the Court understands the serious problem of lack of off-street public or
private parking spaces in the >village' area, neither the DRB nor this Court, sitting in the
place of the DRB, may disregard the requirements of the Zoning Ordinance. If the Town
wishes to define the boundaries of the >village' area and to suspend the applicability of the
'6(B)(2)(b) parking requirements to commercial conditional use permits in the 'village'
area, as the DRB says has been done de facto for the last twelve years, it must do so by
amending the ordinance. This Court cannot apply or follow an unwritten practice of the
DRB; rather, the standards applicable to conditional use applications must be ascertainable
in the Zoning Ordinance. See In re Appeal of Miserocchi, 170 Vt. 320, 325 (2000); and
see In re Handy and In re Jolley Assoc., 171 Vt. 336, 344-49 (2000). Nor is it fair to
applicants for a Town to have unwritten zoning requirements or exemptions, both because
they might be differentially applied to one application and not to another, and because
there is no way for an applicant to know in advance whether to proceed with an
application that may not appear to comply with the zoning standards found in the
ordinance.
Similarly, if the DRB wishes to allow applicants to satisfy the parking requirements
of the Zoning Ordinance by demonstrating that sufficient parking spaces are available
nearby in either public or private lots, the Town must amend its ordinance to adopt such a
provision. See, e.g., the ordinances applied in In re: Appeals of Miserendino, et al.,
Docket Nos. 85-5-99 and 191-10-99 Vtec (Vt. Envtl. Ct., Jan. 13, 2000); aff'd' Docket
No. 2000-189 (Vt. Sup. Ct., Aug. 23, 2001) (three-justice panel, unpublished) (applying
Town of Warren Zoning Bylaws Article VI, '3(K)), which allows the Planning Commission
to "waive or revise" the parking standards based on its review of the specific proposed
"mix of uses" and the "proximity to public parking;" and In re Appeal of Hehir, Docket No.
130-6-00 Vtec (Vt. Envtl. Ct., Dec 28, 2001), aff'd' Docket No. 2002-064 (Vt. Sup. Ct.;
Sept 25, 2002) (three-justice panel, unpublished) (applying City of Burlington Zoning
Ordinance ''10.1.13, which allows off-property parking to count towards the parking
requirement as long as the spaces are not more than 400 feet from the lot that the
parking spaces serve).
We note for the parties' guidance that if the Town wishes to adopt a parking waiver
provision, or to place a moratorium on applying the parking standards to commercial
conditional uses in a defined 'village' area, or to provide standards for determining whether
off-site parking can be counted towards satisfaction of an applicant's parking requirements,
a new application could be considered under the proposed ordinance amendment as soon
as it is proposed for public hearing (and for 150 days thereafter). Since July of 2001, it
has not been necessary to wait until the amendment has been adopted or until its effective
date. 24 V.S.A. '4449(d) (formerly ''4443(c)).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Cross-Appellants' Motion for Summary Judgment is GRANTED, and Appellant-Applicant's
Motion for Summary Judgment is DENIED, concluding the appeal. Appellant-Applicant's
application fails to meet the parking requirements of the Zoning Ordinance and must be
denied, without prejudice to resubmitting the application should the Town propose an
ordinance amendment under which it could be considered.
Based on this decision, the hearing reserved for June 7, 2005 has been cancelled.
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Done at Berlin, Vermont, this 11th day of May, 2005.
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Merideth Wright
Environmental Judge
'[1]
Prohibition of customers on second-floor porch, prohibition of amplified music;
and prohibition of live music after 10:00 p.m. on Sunday through Thursday nights and after
midnight on Friday and Saturday nights.