Bowen CU Application

STATE OF VERMONT
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ln res Bowen Conditional Use Application } Docl2009 VT 23, ‘l[ 28 (citing West v. West 131 Vt. 621, 623 (1973)). A Rule 59(e)
motion ”allows the trial court to revise its initial judgment if necessary to relieve a party
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against the unjust operation of the record resulting from the mistake or inadvertence of
the court and not the fault or neglect of a party." Rubin v. Sterling Enterprises, lnc., 164
vt_ 582, sss (1996) (ciang in re Kostenbiatt 161 vt 292', 302 (1994)).
l\/lore specifically, the limited functions of a motion to alter or amend a judgment
are "to correct manifest errors of law or fact on which the decision was based, to allow
the moving party to present newly discovered or previously unavailable evidence, to
prevent manifest injustice, or to respond to an intervening change in the controlling
law.” Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (quoting 11
Wright, l\/liller, & l2003 VT 49, jj 6, 175 Vt.
335 (paramount function of the court is to give effect to the legislative intent). Thus, as
fully discussed in the Summary judgment Decision, slip op. at 7, the Court's
construction of the term ”outdoor recreation" under § r7.2 is based on the 2005 Zoning
Bylaws’ intent to restrict the uses allowed in the Conservation 1 zoning district to those
compatible with the purposes of the district stated in the ordinance: ”to protect the
scenic and natural resource values of [the Conservation 1 district] for . . . outdoor
recreation,” and to encourage ”only limited low-density development” in that district
§ 4.7.1. l
Also as fully discussed in the Summary judgment Decision, slip op. at 7, courts
interpret a general term that follows a list of specific terms to be consistent with those
specific terms. See Appeal of Chatelain, 164 Vt. 597, 597-98 (1995-). Thus, the general
term ”and similar'places of outdoor recreation" cannot be given the unlimited reading
that Applicant suggests lnstead, it can only include those uses that are substantially
similar to the specifically listed uses. As the Court concluded in the Summary
judgment Decision, the proposed mine dirt importing, sales, and screening/sluicing
business is not substantially similar to the specifically listed activities
ln Appeal of Chatelain the Supreme Court analyzed the use category
”community facility," which was defined in the zoning ordinance as ”[anyj meeting
hall, place of assembly, museum, art gallery, library, scho,ol, church, or other similar
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type of establishment which is not operated primarily for profit, excluding [aj
government facility," Chatelain 164 Vt. at 597-98. The Supreme Court concluded that
the definition did not include, as an ”other similar type of establishment," the proposed
building intended to house the Bristol Rescue Squad. The Supreme Court determined
that the proposal was not similar to the types of establishment listed in the definition
because it would not be similarly quiet as Were the listed uses, and because, unlike the
listed uses, the primary activities of the Rescue Squad would not occur within the
proposed building M.
Although the Summary judgment Decision did not cite Appeal of Chatelain! this
Court applied the same type of analysis as in Chatelain in concluding that Applicant’s
proposed mine dirt importing, sales, and screening/sluicing business is not similar to
the specific uses listed in the definition of outdoor recreation in the 2005 Zoning Bylaws.
Applicant notes that four of the ”places of outdoor recreation" listedin the
definition-skating rinks, tennis courts, swimming pools, and archery ranges_could be
provided either in indoor or outdoor facilities Applicant argues that such facilities
therefore do not rely on the scenic and natural resources values of the surrounding land
or need to be located in the Conservation 1 district Applicant’s l\/lot. for Reargument at
2. Applicant asks the Court to conclude that the proposed mine dirt importing, sales,
and screening/sluicing business, which does not rely on the scenic and natural resources
values of the surrounding land or need to be located in the Conservation 1 district,
should therefore fall Within the outdoor recreation use category Applicant’s Reply to
Appelle'e's l\/lem. in Opposition at 2.
The fact‘that some of the places of outdoor recreation listed in the definition
could instead be provided in indoor facilities does notchange the Court’s conclusion
that the proposed mine dirt importing, sales, and screening/sluicing business is not
similar to the uses listed in the "outdoor recreation" definition lndeed, the ordinance
also contains a use category for ”indoor recreation facility” that includes indoor
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swimming pools and skating rinks, as well as ”hobby workshops” and ”similar places
of indoor commercial recreation" As discussed in the Summary judgment Decision,
slip op. at 8, Applicant’s proposed mine dirt importing, sales, and screening/sluicing
business is similar to a pottery studio or similar commercial business in which supplies
are sold to the customer and the necessary equipment to work with those supplies is
provided to the customer on-site. The proposed mine dirt importing, sales, and
screening/sluicing business, if it were to be conducted indoors, might well come within
the ”indoor recreation facility” definition, because it is similar to a "hobby -workshop”
and is a place of ”commercial recreation" But "indoor recreation facilities" are not
allowed uses in the Conservation 1 zoning district, they are only allowed as-permitted
uses in the Commercial zoning district, and as conditional uses in the Commercial/Light
lndustrial zoning district
The test of whether Applicant’s proposed mine dirt importing, sales, and
screening/sluicing business is a ”similar place of outdoor recreation" to those listed int
the definition is not determined by how much the participants enjoy the activity or
whether they think of it as outdoor recreation, but whether the activity is objectively
similar to those listed in the definition The Court viewed the video exhibit submitted
by Applicant as illustrative of Applicant’s intended proposal, as proffered in her
Supplemental Affidavit filed August 13, 2010, and fully considered both her description
of the proposal and the video illustration of the proposal in connection with the Court’s
determination that Applicant’s proposed mine dirt importing, sales, and
screening/sluicing business is not similar to the places of outdoor recreation listed in the
definition The video exhibit raises no disputed questions of fact regarding the nature l
of the activity, and does not suggest that any evidentiary hearing is required Rather, it
simply illustrates Applicant’s ' description of the proposed activity, which is not
contested by the Town.
Accordingly, based on the foregoing, it is hereby ORDERED and ADjUDGED
that Appellant-Applicant's l\/lotion to Alter or Amend the judgment is DENIED,
concluding this case.
Done at Berlin, Vermont, this 10th day of February, 2011.
M aaa
l\/lerideth Wright
Environmental judge