STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
}
In re: Moore Accessory Structure Permit } Docket No. 161-8-09 Vtec
(Appeal of Smith and Siebeck) }
}
Decision and Order on Cross-Motions for Summary Judgment
Appellants Gary Smith and Betsy Siebeck (Appellants) appealed from a July
18, 2009 decision of the Zoning Board of Adjustment (ZBA) of the Town of Pomfret,
related to property of A. David Moore located at 6872 Pomfret Road. Appellants are
represented by Marsha Smith Meekins, Esq.; Appellees A. David Moore, his sister
Emily Moore Grube, and the Moore Family Partnership, LP (Appellees) are
represented by A. Jay Kenlan, Esq.; and the Town of Pomfret is represented by
Amanda S.E. Lafferty, Esq.
The ZBA decision upheld the Zoning Administrator’s grant of Permit #08-8 to
construct a building on David Moore’s property to house a wood planer and to store
wood shavings. The ZBA decision also upheld the Zoning Administrator’s March
25, 2009 and April 15, 2009 determinations that the existing structures and uses on
David Moore’s property were in compliance with the Pomfret Zoning Ordinance.
The parties have moved for summary judgment as to whether the proposed
new building is exempt or requires a permit from the ZBA under Part 7 of the
Zoning Ordinance, and whether the lumber processing operations (sawing, planing,
and drying lumber) on the property constitute violations of the Zoning Ordinance or
of the existing permits applicable to the property. The following facts are
undisputed unless otherwise noted.
The Moore and Hewitt families have owned and operated farming property
1
near Hewitts Corner in the Town of Pomfret, approximately a thousand acres in
area, for over 275 years. As of the adoption of zoning in Pomfret in approximately
1972, the farm property was owned by Hewitt and Dorothy Moore, the parents of A.
David Moore (David Moore), John Moore, and Emily Moore Grube. They cleared
fields for hay and for other field crops, bred and raised livestock and farm animals,
and sold fruit and vegetables grown in their orchards and fields. No map or
diagram of the farm property and its buildings as they existed as of 1972 (or at any
other time) has been provided to the Court in connection with the present motions.
Since 1969, David Moore has been a professional custom builder and restorer
of tracker pipe organs. From 1969 until 1973 he used an existing two-story farm
building, approximately 30’ x 60’ in area, for his pipe organ construction and
restoration business. This building is or was located near what is referred to in
David Moore’s affidavit as the Farm Homestead.1 The building housed hand tools,
and woodworking machinery and power equipment, including a 16” planer, as well
as lumber and other materials.
Section 3.1 of the Zoning Ordinance in effect in 1973 provided that the entire
Town is classified as a single Rural Residential zoning district. Part 5 of the 1973
Zoning Ordinance governed uses and structures exempt from any requirement to
obtain a permit, Part 6 governed uses and structures requiring a non-discretionary
permit from the Zoning Administrator, Part 7 governed uses and structures
requiring a permit from the ZBA, and Part 8 governed uses prohibited within the
Town. Nothing in the 1973 Zoning Ordinance (or any subsequent zoning ordinance
provided to the Court) limits the number of different uses or structures that may be
conducted or placed on a single parcel of property.
1
Material facts may be undisputed, but have not been provided to the Court, as to
the locations of this and the other three (or four) dwellings referred to in Appellees’
affidavits and statements of material facts.
2
In 1973, Hewitt and Dorothy Moore deeded an approximately ten-acre parcel
from the farm property to David Moore (the David Moore Parcel) for him to build a
workshop for his pipe organ construction and restoration business.2 He applied to
the ZBA for approval of a so-called “non-conforming use3 permit under Part 7 of
Ordinance,” for the construction of a new two-story, 80’ x 38’ building on the David
Moore Parcel, set back 245 feet from the road right-of-way, for use as an “organ
shop” (the “Organ Shop Building”).4 In May of 1973, the ZBA granted approval5
and a permit was issued (Permit #29: “the 1973 Organ Shop Permit”); it was not
appealed. David Moore completed construction of the Organ Shop Building and
began using it for his business as of the winter of 1973–74.
2
The deed gave the grantors a right of first refusal to repurchase the property and,
as long as the grantors owned adjacent property, required consent of the grantors
for the construction of any buildings other than the pipe organ shop on the parcel.
Approximately 80% of this parcel remains in tillage and pasture use by Emily Grube
as of the present.
3
Section 4.5 of the Zoning Ordinance defines “conforming use” in full as “single,
one-family or two[-]family residence, agricultural buildings, home business”; § 4.6
defines “non-conforming use” as all other uses. See discussion at 14–15 below.
Section 7.2 of the Zoning Ordinance in effect in mid-1973 authorized the ZBA to
issue a permit for uses other than those listed as “conforming uses” upon finding
that the proposal “will not adversely affect the capacity of existing or planned
community facilities, the character of the area affected, traffic on roads or highways
in the vicinity, bylaws then in effect, and the public health . . . and general welfare.”
These standards reflected the statutory requirements for conditional use approval
(rather than those for nonconforming uses). See 24 V.S.A. § 4407(2)(A-E)(2003).
4
Paragraphs 14 through 17 of David Moore’s Affidavit reflect that he obtained title
to this property after an initial application for the same structure and use was
rejected by the ZBA due to his not having title to the underlying land. The parties
have not provided a copy of this rejected permit; the ZBA decision to reject the
initial permit application for that reason does not appear to have been appealed.
5
No party has provided a written decision of the ZBA or the minutes of the
meeting at which the vote was taken to grant this approval. No conditions appear
on the portion of the application form in which the ZBA’s decision is noted as
having been approved.
3
As of the present, David Moore uses the Organ Shop Building for his pipe
organ construction and restoration business. David Moore and two associates use a
variety of hand tools, woodworking machinery, and power equipment in the Organ
Shop Building. A 16” Powermatic wood planer was installed in the Organ Shop
Building in 1973–74. It planes one side of a board at a time but does not plane or
mill the edges of the board. Until acquisition of the Newman Planer in 2008, the
Powermatic wood planer was used to plane lumber both for the pipe organ
construction and restoration business and for the farm buildings and residences.
In 1974, Hewitt and Dorothy Moore deeded a 135-acre parcel from the farm
property to Wally and Emily Grube (the Grube Parcel); Emily Grube continues to
manage it as an apple orchard and to grow berries and other fruit.
In 1980, A. David Moore applied to the Zoning Administrator under Part 6 of
the Zoning Ordinance6 for a permit to build a new one-story, 45’ x 14’ “accessory”
building on the David Moore Parcel, set back 350 feet from the center of the road, for
use as a “sawmill”. The Zoning Administrator issued a permit, which was not
appealed; however, the building was not built and the permit expired.
In 1982, David Moore Inc., through A. David Moore, applied to the Zoning
Administrator under Part 6 of the Zoning Ordinance for a permit to build a new
one-story, 46’ x 28’ “accessory” building on the David Moore Parcel, set back 160
feet from the center of the road, for use as a “sawmill” (the “Sawmill Building”).
Nothing appears on the permit application regarding the type or size of the saw
blade, the source of power for the saw, or the proposed storage of logs on the
6
Section 6.3 of the Zoning Ordinance authorizes the Zoning Administrator to issue
permits for the “construction or emplacement of conforming structures for
agricultural use larger than 24 feet x 24 feet x 15 feet high.” Part 6 also authorizes
the Zoning Administrator to issue permits for single conforming one-family or two-
family residences on lots at least two acres in area with at least 90 feet of road
frontage, and to issue permits for new home businesses.
4
property, nor regarding the source of the logs nor the destination of the lumber
produced by the sawmill’s operation. The Zoning Administrator issued the permit
(Permit #407: “the 1982 Sawmill Permit”); it was not appealed.
The Sawmill Building was completed by early 1983. It housed a circular
sawmill with a 48-inch blade, operated by a tractor power takeoff. Since 1983, David
Moore has stockpiled softwood logs outside on the David Moore Parcel near the
Sawmill Building, and has stacked the sawn softwood lumber for air drying outside
on the David Moore Parcel near the Sawmill Building.
Effective on May 19, 1988, the legislature first enacted the provision that has
been expanded over time to the present 24 V.S.A. § 4413(d), then providing in full
that:
[n]o [municipal] plan or bylaw adopted under this chapter7 shall
restrict accepted agricultural or silvicultural practices as defined by the
commissioner of agriculture or the commissioner of forests, parks, and
recreation, respectively, under 10 V.S.A. §§ 1021(f) and 1259(f).
1987, No. 200 (Adj. Sess.), § 31 (then codified at 24 V.S.A. § 4494).
At some time after 1974 but before 1990, David Moore constructed an
attached shed addition on the west end of the Organ Shop Building for storage of
firewood to heat the Organ Shop building (the “Organ Shop Woodshed Addition”).
He did not apply for a zoning permit or for an amendment to the 1973 Organ Shop
Permit for this addition.
In 1993, Dorothy Moore, John Moore, David Moore, and Emily Grube formed
the Moore Family Farm Limited Partnership (the Farm Partnership) for the purpose
of maintaining the farm in cooperative agricultural use by family members.
7
Oddly, all the editions of the Pomfret Zoning Ordinance recite that they are
adopted under 24 V.S.A. chapter 91; this is undoubtedly a misstatement that has
been perpetuated from one amendment to another, as chapter 91, in existence since
1964, governs Consolidated Water Districts. The state zoning enabling statute is
found instead at 24 V.S.A. ch. 117.
5
Dorothy Moore transferred all of the remaining farm property in her ownership to
the Farm Partnership (the Partnership Property). David Moore, John Moore, and
Emily Grube also own, as tenants in common, a parcel of property deeded to them
by their aunt Persis Johnson (the Johnson Parcel), contiguous to the Partnership
Property.8 The affidavits submitted by David Moore, John Moore, and Emily Grube
reflect that they consider the land consisting of the Partnership Property, the
Johnson Parcel, the Grube Parcel, and at least the cultivated portion of the David
Moore Parcel, to be a farm jointly managed by them as a whole.9 At the present time
approximately 100 acres of the Farm-related Properties are used as crop land, 50
acres are used as pasture, 200 acres are managed as sugarbush, and 850 acres are
managed as forest land, although no evidence has been provided in connection with
these motions of any forest management plan, either for the sugarbush or for the
other forest land.
As well as the buildings and structures specifically described in relation to the
David Moore Parcel, six barns and four residences are located on the Farm-related
Properties. The “orchard barn” is located on the Grube Parcel. The “Sherburne
Farm barn and the “large homestead barn” are located on the Partnership Property.
Material facts are undoubtedly not disputed, but have not been provided to the
Court, as to the specific parcel location of the remaining three barns. One of the
single-family residences, occupied by John Moore and his family, is located on the
Johnson Parcel; another of the single-family residences, occupied by David Moore
and his wife, is located on the Partnership Property. Material facts are undoubtedly
not disputed, but have not been provided to the Court, as to the specific parcel
8
Material facts are in dispute, or at least have not been provided to the Court,
regarding the date of this transfer and the size of the Johnson Parcel.
9
As necessary, this decision will refer to these four properties collectively as “the
Farm-related Properties.”
6
location of the other two single-family residences, one of which is occupied by Emily
Grube, and one of which is rented out.
The three siblings have divided management responsibilities among
themselves as follows for the agricultural and silvicultural activities on the Farm-
related Properties. John Moore manages the cropland, including tilling, fertilizing,
harvesting, and selling the crops produced on the cropland. Emily Grube raises the
beef cattle, maintains the greenhouses, raises and sells potted plants and Christmas
trees, operates the apple and berry orchards, manages the sugarbush and
sugarhouse, and sells maple syrup and other products of the farm. David Moore
manages and improves the woodlands and sugarbush,10 harvests logs for lumber
and firewood, saws and mills lumber, and provides sawdust and shavings for
livestock bedding, as well as operating his pipe organ design and renovation
business. The lumber milled by David Moore is used for building repair and
construction of the barns and other agricultural buildings and of the residences on
the Farm-related Properties, as well as in his pipe organ construction and restoration
business. He has also provided lumber to his son, a professional forester, in return
for his son’s forestry services to the Farm Partnership; the lumber was used in the
construction of his son’s residence in another town.
Effective June 21, 1994, the legislature revised the provision that is now
further revised and codified as 24 V.S.A. § 4413(d), then providing in full that:
(a) For purposes of this section, “farm structure” means a building for
housing livestock, raising horticultural or agronomic plants, or
carrying out other practices associated with agricultural or farming
practices, including a silo, as “farming” is defined in [10 V.S.A.
§ 6001(22)], but excludes a dwelling for human habitation.
10
Material facts have not been provided to the Court as to the location of the
woodlands or the sugarbush on any of the Farm-related Properties.
7
(b) No plan or bylaw adopted under this chapter shall restrict accepted
agricultural or farming practices, or accepted silvicultural practices,
including the construction of farm structures, as such practices are
defined by the commissioner of agriculture or the commissioner of
forests, parks and recreation, respectively, under [10 V.S.A. §§ 1021(f)
and 1259(f) and 6 V.S.A. § 4810].
(c) A person shall notify a municipality of the intent to build a farm
structure, and shall abide by setbacks approved by the commissioner
of agriculture, food and markets. No municipal permit for a farm
structure shall be required.
1993, No. 233 (Adj. Sess.), § 92 (then codified at 24 V.S.A. 4495).
In 1997, A. David Moore applied to the Zoning Administrator under Part 6 of
the Zoning Ordinance for a permit to build a new one-story, 45’ x 22’ “accessory”
building on the David Moore Parcel, set back 250 feet from the center of the road, for
use as a “garage” for “storage [and] vehicle storage” (the “Garage/Storage
Building”). The Zoning Administrator issued the permit (Permit #97-17: “the 1997
Garage/Storage Permit”); it was not appealed. David Moore uses the
Garage/Storage Building to store lumber, equipment, machinery, and vehicles.
Material facts have not been provided as to whether the items stored in this building
pertain to the pipe organ construction and restoration business, or to activities
related to the Farm-related Properties, or to both.
After Dorothy Moore’s death in 1999, David Moore, John Moore, and Emily
Grube became the general partners of the Farm Partnership, each with a one-third
interest. They, together with their respective children, are the limited partners of the
Farm Partnership.
In 1999, the Farm Partnership purchased a WoodMizer bandsaw sawmill,
operated by its own gasoline engine, for David Moore to use instead of the original
circular sawmill.11 David Moore constructed a 27’ by 11’ open shed structure, less
11
The original circular sawmill remains in the Sawmill Building but as of the date of
8
than 15 feet in height, on the David Moore Parcel behind the Organ Shop Building,
to house the WoodMizer bandsaw sawmill (the “WoodMizer Bandsaw Sawmill
Shed”). Neither David Moore nor the Farm Partnership applied for a zoning permit
for the WoodMizer Bandsaw Sawmill Shed, considering it to be exempt under § 5.4.
Under § 5.4, the “construction or emplacement of a conforming new unattached
accessory structure not larger than 24 feet x 24 feet x 15 feet high” does not require a
permit, regardless of whether it is for an agricultural use or for any other use.12 The
WoodMizer bandsaw sawmill is more efficient, safer and easier to operate, and less
noisy than the circular saw sawmill.
From 1999, David Moore’s use of the WoodMizer bandsaw sawmill entirely
replaced his use of the circular saw sawmill to saw specialty hardwood lumber for
the pipe organ construction and restoration business and to saw lumber for use on
the Farm-related Properties. With regard to logs cut from the Farm-related
Properties, he uses the WoodMizer bandsaw sawmill to provide lumber for the
construction, maintenance, and repair of buildings and structures on the David
Moore Parcel and the Farm-related Properties, including for the residences, and to
provide, as a byproduct, slab wood used for fuel for sugar making, and to heat the
Organ Shop and the residences. Facts are disputed, but may not be material to this
appeal, as to when and how much lumber or byproduct has been sold by David
Moore to others unrelated to the Farm-related Properties; his Supplemental
Affidavit states that it is incidental to and does not exceed 10% of the production in
any year and does not drive his decision of how much lumber to saw and mill in any
year. Supplemental Affidavit of A. David Moore at ¶ 18.
In 2001, David Moore constructed an attached storage bin addition on the
the motions is no longer in use.
12
Structures larger than that size may be approved by the Zoning Administrator
under § 6.3 if they are “conforming structures for agricultural use.”
9
north side of the Organ Shop Building for the storage of sawdust and wood
shavings (the “Organ Shop Sawdust/Shavings Bin Addition”). He did not apply for
a zoning permit or for an amendment to the 1973 Organ Shop Permit for this
addition. The Organ Shop Sawdust/Shavings Bin Addition replaced an old horse
trailer used for sawdust and shavings storage since 1973.
In 2002, Appellees constructed a sap pump house (the “Sap Pump House”) on
the David Moore Parcel, enclosing a pump used for pumping sap from maple trees
as part of Emily Grube’s maple sugaring operation. Neither she nor David Moore
nor the Farm Partnership applied for a permit for the Sap Pump House, as it is
smaller than 24’ wide x 24’ deep x 15’ high, considering it to be exempt under § 5.4.
In 2003, David Moore constructed a sap storage shed (the “Sap Storage
Shed”) to house a maple sap storage tank for use in the Emily Grube maple sugaring
operation. Neither she nor David Moore nor the Farm Partnership applied for a
permit for the Sap Storage Shed as it is smaller than 24’ wide x 24’ deep x 15’ high,
considering it to be exempt under § 5.4.
Between 2001 and 2003, David Moore constructed a 34’ x 12’ lumber drying
kiln (the Lumber Drying Kiln), referred to both as a “solar” dry[ing] kiln and as a
“lean-to” dry[ing] kiln, used to kiln-dry lumber that is sawn on the David Moore
Parcel. Facts have not been provided to the Court regarding whether, if it is a “lean-
to” construction, the Lumber Drying Kiln is in fact attached to one of the other
buildings. David Moore did not seek a zoning permit for the Lumber Drying Kiln,
considering it to be exempt under § 5.4 as being less than 15 feet in height and
having a footprint less than the total square footage of the 24’ x 24’ limitation in
§ 5.4.
Effective July 1, 2004, the legislature recodified and further revised the
statutory provision regulating municipal permitting of farm structures and
regulation of accepted agricultural or silvicultural practices; 24 V.S.A. § 4413(d)
10
provides in full that:
(d) A bylaw under this chapter shall not regulate accepted agricultural
and silvicultural practices, including the construction of farm
structures, as those practices are defined by the secretary of
agriculture, food and markets or the commissioner of forests, parks
and recreation, respectively, under [10 V.S.A. §§ 1021(f) and 1259(f)
and 6 V.S.A. § 4810].
(1) For purposes of this section, “farm structure” means a building,
enclosure, or fence for housing livestock, raising horticultural or
agronomic plants, or carrying out other practices associated with
accepted agricultural or farming practices, including a silo, as
“farming” is defined in [10 V.S.A. § 6001(22)], but excludes a dwelling
for human habitation.
(2) A person shall notify a municipality of the intent to build a farm
structure, and shall abide by setbacks approved by the secretary of
agriculture, food and markets. No municipal permit for a farm
structure shall be required.
(3) A municipality may enact a bylaw that imposes forest
management practices resulting in a change in a forest management
plan for land enrolled in the use value appraisal program pursuant to
32 V.S.A. chapter 124 only to the extent that those changes are
silviculturally sound, as determined by the commissioner of forests,
parks and recreation, and protect specific natural, conservation,
aesthetic, or wildlife features in properly designated zoning districts.
These changes also must be compatible with 32 V.S.A. § 3755.
2003, No. 115(Adj. Sess.), § 95.
David Moore transports the logs harvested from the Partnership Property to
the David Moore Parcel by his log truck. In 2007 he transported the equivalent of
ten to twelve full log truck loads onto the David Moore Parcel for sawing. In 2007,
David Moore operated the WoodMizer bandsaw sawmill for a total of 136 hours. In
2008, David Moore operated the WoodMizer bandsaw sawmill for a total of 79 hours
(calculated from the facts provided regarding the 2007 and 2009 rates and that the
average of the three years was 85 hours per year). In 2009, David Moore operated
the WoodMizer bandsaw sawmill for a total of 40 hours. These facts may be
11
relevant to the § 11.3 criteria for a Part 7 permit, but may not be material to any
issues raised in the present appeal.
Softwood lumber produced from logs harvested on the Farm-related
Properties has been used to construct or repair the Sawmill Building, the Organ
Shop Sawdust/Shavings Bin Addition, the Garage/Storage Building, the Sap Pump
House, the WoodMizer Bandsaw Sawmill Shed, and the Lumber Drying Kiln on the
David Moore Parcel; the orchard barn, greenhouse and plant sales building, and
sugarhouse on the Grube Parcel; and the Sherburne Farm barn, large homestead
barn, and the David Moore residence on the Partnership Property. Lumber
produced from hardwood logs, whether from the Farm-related Properties or
acquired from third parties, is used in the pipe organ construction and restoration
business and is stored in the Organ Shop Building and planed there on the
Powermatic planer.
In the summer of 2008, David Moore acquired a 16” x 6” Newman planer,
supplementing but not replacing his use of the Powermatic planer located in the
Organ Shop Building. Both planers are used exclusively to plane lumber that is
produced by the sawmill on the David Moore Parcel. The Newman planer
simultaneously planes both sides and both edges of a board, and is therefore much
faster than the Powermatic planer.
In late fall of 2008, David Moore moved the Newman planer into the
Garage/Storage Building to run it from the tractor power takeoff. David Moore
operates the Newman planer only as needed to plane lumber for buildings,
structures and residences on the Farm-related Properties, and occasionally to plane
wood for the pipe organ construction and restoration business. In calendar year
2008, David Moore used the Newman planer for a total of twenty hours for all
purposes, and in calendar year 2009, he used it for a total of five hours for all
purposes. The application at issue in the present appeal seeks a permit to construct
12
a new 36’ x 18’ building, 18’ in height, on the David Moore Parcel to house the
Newman planer and to store wood shavings produced during its operation (the
“Newman Planer/Shavings Building”).
In 2009, Appellants also asked the Zoning Administrator to take enforcement
action, arguing that the lumber-processing operations on the David Moore Parcel
violated the Zoning Ordinance, the applicable permits, and the state statute.
Appellants’ appeals to the ZBA of the Zoning Administrator’s rulings on the
enforcement request were consolidated with the appeal related to the application for
approval of the Newman Planer/Shavings Building. The ZBA’s July 18, 2009
decision that is the subject of the present appeal addressed the requests for
enforcement as well as the Newman Planer/Shavings Building application.
Appellants’ Request for Enforcement
In their attorney’s letter dated February 17, 2009, Appellants requested the
Zoning Administrator to determine that David Moore’s “lumber processing
operation” is in violation of the Zoning Ordinance, or of the state statute governing
the expansion of non-conforming uses, and to take enforcement action. By letter
dated March 25, 2009, the Zoning Administrator first determined that the structures
and uses on the David Moore Parcel were in compliance with the Zoning Ordinance,
except for the 34’ by 12’ Lumber Drying Kiln and the 27’ by 11’ WoodMizer
Bandsaw Sawmill Shed, stating that those two structures required permits as they
are each larger than the 24’ x 24’ exemption in § 5.4. The letter allowed David Moore
to take any of four possible actions to bring each of these structures into compliance:
to apply for and be granted a permit; to demonstrate that the structure was
constructed more than 15 years ago; to reduce the structure to a size no greater than
24’ x 24’; or to justify that the structure is “exempt as a farm structure.”
David Moore asked the Zoning Administrator to reconsider this conclusion,
13
arguing that the two structures were being used for agricultural or silvicultural
purposes, and were therefore statutorily exempt from any municipal regulation
under 24 V.S.A. § 4413(d), as well as arguing that the § 5.4 exemption should be read
to establish a footprint or area exemption of 576 square feet, rather than limiting
each length and width dimension separately to 24 feet. By letter dated April 15,
2009, the Zoning Administrator agreed with the argument that the two structures
are “part of the Moore Farm agricultural operation and therefore are statutorily
exempt.” He concluded that all the structures and uses on the David Moore Parcel
were in compliance with the Zoning Ordinance, and therefore declined to take
enforcement action.
The Pomfret Zoning Ordinance is unusual in that it does not divide the Town
into different zoning districts in which different uses are specifically allowed, either
as permitted uses requiring Zoning Administrator approval or as conditional uses
requiring ZBA approval. Rather, § 7.1 of the Zoning Ordinance simply requires that
any proposal at all, other than those covered by Part 6, exempt under Part 5, or
prohibited under Part 8, must apply for and obtain a permit from the ZBA under
Part 7.13 However, the way in which the Pomfret Zoning Ordinance functions is
somewhat obscured by that ordinance’s unusual usage of the terms “conforming
use” and “non-conforming use.”14
13
Buildings and structures subject to Part 7 also must comply with the setback
requirements in § 7.4, requiring a 40-foot side setback, and requiring a road setback
measured either as 60 feet from the edge of a public right-of-way or 85 feet to the
center of the traveled way, whichever distance is greater.
14
The parties should note that, as of September 1, 2005, the savings clause of the
2004 statutory changes to 24 V.S.A. ch. 117 superseded inconsistent municipal
regulations regarding nonconformities, among other things. 24 V.S.A. § 4481. That
section also gave municipalities until September 1, 2011 to come into conformance
with any provisions of the state statute that did not have an earlier superseding date.
14
Unlike the state statute, which defines nonconforming use as one that does
not conform to the requirements of the present bylaws but did conform to the prior
ones,15 § 4.5 of the Zoning Ordinance defines “conforming use” in full as “single,
one-family or two[-]family residence, agricultural buildings, home business,” and
defines “non-conforming use” in § 4.6 as all other uses.16 In that sense, the ordinance
has used the term “conforming use” to mean what the state statute calls uses
“permitted as of right” and has used the term “non-conforming use” to mean what
the state statute calls “conditional uses requiring [ZBA] review and approval.” 24
V.S.A. § 4414(1). Thus, although Part 7 of the Ordinance is entitled “Non-
Conforming Uses Requiring Permits” from the ZBA, its text reflects the statutory
requirements for issuing conditional use permits rather than those otherwise
regulating nonconformities. Compare 24 V.S.A. § 4414(3)(A)(i–v) (authorizing
conditional use approval by an appropriate municipal panel if the proposal does not
result in an undue adverse effect on the capacity of community facilities, the
character of the area, traffic in the vicinity, bylaws in effect, and renewable energy
resources) with Zoning Ordinance § 11.3 (authorizing the ZBA to issue a Part 7
permit upon finding that the proposal conforms with the Town Plan and bylaws,
and will not unreasonably burden municipal services, create a health hazard, create
a pedestrian or vehicular hazard, create a public nuisance or adversely affect the
15
The statutory definition also includes “a use improperly authorized as a result of
error by the administrative officer.” 24 V.S.A. § 4303(15). The state statute then
requires municipalities to define how nonconformities will be addressed, and
authorizes them to regulate or limit the expansion or extension of nonconforming
uses, structures, and lots. 24 V.S.A. § 4412(7). The Pomfret Zoning Ordinance does
not define how nonconformities, as defined in the state statute, are to be addressed.
16
By contrast, §§ 4.7 and 4.8 define the terms “conforming structure” and non-
conforming structure” according to whether the structure does or does not conform
to the required setbacks.
15
character of the area or the general welfare of the community) and § 11.10
(authorizing the ZBA to impose reasonable conditions).
Appellants argue that the only use approved for the David Moore Parcel was
the pipe organ construction and restoration business contemplated by the Organ
Shop Permit, and that the wood processing uses are not authorized unless they are
accessory to the pipe organ construction and restoration business. However, unlike
many other zoning ordinances, nothing in the Pomfret Zoning Ordinance prohibits a
landowner from making multiple uses of a single parcel of property, whether those
uses are residential, agricultural, or business or other uses. Nor does anything in the
Pomfret Zoning Ordinance, or in the state statutes in effect at the time the various
buildings and uses were placed on the David Moore Parcel, prohibit the members of
a partnership from conducting agricultural and silvicultural uses on multiple parcels
of property, whether owned by the partnership, owned by the individual partners,
or leased from others.17
Enforcement Request Related to Scope of Existing Permits
Appellants argue that, by bringing logs to the David Moore Parcel from the
Farm-related Properties, by sawing those logs, and by planing the resulting lumber,
17
The Vermont Supreme Court’s decision in In re Ochs established that crops
grown on leased land can nevertheless be considered to be produced “on the farm”
under the definition of farming in 10 V.S.A. § 6001(22), as “the on-site storage,
preparation and sale of agricultural products principally produced on the farm,” if
the applicants exercise sufficient control over the leased lands. 2006 VT 122, ¶¶ 13–
14, 181 Vt. 541 (2006) (mem.). In Ochs, the storage and preparation of apples for
shipment at an apple orchard qualified as farming, as defined in 10 V.S.A.
§ 6001(22), even though some of the apples processed for shipment from the facility
were grown on leased lands rather than in the orchard on the same property as the
storage and shipment building. The Court considered the apples grown at off-site
leased orchards to be produced “on the farm” because applicants exercised
sufficient control over the leased lands: they made the day-to-day decisions
concerning the apple cultivation, used their own machinery, and did all of the work
pruning and spraying the trees and picking the apples themselves. Id. at ¶ 14.
16
David Moore is exceeding the scope of the uses allowed under the three permits
applicable to the David Moore Parcel, and has breached the terms of those permits.
The 1973 Organ Shop Permit was issued by the ZBA and became final
without appeal. It cannot now be challenged, either directly or indirectly. 24 V.S.A.
§ 4472(d). However, a permittee may be held to the scope of a permit and any
conditions imposed in it by the municipal panel. “[T]he finality and exclusivity
doctrines embodied in § 4472(d) do not preclude an interested person from taking
action to ensure compliance with the terms of a zoning permit.” In re Charlotte
Farm & Mills, 172 Vt. 607, 608 (2001) (mem.). Interested persons may request
enforcement from the zoning administrator and may later appeal the zoning
administrator’s determination that the activities are within the scope of a particular
permit. Id. (citing In re Sardi, 170 Vt. 623, 626 (2000)). Further, enforcement cases
brought by municipalities or interested parties under 24 V.S.A. § 4470(b) to enforce
decisions of municipal panels are not subject to the statute of limitations in 24 V.S.A.
§ 4454(a).
The scope of a permit is defined by what was applied for in the application
and was approved, including any conditions that may have been imposed by a
municipal panel. See, e.g., In re Beliveau Notice of Violation, No. 274-12-07 Vtec,
slip op. at 4 (Vt. Envtl. Ct. Sept. 12, 2008) (Wright, J.), aff’d No. 2010-070 (Vt. July 16,
2010) (unpublished mem.) (citing Town of Bennington v. Hanson-Walbridge Funeral
Home, Inc., 139 Vt. 288, 292–93 (1981)). The 1973 Organ Shop Permit therefore
allows the use of the building and property for the pipe organ construction and
restoration business.18
18
Because the Organ Shop use holds a ZBA-issued permit issued in compliance
with the zoning ordinance in effect at the time, it is not a nonconforming use as that
term is used in the state statute. 24 V.S.A. § 4303(15).
17
However, the 1973 Organ Shop Permit contains no express conditions, and no
party suggests that any are contained in any written decision issued by the ZBA on
that application. Therefore, nothing in the 1973 Organ Shop Permit prohibits the
continued use of some or all of the property for agriculture or other uses not
requiring a zoning permit. To be enforceable, conditions must be expressly stated
either on the face of the permit or the permit decision. In re Kostenblatt, 161 Vt. 292,
299 (1994). Representations made to the zoning board by an applicant are not
enforceable unless expressly incorporated as conditions of the permit, Kostenblatt,
161 Vt. at 299, and a board’s findings of fact may not function as implied permit
conditions. In re Stowe Club Highlands, 164 Vt. 272, 276 (1995). Even if a decision
refers to factual findings, such findings must be incorporated into the permit as
conditions in language sufficiently clear to provide notice of the land use limitations.
In re Byrne Trusts NOV, No. 150-7-08 Vtec, slip op. at 14–15 (Vt. Envtl. Ct. July 15,
2009) (Durkin, J.) (rejecting the phrase “based on the facts above” as effective to
incorporate factual findings as express conditions).
The other two permits applicable to the property—the 1982 Sawmill Permit
and the 1997 Garage/Storage Permit—were issued by the Zoning Administrator
under Part 6. They also contain no enforceable conditions, and, in any event, the
Zoning Administrator has no authority to impose conditions on Part 6 permits. § 6.1
(requiring the Zoning Administrator “unconditionally to issue such permits”).
Appellants argue that David Moore’s use of these buildings to process lumber
destined for use on the Farm-related Properties exceeds the scope of those permits
as being “accessory” permits. However, nothing in the Zoning Ordinance prohibits
those uses and buildings from being “accessory” to more than one allowed use.
Nevertheless, if, at the time of the applications, the proposed uses or
buildings had been considered as being accessory to the Part 7 Organ Shop business
use, the Zoning Administrator should have referred the application to the ZBA for
18
Part 7 permits for the new buildings.19 Instead, both the 1982 Sawmill Permit and
the 1997 Garage/Storage Permit appear to have been considered by the Zoning
Administrator under § 6.3 as structures “for agricultural use,” a term which is not
defined in the Zoning Ordinance.
Regardless of whether the sawing of logs and planing of lumber is considered
an “agricultural use,” both permits became final without appeal and cannot now be
challenged, either directly or indirectly. 24 V.S.A. § 4472(d). They cannot be
challenged even if they were not properly issued by the Zoning Administrator and
were instead granted in error as being ultra vires. City of South Burlington v.
Department of Corrections, 171 Vt. 587, 589 (2000) (citing Levy v. Town of St. Albans
Zoning Bd. of Adjustment, 152 Vt. 139, 142 (1989)). If these wood-processing uses
were approved in error by the Zoning Administrator, instead of being sent to the
ZBA for approval under Part 7, they fall within the statutory definition of
nonconforming use as a “use improperly authorized as a result of error by the
administrative officer.” 24 V.S.A. § 4303(15). As such, they are not now regulated
by the Zoning Ordinance, which does not regulate or limit the expansion or
perpetuation of such nonconformities. See 24 V.S.A. § 4412(7).
19
Through at least 1997, two separate application forms were in use in Pomfret—
one for applications to the Zoning Administrator under Part 6, and one for
applications to the ZBA under Part 7. It is essentially “the responsibility of the
administrative officer who receives an application to determine if the officer has
authority to act on the application, or whether it must first be referred to a municipal
panel for action.” In re Benning Accessory Use Permit, No. 184-9-09 Vtec, slip op. at
4 (Vt. Envtl. Ct. Mar. 25, 2010) (Wright, J.) (citing Wesco, Inc. v. City of Montpelier,
169 Vt. 520, 523 (1999). “[I]t is not the responsibility of an applicant to determine
whether a proposal requires {approval from the municipal panel]; that is the
responsibility of the zoning administrator.” In re: Appeal of Addison County Eagles,
Aerie 3801, No. 13-1-00 Vtec, slip op. at 4 (Vt. Envtl. Ct. May 7, 2001) (Wright, J.).
19
Enforcement Request Related to Structures Without Permits
The following six structures have been constructed on the David Moore
Parcel without a zoning permit: the “Organ Shop Woodshed Addition,” the “Organ
Shop Sawdust/Shavings Bin Addition,” the “Sap Pump House,” the “Sap Storage
Shed,” the “WoodMizer Bandsaw Sawmill Shed,” and the “Lumber Drying Kiln.”
Under § 5.4 of the Zoning Ordinance, the construction or emplacement of a
“conforming new unattached accessory building” that is smaller than “24 feet x 24
feet x 15 feet high” does not require a permit.
Organ Shop Additions
First, the Organ Shop Woodshed Addition and Organ Shop
Sawdust/Shavings Bin Addition are both attached to the Organ Shop building.
Because they are not “unattached,” even though they are below the size limitation,
they did not fall within the § 5.4 exemption. At least the Woodshed Addition
therefore needed an amendment to the Organ Shop permit from the ZBA, as an
expansion of a structure holding a permit from the ZBA. However, the Organ Shop
Woodshed Addition was constructed prior to fifteen years ago, and therefore the
statute of limitations has run on enforcement of the failure to obtain an amendment
of the 1973 Organ Shop Permit for its construction. As to the Organ Shop
Sawdust/Shavings Bin Addition constructed in 2001, material facts have not been
provided as to whether it is any larger than or located in a different place than the
horse trailer formerly used for the purpose.
The two attached additions are used, respectively, to store firewood for
heating the Organ Shop and to store sawdust and shavings produced in the Organ
Shop. They therefore do not represent a new unpermitted use for which
enforcement might be appropriate as a continuing violation. See City of St. Albans
v. Hayford, 126-7-04 Vtec, at 11-13 (Vt. Envtl. Ct. Feb 12, 2007) (Wright, J.), aff’d 2008
VT 36, 183 Vt. 596 (2008) (citing City of Burlington v. Richardson, No. 188-10-03
20
Vtec, slip op. at 12 (Vt. Envtl. Ct. June 27, 2006) (Wright, J.) (distinguishing between
ongoing use violations and one-time construction violations)); In re Hale Mountain
Fish and Game Club, 149-8-04 Vtec, 259-12-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Nov.
21, 2008) (Durkin, J.) (stating that “the fifteen-year statute of limitations does not
apply to use violations, which are seen as continuous violations”) (citing
Richardson, 188-10-03 Vtec, slip op. at 12.).
Maple Sap Structures
The Sap Pump House and the Sap Storage Shed are both smaller than the
§ 5.4 exemption size. No party contests that they fall within the state statutory
prohibition of municipal regulation of “farm structures,” now found in 24 V.S.A.
§ 4413(d). In any event, Appellants’ request for enforcement relates only to the
lumber processing activities on the David Moore Parcel, and does not involve the
sugaring operations of the Farm Partnership or its members.
Lumber-Processing Structures
The remaining buildings without permits are the 27’ by 11’ WoodMizer
Bandsaw Sawmill Shed, constructed in 1999, and the 34’ by 12’ “Lumber Drying
Kiln,” constructed in 2004.
Appellees first argue that each of these two buildings has a footprint covering
an area smaller than the 24’ x 24’ area of structures exempt under § 5.4. The Court
must apply the plain language of the zoning ordinance, and does not turn to
principles of statutory construction unless the plain language is ambiguous. See
Stowe Club Highlands, 164 Vt. at 279–80 (explaining that words in zoning
ordinances are construed according to their plain and ordinary meaning). The plain
language of § 5.4 is not ambiguous: it provides an exemption from the requirement
to obtain a permit only for conforming new unattached accessory structures “not
larger than 24 feet x 24 feet x 15 feet high.” Section 5.4 limits each individual
dimension of the exempt size structure; it does not simply limit the total footprint.
21
Accordingly, neither the WoodMizer Bandsaw Sawmill Shed nor the Lumber
Drying Kiln qualifies as exempt under § 5.4, as each has one lateral dimension
longer than 24 feet.
Appellees next argue that these two structures do not need a permit because
they are statutorily exempt from municipal regulation, pursuant to what is now
codified as 24 V.S.A. § 4413(d), as structures related to “accepted agricultural and
silvicultural practices, including the construction of farm structures.” Appellees do
not appear to distinguish between the analysis of whether these two structures are
exempt because they are used to process logs from the Farm-related Properties, or
whether they are exempt because the lumber produced in them is destined for use
on the Farm-related Properties.
The statutory provision limiting municipalities’ authority to regulate
agriculture and silviculture has two distinct sections, one governing “farm
structures” and one governing “accepted agricultural and silvicultural practices.”
The statute does not protect all “accepted agricultural and silvicultural practices”;
rather, it protects those “accepted agricultural and silvicultural practices” that have
been defined under authority of 10 V.S.A. § 1021(f), or 10 V.S.A. § 1259(f), or
6 V.S.A. § 4810, by the commissioner of agriculture (now secretary of agriculture,
food and markets) for agricultural practices and by the commissioner of forests,
parks and recreation for silvicultural practices. 24 V.S.A. § 4413(d).
The only “Accepted Agricultural Practices” that have been defined by the
agency of agriculture under the cited statutes do not address the sawing of logs or
the drying or planing of lumber as “agricultural practices,” nor do they address the
growing of trees for lumber as an “agricultural practice.”20 The only accepted
silvicultural practices that have been defined by the department of forests, parks and
20
Vt. Agency of Agriculture, Accepted Agricultural Practice Regulations (2006),
available at http://www.vermontagriculture.com/ARMES/awq/AAPs.htm.
22
recreation under the cited statutes are the “Acceptable Management Practices for
Maintaining Water Quality on Logging Jobs in Vermont” (AMPs).21 They define in
detail acceptable practices for logging tracts of land, up to the point of loading logs
onto log trucks at the log landing and cleaning up the landing after the logging job is
completed. They do not address the operation of sawmills, whether on the property
that is being logged, or on other property,22 and do not address the drying or
planing of lumber as silvicultural practices. Accordingly, Appellees’ lumber
processing activities do not qualify as “accepted agricultural or silvicultural
practices” as that phrase is defined by 24 V.S.A. § 4413(d).
As of 1994, when the state statute first stated that “[n]o municipal permit for a
farm structure shall be required,” the provision of § 6.3 of the Zoning Ordinance
requiring a permit from the Zoning Administrator for the construction of “structures
for agricultural use” was therefore superseded by the state statute to the extent that
a “structure for agricultural use” overlapped with the definition of “farm structure”
in the statute.
For the purposes of 24 V.S.A. § 4413(d), the phrase “farm structure” is
defined as “a building for housing livestock, raising horticultural or agronomic
plants, or carrying out other practices associated with agricultural or farming
practices, including a silo, as “farming” is defined in 10 V.S.A. § 6001(22), but
excludes a dwelling for human habitation.” The definition of farming in 10 V.S.A.
§ 6001(22), in turn, includes the “cultivation or other use of land” for “growing food,
21
Vt. Department of Forests, Parks and Recreation, Acceptable Management
Practices for Maintaining Water Quality on Logging Jobs in Vermont (1987),
available at http://www.vtfpr.org/watershed/documents/Amp2006.pdf.
22
A different statutory section, 10 V.S.A. § 2623(3), not referenced in the 24 V.S.A.
§ 4413(d) exemption, authorizes the commissioner to adopt regulations governing
licensing requirements for “portable sawmills, portable chip harvesters[,] and other
similar portable forest product utilization systems.”
23
fiber, Christmas trees, maple sap, or horticultural or orchard crops.” 10 V.S.A.
§ 6001(22)(A). While the growing of Christmas trees, sugar maple trees, or apple
trees is explicitly included in this definition, the growing of trees for lumber is not.23
Therefore, as was the case in In re Appeal of Charlotte Farm and Mills, in which the
Court made a finding, based on testimony at trial, that silviculture “refer[s] to the
growing, cultivating and harvesting of trees,” it may be necessary to take evidence
as to the distinction between the terms silviculture, agriculture, and farming. In re
Appeal of Charlotte Farm and Mills, No. 45-3-99 Vtec, slip op. at 3 (Vt. Envtl. Ct.
Dec. 13, 1999) (Wright, J.), aff’d 172 Vt. 607 (2001) (mem.).24
If the growing of trees for lumber is not covered by the terms agriculture or
farming (even assuming that it does fall within the definition of “silviculture”), then
the processing of sawlogs from forest land also is not covered by the definition of
farming in 10 V.S.A. § 6001(22)(E) as the “on-site storage, preparation and sale of
23
Appellees argue that the growing of trees for lumber comes under the definition
of “growing . . . fiber.” Although a Court may apply the ordinary meaning of
undefined statutory words, Stowe Club Highlands, 164 Vt. at 279, the ordinary
meaning of “growing . . . fiber” is disputed by the parties, so that expert evidence
from a witness familiar with the field of silviculture may be necessary as to any use
of the term “fiber” to refer to lumber.
24 The fact that a building may be used to produce lumber that is later used to
construct farm structures or residences related to a farm cannot itself make the
lumber processing activities into “farming” within the definition in 10 V.S.A.
§ 6001(22), or make the lumber processing building itself into a “farm structure.”
That is, the ultimate destination of the product or material, whether it is lumber, or
hardware, or animal feed, or fencing, or fertilizer, for use on a farm, cannot be
determinative of whether the processing or manufacturing operation is considered
to be “farming.” Such an analysis would be unworkable, and would go beyond the
intent of 10 V.S.A. § 6001(22), as all sorts of manufacturing operations could become
exempt from municipal regulation as “farm” structures. Therefore, the question of
whether Appellee’s proposed Newman Planer/Shavings Building, WoodMizer
Bandsaw Sawmill Shed, and Lumber Drying Kiln require § 7 permits turns on
whether the processing of lumber is considered to be “farming” or an “agricultural
use[]”.
24
agricultural products principally produced on the farm.” That is, material facts
appear to be in dispute as to whether the sawing of logs and/or the drying and
planing of lumber produced from those logs is considered the “preparation” of
“agricultural products” or is considered an “agricultural use” as the term is used in
§ 6.3.25 If the sawing of logs and the drying of lumber are not considered to be
“farming” under 10 V.S.A. § 6001(22) or “agricultural uses” under § 6.3, then ZBA
approval under Part 7 was necessary for the WoodMizer Bandsaw Sawmill Shed
and the Lumber Drying Kiln.
Newman Planer/Shavings Building Application
In April of 2008, A. David Moore, on behalf of “A. David Moore Inc.,” applied
for a zoning permit to build a new 36’ x 18’ building on the David Moore Parcel; the
application proposed the building to be 18’ in height, and to be set back 300 feet
from the center of the road. Both because of its length and because of its height,
regardless of its use, it exceeds the size limits for the § 5.4 exemption. In the space
for “Description of Proposed Development,” the application described the project as
“building to house wood planer + store wood shavings” (the “Newman
Planer/Shavings Building”). This building is proposed to house the Newman Planer
now operating in the Garage/Storage building, and is farther from Appellants’
property than is the Garage/Storage building.
25
Appellees argue that the 2007 Pomfret Town Plan uses the term “agriculture” to
include the processing of harvested trees into lumber, citing its objective to
“encourage full- or part-time agricultural activities . . . such as . . . selective growing
of timber, tree farms, and firewood.” 2007 Pomfret Town Plan, at 23. However,
although this language suggests that the Town Plan may include the growing of
trees for timber or firewood within the concept of agriculture rather than
silviculture, it is silent as to the inclusion or exclusion of the later processing of those
trees.
25
By approving the Newman Planer/Shavings Building himself, rather than
referring the application to the ZBA for its action under §7.1, the Zoning
Administrator implicitly considered the proposed Newman Planer/Shavings
Building to be a “conforming structure for agricultural use” covered by § 6.3.
Nothing in the Zoning Ordinance limits the Newman Planer or the proposed
Newman Planer/Shavings Building to being used solely for a single purpose, that is,
solely for the pipe organ construction and restoration business or solely to produce
lumber for use on the Farm-related Properties. However, as discussed above with
regard to whether Part 7 permits are required for the WoodMizer Bandsaw Sawmill
Shed or the Lumber Drying Kiln, material facts are disputed as to whether the
planing of lumber falls within the definition of agriculture or farming. If it does not,
it is not exempt from municipal regulation under 24 V.S.A. § 4413(d), even if
Appellees now propose to use it solely to produce lumber to be used for the
buildings, structures, or residences on the Farm-related Properties.
Accordingly, like the WoodMizer Bandsaw Sawmill Shed and the Lumber
Drying Kiln, the proposed Newman Planer/Shavings Building is not exempt from
municipal regulation by 24 V.S.A. § 4413(d), and will require ZBA approval under
Part 7, unless the planing of lumber falls within the definition of farming or
agricultural use.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that both parties’ Motions for Summary Judgment are GRANTED in Part and
DENIED in Part, as follows. None of the uses on the David Moore Parcel are at
present in violation of the Zoning Ordinance, as the sawing, planing, and drying of
lumber are all functions included in the uses and buildings that hold final permits,
although the extent of those uses may be subject to future conditions or limitations,
depending on whether Part 7 permits will be required for the Newman
26
Planer/Shavings Building, the WoodMizer Bandsaw Sawmill Shed or the Lumber
Drying Kiln. As to the buildings and structures, the proposed Newman
Planer/Shavings building is not exempt from municipal regulation by 24 V.S.A.
§ 4413(d), and therefore requires a permit from the ZBA under Part 7 of the Zoning
Ordinance, unless Applicant can show that the planing of lumber falls within the
definition of “farming,” under 10 V.S.A. § 6001(22) or of “agricultural use” under
§ 6.3. Similarly, the WoodMizer Bandsaw Sawmill Shed and the Lumber Drying
Kiln are not exempt as smaller than the required footprint in § 5.3, and should have
obtained ZBA permits under Part 7, again unless Applicant can show that the
sawing of logs and the drying of lumber, respectively, fall within the definitions of
farming or agricultural use.
A telephone conference has been scheduled (see enclosed notice) to discuss
what issues remain after this decision, specifically with reference to the twenty
questions in the restated Statement of Questions, and whether the parties wish the
Court to schedule a brief evidentiary hearing to take evidence on whether the
sawing of logs and the drying and/or planing of lumber fall within the definitions of
“farming,” “agricultural use” or “silviculture.”
Done at Berlin, Vermont, this 11th day of October, 2010.
_______________________________________________
Merideth Wright
Environmental Judge
27