Valois Airplane Storage Application

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Valois Airplane Storage Application } Docket No. 254-11-07 Vtec
(Appeal of Valois) }
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Decision and Order on Cross-Motions for Partial Summary Judgment
Appellant-Applicant Paul Valois (Applicant) appealed from a decision of the Zoning
Board of Adjustment (ZBA) of the Town of Addison, denying Applicant’s most recent
zoning application regarding the storage of his airplane on his property. Applicant is
represented by Marsha Smith Meekins, Esq. The Town is represented by Donald R.
Powers, Esq. Interested Persons John M. Baker, Janice and Pierre Barre, Eric J. and Lisa A.
Campbell, Jane and Phillip Grace, Deborah G. and Leon J. Laframboise, and Dale M. and
Diane L. Rose have entered their appearances representing themselves.
On May 3, 2007, this Court issued a decision on the merits of an earlier application
filed by Applicant proposing the use of a 1,100-foot-long mowed grass landing strip on his
residential property in the Low-Density Residential and Agricultural zoning district,
including the use of the strip for associated takeoffs and landings. The Court concluded
that the proposed use did not qualify as an accessory use to the residential use of his
property. In re: Appeal of Valois, Docket No. 7-1-06 Vtec (Vt. Envtl. Ct. May 3, 2007).
That decision noted, with regard to the annual off-season storage of Applicant’s
airplane in the already-existing hangar on his property, that no evidence had been
presented on, and the Court did not reach, the following question:
[w]hether the off-season storage of hobby conveyances (such as aircraft,
boats, recreational vehicles, and snow machines) is sufficiently common to
make just the off-season storage of the airplane an accessory use to the
residential use of the property, if the landing strip were capable of being
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approved for safety for that single annual trip by the necessary state or
federal aeronautical regulatory authorities.
Id., slip op. at 10, n.11.
Although Questions 2, 3, and 4 in the Statement of Questions are posed in terms of
whether the ZBA erred, in a de novo appeal such as this one those issues are more properly
stated in terms of whether the Court should come to those conclusions on the merits of the
present appeal. Applicant and the Town have filed a joint statement of undisputed facts,
with supporting exhibits, and have each moved for summary judgment. The following
facts are undisputed unless otherwise noted.
Some time ago Applicant had constructed a storage building on his property,
suitable for use for storage, as a barn or as a hangar for a small fixed-wing aircraft. The
construction of the storage building is not at issue in this appeal. The description of
Applicant’s property and the history of Applicant’s earlier applications relating to this
property is outlined in In re: Appeal of Valois, Docket No. 7-1-06 Vtec (Vt. Envtl. Ct. May 3,
2007), and In re: Appeal of Valois, Docket No. 226-12-04 Vtec (Vt. Envtl. Ct. Aug. 24, 2005),
and will not be repeated in the present decision unless necessary.
Within a few days after the Court’s decision was issued in Docket No. 7-1-06 Vtec,
on May 13, 2007, Applicant initially submitted a new zoning application that requested to
“store airplane” as per “permit #32-92.” That permit number referred to a zoning permit
granted to another landowner in the Town of Addison in 1992. The application approved
in that 1992 permit had requested the new construction of “aircraft storage” and to “mow
& maintain 2,000’ grass strip for aircraft.” The Zoning Administrator declined to rule on
Applicant’s May 13, 2007 application, and returned it and the filing fee to Applicant, stating
in a separate letter that the application was incomplete, that it was not clear from the
application “what it is that you want,” and that the zoning ordinance “has no provision
concerning what is stored in buildings.” The letter invited Applicant to “submit an
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application stating what you want with respect to your property, keeping in mind the
above information.” The June 11, 2007 letter of the Zoning Administrator was not appealed
and is not at issue in the present appeal.
Rather than appealing the Zoning Administrator’s initial determination, Applicant
submitted a new application on June 26, 2007, this time with an attached narrative
statement. The narrative stated that Applicant was seeking a zoning permit “for ‘aircraft
storage’ at my property . . . and to ‘mow and maintain an 1,100 foot grass strip for my
current private owned single-engine, fixed wing airplane aircraft’ or an aircraft of similar
size or smaller.” The narrative stated that the grass strip is not to be used by other pilots,
but only by Applicant as the owner of the single-family residence on the property. The
narrative stated that “I desire to store my aircraft at my property in the off-season (winter
and early spring) just as the owners of similar hobby conveyances such as recreational
vehicles, sailboats, motorboats, all terrain vehicles, and/or snow machines do within the
Town of Addison.” The narrative did not propose a particular number of takeoffs and
landings to occur in connection with the proposed storage use.
The narrative explained that Applicant was also seeking a permit because Mr.
Spencer had been required in 1992 to apply for a zoning permit for “aircraft storage” and
“to mow and maintain a 2,000 foot grass strip for aircraft.” The narrative requested the
Town to advise Applicant in writing if “no permit is required for the aircraft storage and to
mow and maintain my proposed 1,100 grass strip for the aircraft.”
The narrative also explained that Applicant was aware of this Court’s decision in
Docket No. 7-1-06 Vtec, and stated that his “proposed use of the 1,100 [foot] grass strip will
be in conformance with” that decision.
The Zoning Administrator denied this second application on July 3, 2007; Applicant
appealed the denial to the ZBA, which warned and held a hearing on August 29, 2007. At
the August 29, 2007 hearing, the ZBA heard testimony on the application, but voted to
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“table this case to next month’s regular meeting [on September 26, 2007] and have the town
lawyer” attend that meeting.
The parties have not provided the warning notice for the September 26, 2007
meeting.
The minutes of the September 26, 2007 ZBA meeting reflect that one of the neighbors
of this project, Phillip Grace, was present, but that neither Applicant nor his attorney nor
the Town’s attorney was present. After the meeting was called to order, the ZBA first
voted “to open the Paul Valois case.” No additional evidence or argument was offered on
the project. The ZBA then voted to “go into [e]xecutive [s]ession to share additional
information before deliberation.”
After coming back into the public hearing after its executive session deliberations,
the ZBA voted to “submit a draft motion of our decision of denial to the Paul Valois case.”
As amended, the minutes reflect that the ZBA proposed that “the motion will be submitted
via-email after the editing of the decision of denial by the town’s lawyer.” As drafted by
the ZBA at its September 26, 2007 meeting, the denial decision as stated in the minutes read
as follows (bold type in original):
The Town of Addison does not regulate what is stored in buildings. The
Town does not regulate what is done with fields. The Town of Addison
does not consider an airstrip to be an accessory use of a residence as
decided on by the Environmental Court on [M]ay 3, 2007.
The minutes stated that “[t]his will be out to everyone by October 5th, 2007.”
The written decision denying the application was issued on Monday, October 15,
2007. After making findings which included that Applicant “seeks zoning approval to
mow and maintain a grass strip for aircraft,” including for “aircraft landings and takeoffs,”
and that Applicant “did not specify a specific number of landings and takeoffs per year,”
the decision made four conclusions. It concluded that the Zoning Ordinance does not
regulate what is stored in buildings and does not regulate “the mowing of a strip of land.”
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The written decision also reiterated that the Zoning Ordinance “does not permit aircraft
landing strips as accessory uses to residential uses,” and “does not permit the use of
landing strips as permitted uses under the category of Recreation.” (The latter two findings
reflect the decisions of this Court in Docket Nos. 7-1-06 Vtec and 226-12-04 Vtec.) The two-
sentence “decision” portion of the ZBA decision stated that Applicant’s “application for a
permit to mow and maintain a 1100’ grass strip for aircraft is denied” and that his
“application for a permit to store an aircraft is moot because no such permit is authorized
or required” by the zoning ordinance.
A signed copy of the ZBA decision was sent to Applicant by first class mail,
postmarked on October 25, 2007.
Deemed Approval - Question 1
Question 1 of Applicant’s Statement of Questions asks whether the ZBA’s decision
was issued within the 45-day statutory period found in 24 V.S.A. § 4464(b)(1), or whether it
was deemed to have been approved.
Section 4464(b)(1) provides that the ZBA “should close the evidence promptly” after
all parties have submitted any requested information, and that the ZBA “should adjourn
the hearing and issue a decision within 45 days after the adjournment of the hearing.” It
provides that the failure of the ZBA “to issue a decision within this period shall be deemed
approval and shall be effective on the 46th day.” Id. Decisions must be in writing and
must include “a statement of the factual bases on which the [ZBA] has made its conclusions
and a statement of the conclusions.” Id. “The minutes of the meeting may suffice,
provided the factual bases and conclusions relating to the review standards are provided in
conformance with [§ 4464(b)(1)].” Id.
The statutory provision for deemed approval “is ‘intended to remedy indecision and
protracted deliberations on the part of zoning boards and to eliminate deliberate or
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negligent inaction by public officials.’” In re McEwing Services, LLC, 2004 VT 53, ¶ 21, 177
Vt. 38 (quoting In re Fish, 150 Vt. 462, 464 (1988)). Deemed approval is not appropriately
applied to timely decisionmaking, even if the decision itself is technically deficient. See id.(collecting cases inappropriate for deemed approval because a timely decision was
rendered, despite defects in decision or decisionmaking process). Applying the deemed
approval remedy to situations without protracted deliberations, indecision, or deliberate
or negligent inaction could result in approval of permits “wholly at odds with the zoning
ordinance.” In re Newton Enters., 167 Vt. 459, 465 (1998).
The ZBA began its hearings on Applicant’s application on August 29, 2007. After
consideration of Applicant’s application, the application “was tabled to the next regular
meeting on September 26, 2007 at 7:30 [p.m.]”
A ZBA may continue its hearings, provided that the time and place of the continued
hearing is announced at the prior hearing. 24 V.S.A. § 4468. To prevent deemed approval,
the continued hearing must constitute a public hearing, not only a deliberative session. In
re McEwing Services, LLC, 2004 VT 53, ¶ 16 (“[O]nly public hearings, and not ‘deliberative
sessions’ . . . , can prevent deemed approval in the absence of a timely decision from the
board.”).
A public hearing occurs if “(1) the hearing is open to the public, (2) the applicant
receives notice of the hearing, [and] (3) the board offers an opportunity for interested
persons to be heard on the issues before it.” In re Fish, 150 Vt. at 465.1
The September 26, 2007 hearing was announced at the August hearing as being a
1 In In re Fish the Vermont Supreme Court construed a slightly different and earlier
deemed-approval provision, former 24 V.S.A. § 4407(2), since amended and recodified by
statute. Both the former § 4407(2) and current § 4464(b)(1) count the deemed-approval
period from the date of the final public hearing. The former statute required the ZBA to
“act to approve or disapprove” the application within the period, while the current statute
requires the ZBA to “issue a decision” within the period.
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regular public meeting of the ZBA. From the minutes of the August and September
hearings, it appears that all three of the Fish criteria were met. Although in fact no
additional evidence ended up being taken at the September 26, 2007 hearing, that hearing
was open to the public, and Applicant received notice of the hearing at least at the August
hearing. At the September hearing, the ZBA voted first to open the Valois case on the
agenda, allowing any interested persons the opportunity to ask to testify further on the
application, before voting to go into executive session.
Even if the September hearing had not qualified as a public hearing, that is, even if
the deemed approval period had to be counted from August 29, 2007 rather than from
September 26, 2007, the forty-fifth day fell on October 13, 2007, a Saturday. V.R.C.P. 6
provides a method for “computing any period of time prescribed or allowed . . . by any
applicable statute.” By that method, the day of the initial act is not included and, if the final
day falls on a Saturday or Sunday (among other exceptions), the period runs to the end of
the next day which is not among the listed exceptions. In the present case, the deemed-
approval period therefore expired at the end of Monday, October 15, 2007, which is the
date on which the written decision was in fact issued.
The ZBA appears to have made a decision to deny the application at the September
26, 2007 meeting, as it provided its “draft decision of denial” in the minutes of that meeting,
but it did not issue a decision in writing on that day. The written decision was not issued
until October 15, and the written minutes were not approved until the regular October 24,
2007 meeting of the ZBA. Unlike under the former statute, which turned on when the ZBA
had voted or rendered a decision, the current statute requires the ZBA to “issue” its
decision in writing or in the minutes within the required period. Compare, e.g., Leo’s
Motors, Inc. v. Town of Manchester, 158 Vt. 561, 565 (1992) (decision “finally made” at
meeting), with In re: Dufault Variance Application, Docket No. 287-12-07 Vtec, slip op. at 7
(Vt. Envtl. Ct. Aug. 4, 2008) (meeting minutes reflected a vote, conclusions, and reasoning
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preventing deemed approval).
Because the written decision was issued on October 15, 2007, well within the
required time when measured from the September 26, 2007 public hearing, and was also
within the time when measured from the August 29, 2007 public hearing, deemed approval
did not occur. The fact that it was mailed out ten days later does not trigger deemed
approval “so long as the failure to send a copy is inadvertent and not the result of a policy
or purpose to withhold notice of the decision.” Leo’s Motors, 158 Vt. at 565; accord In re
Griffin, 2006 VT 75, ¶¶ 14–15, 180 Vt. 589, 592–93 (mem.).
Summary judgment must therefore be denied to Applicant and granted in favor of
the Town on Question 1; the application was not deemed to be approved.
Scope of present application - Questions 2 , 3, and 4 of the Statement of Questions
Footnote 11 on page 10 of the May 2007 decision left open only the possibility of
Applicant’s applying for off-season storage of the airplane in the storage building on his
residential property, together with the single flight to the property in the early winter and
away from the property in the late spring necessary to bring the aircraft to and from the
storage building, and then if and only if the landing strip is approvable by the aeronautical
authorities for that purpose. That is, if such a single annual flight were applied for, it
would be considered as accessory to the storage use. In such an application, the Applicant
would have the burden of showing that the off-season storage is “customarily incidental
and subordinate to” the residential use of the property, and that the single annual flight is
customarily incidental and subordinate to the off-season storage. Definition of “Accessory
Building or Use,” Article VIII of the Zoning Ordinance.
In the present application Applicant applied for such off-season storage and applied
“to mow and maintain a grass strip for the aircraft,” but did not specify any particular
number of flights he proposed to make from or to the property, using the mowed grass
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strip as a landing strip for his aircraft. Applicant also requested that, if no permit is
required, the Town so advise him in writing.
The ZBA ruled that no permit was required for storage of the aircraft or for mowing
and maintaining the grass strip, and that this Court’s May 3, 2007 decision in Docket No. 7-
1-06 Vtec had concluded the issue of use of the strip for takeoffs and landings as an
accessory use to the residential use of the property. Although the ZBA did not specifically
rule on whether off-season (winter and early spring) storage of the aircraft is similar to that
done by owners of similar items such as recreational vehicles, sailboats, motorboats, all-
terrain vehicles, and/or snow machines –– that is, whether such off-season storage is an
accessory use to the residential use of the property –– the Town does not object to
Applicant’s storing his aircraft in the storage building.2 Nor does the Town object to any
mowing or maintenance the Applicant wishes to conduct on the property.
If Applicant, by Questions 2 and 3 of this appeal, means to challenge the ZBA’s
decision allowing the storage and the mowing, the Court can proceed to address those
questions by summary judgment, as no material facts appear to be in dispute. However,
the argument at page 5 of Applicant’s “reply brief” filed on April 24, 2008, does not appear
to challenge either of these decisions. Rather, Applicant argues an issue not contained in
the Statement of Questions nor contained in the scope of the application: whether the ZBA
can regulate the use of the grass strip for landings and takeoffs if it has no authority to
regulate storage and mowing.
If Applicant is requesting to use the mowed grass strip for takeoffs and landings as
accessory to the storage request, he did not request any specific number of flights in the
2 While in this instance the ZBA decision stated that the Zoning Regulations do not
regulate the contents of a storage building, in fact the Zoning Regulations do regulate
aspects of storage, for example, “inside storage” as a cottage industry under § 518, or the
proportion of a dwelling used for storage of inventory for a home occupation under § 503.
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present application, and did not show the number of flights that would be “customarily
incidental and subordinate to” the storage use of the property. The fact that the storage
building is already built and that the storage use of the property (as accessory to the
residential use) is a permitted use, does not exempt the change of use of the mowed grass
strip from requiring a zoning permit. At the very least, by the terms of § 320 of the Zoning
Ordinance, the use of the mowed grass strip for any takeoffs or landings would have to
obtain a Certificate of Occupancy stating that the proposed use of the land conforms to the
provisions of the zoning regulations. Such use only conforms to the provisions of the
zoning regulations if it can be shown to be accessory to some allowed use.
The use of the mowed grass strip as accessory to the residential use of the property
was decided in Docket No. 7-1-06 Vtec; all that remains in the present case is whether the
use of the mowed grass strip for some limited number of takeoffs and landings is accessory
to the off-season storage use of the storage building.
Material facts are in dispute as to those aspects of Questions 2, 3, and 4 that
incorporate this remaining issue; summary judgment is DENIED.
Question 5 – Selective Treatment
Although this appeal is not brought in the enforcement context, Applicant’s
Question 5 essentially raises the question of whether he has been treated improperly and
differently from a similarly situated 1992 permittee. See In re Letourneau, 168 Vt. 539,
549–50 (1998) (describing this type of equal-protection claim). The question of whether
Applicant is similarly situated to the other applicant is essentially a question of fact.
Although those facts may not be in dispute, they have not yet been provided to the Court
on this issue in the present appeal.
The 1992 Spencer permit was not appealed; there is no indication whether it was
issued in compliance with the zoning ordinance as it existed in 1992. The Spencer airstrip is
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2000 feet long; no evidence is before the Court regarding its surroundings. If it is in use,
presumably it has received approval from the relevant aeronautical authority.
This Court’s decision on a proposed expansion of the use of the Spencer airstrip in In
re Spencer, Docket No. 24-2-98 Vtec, slip op. at 1–2 (May 17, 1999) reveals that the Spencer
property had obtained a subdivision permit in 1996, which also was not appealed, and that
the Spencer residential lot was a separate subdivided lot (Lot 4) in that subdivision, distinct
from Lot 6 which contained only the airstrip. This Court’s decision in Spencer stated that
“[b]ecause there is no primary use on Lot 6 other than the airstrip, this application does not
raise or resolve the question of whether an airstrip on a large residential property could
ever qualify as an accessory use to the single-family residential use of the parcel.” Id. at 2.
If Applicant wishes to pursue Question 5 of the Statement of Questions, he should be
prepared to address whether his property or application is “similarly situated” to the
Spencer property or application.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
summary judgment is GRANTED in favor of the Town on Question 1; the application was
not deemed to be approved. Questions 2 through 5 remain for trial or for further motions
consistent with this decision. A telephone conference has been scheduled (see enclosed
notice) to discuss further scheduling in this matter.
Done at Berlin, Vermont, this 23rd day of September, 2008.
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Merideth Wright
Environmental Judge
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