STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Application of Robert and Amy Scharges, }
d/b/a Vermont Canoe, LLC. } Docket No. 194‐9‐05 Vtec
(Appeal of Morris) }
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Decision and Order on Cross‐Motions for Partial Summary Judgment or to Dismiss
Appellant Robin Morris appealed from a decision of the Zoning Board of
Adjustment (ZBA) of the Town of Waitsfield, granting Appellee‐Applicants Robert and
Marie Scharges’ application to amend their conditional use approval. Appellee‐Applicants
also filed a cross‐appeal. Appellant Robin Morris appeared and represents himself;
Appellee‐Applicants are represented by James A. Caffry, Esq.; the Town is represented by
Joseph S. McLean, Esq. Interested Person Brian Fleisher appeared and represents himself,
but did not participate in the briefing of the present motions.
Appellant moved for summary judgment on the portion of Question 1 of
Appellant’s Statement of Questions that addresses whether the application was an
impermissible successive application. Appellee‐Applicants moved to dismiss Question 2
of Appellant’s Statement of Questions and for summary judgment or to dismiss Question
3 of Appellants’ Statement of Questions.
The following facts are undisputed unless otherwise noted. Appellee‐Applicants
own a 3.3‐acre parcel of land located at 5639 Main Street (Route 100) in the Irasville Village
zoning district, on which they maintain their residence and on which they conduct their
business in a separate 2,250‐square‐foot barn on the property, which qualifies as an
“historic barn” under the Zoning Bylaws. Appellant, through 1840 Starch House, LLC,
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owns the adjacent 1.2‐acre property, which contains a building in which Mad River
Massage, a commercial use, is located. Appellee‐Applicants’ and Appellant’s properties
share a common driveway, which also provides access to a nearby commercial complex
known as “Fiddlers’ Green,” including at least a dental office and a car wash.
Beginning in 2000, Appellee‐Applicants operated a retail sales and repair service
business at the property known as Vermont Pack and Paddle. It sold and repaired paddle
sports products produced elsewhere in Waitsfield, and provided canoe guiding services
and ski tuning services. In connection with the retail business, Appellee‐Applicants had
received site plan approval in 2000 for operation of the business on their property,
including outdoor storage racks for the display of canoes and kayaks at the rear of the
building.
After their Waitsfield supplier relocated to another state, in January of 2004
Appellee‐Applicants formed Vermont Canoe, LLC. In April of 2004, Appellee‐Applicants
applied to add canoe fabrication, under the “light industry” use category, to the existing
mixed use of retail and residential uses on their property. They proposed to add the
construction of up to seven canoes per month in the basement of the barn, using the same
types of materials as they were already using to conduct their repair services, and using the
same air filtration system installed for the repair services.
On January 3, 2005, the ZBA granted conditional use approval to Appellee‐
Applicants to produce up to seven canoes a month as a “light industry” use, entirely within
the basement of the barn, while Vermont Pack and Paddle’s retail operations were to
continue on the barn’s main floor. In connection with the January 2005 approval, the ZBA
made a finding that at that time Appellee‐Applicants “propose[d] to construct not more
than seven canoes per month on the property,” and that they “intend[ed] to move their
construction operations to a larger facility off‐site” at “such time as there becomes a market
demand for the production of more than seven canoes per month.”
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In the January 2005 approval, the ZBA imposed a specific condition that Appellee‐
Applicants must meet the odor‐control section of the Zoning Bylaws (§5.3(D)(8)), that is,
that they “shall not discharge any noticeable odors which are offensive and uncharacteristic
of the area, or which will result in an undue adverse impact on the use of any public or
private property or facility.” In the January 2005 approval, the newly‐constructed canoes,
once finished, were specifically allowed to be displayed for retail sales outside on the
existing permitted racks. The ZBA analyzed whether canoe fabrication fell within the use
category of “light industry” and concluded that it did. No party appealed the ZBA’s
issuance of conditional use approval, and it cannot now be challenged, directly or
indirectly. 24 V.S.A. §4472. Thus, as of the issuance of the January 2005 approval, the
property was approved as a mixed use consisting of a single‐family dwelling, and, in a
separate historic barn, 1,800 square feet of retail use, 750 square feet of light industry (canoe
fabrication) use, and 100 square feet of accessory office space.
Proposed revisions to the Zoning Bylaws, submitted by the Planning Commission
to the Selectboard in December of 2004, were scheduled for public hearing on March 28,
2005. These revisions included a proposed addition to the definition of the use category
of “light industry” to add the phrase “and are conducted at a scale and intensity that is
characteristic of other uses allowed within the district in which the light industry is
located.” However, as adopted by the Selectboard on May 2, 2005, the new Zoning Bylaws
did not contain the proposed change in the language of the definition of “light industry,”
leaving the term defined as “the manufacturing, compounding, processing, packaging,
assembly and/or treatment of finished or semi‐finished products from previously
manufactured materials, which activities are conducted wholly within an enclosed
building.” Zoning Bylaws §7.02.
Appellee‐Applicants then filed the application that is at issue before the Court on
May 2, 2005, and it was considered under the definition of “light industry” without the
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proposed added phrase that had been voted down. Appellee‐Applicants applied to amend
the condition of their January 2005 conditional use approval that limited canoe fabrication
to seven canoes per month. Because they were closing their retail business, an additional
1,800 square feet of space became available in the barn, which they proposed to use for
canoe fabrication. As considered by the ZBA, the application requested approval of the
fabrication of eighty canoes per month within the barn.
After hearings in May, June, and July, the ZBA approved Applicants’ conditional
use amendment application in August of 2005, imposing conditions that included
prohibiting retail or showroom activities related to the canoe production use (with the
exception of minor ski tuning and canoe repair services); prohibiting additional outdoor
storage of canoes beyond the six existing approved racks; requiring all canoe fabrication
to be conducted wholly within the barn; requiring safe storage of all flammable or
otherwise hazardous materials; requiring a specified air emissions ventilation and filter
system to be installed and maintained regularly; requiring an air exhaust dispersion stack
to be installed; and limiting Applicants’ canoe production to eighty canoes per month,
using no more than six employees on site at any time, restricted to weekday hours from
8:00 a.m. to 6:00 p.m.
Appellee‐Applicants’ cross‐appeal seeks clarification or amendment of the August
2005 decision to allow them to conduct two types of activities on the premises: first, that
the prohibition of retail use of the barn does not limit their ability to continue existing
canoe guiding services and rental business for canoes, kayaks, fly‐fishing equipment, and
snowshoes, without any customer entry into the barn; and, second, that they retain the
ability to make direct retail sales of the new canoes and kayaks made on the premises, also
without any customer entry into the barn.
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Question 1 of Appellant’s Statement of Questions
Question 1 of Appellant’s Statement of Questions in part raises the merits of
whether the May 2005 application should be approved, and in part questions “whether
there has been a change in circumstances justifying the amendment, sufficient to override
the principles of 24 V.S.A. §4472 (exclusivity of remedy) and overturning the official finality
of the January 2005 permit.”
Appellant has moved for summary judgment on the latter issue. Appellant argues
that Applicants cannot apply to amend their conditional use approval to expand the canoe
fabrication use to produce eighty canoes a month, because the January 2005 conditional use
approval was conditioned on production of only seven canoes per month.
In the application resulting in the January 2005 conditional use approval, Appellee‐
Applicant proposed mixed use of their property for a residence in their house, a retail
operation in 1,800 square feet of their barn, and a light industry use, proposing to produce
seven canoes a month in the 750‐square‐foot barn basement. That was all that was granted,
so that the production of any larger number of canoes would have at least required a
permit amendment.
If Appellee‐Applicants were now applying to keep the retail operation as approved,
and to increase the number of canoes produced in the barn, we would examine whether
the proposal was sufficiently different from the prior application to warrant a successive
application.1 24 V.S.A. §4470(a). However, the fact that Appellee‐Applicants are also
proposing to eliminate the retail use of the remainder of the barn is a changed circumstance
sufficient in itself to allow them to file the new application. We note that the fact that they
are entitled to make the application does not resolve whether it should be approved or
1
See, e.g., In re Appeal of Hildebrand, Docket No. 228‐12‐04 Vtec (Vt. Envtl. Ct., Oct.
13, 2005).
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disapproved on the merits of this de novo appeal, that is, whether the fabrication of up to
eighty canoes per month instead of seven canoes per month satisfies the conditional use
standards in Zoning Bylaws §§5.3(C) and 5.3(D). That is what remains for the hearing on
the merits of Question 1 of Appellant’s Statement of Questions.
Question 2 of Appellant’s Statement of Questions
Question 2 of Appellant’s Statement of Questions raises the question of “whether
the proposed use, to construct 80 canoes per month, satisfies the definition of ‘light
industry,’ which requires such uses to be ‘conducted at a scale and intensity that is
characteristic of other uses allowed within the district in which the light industry is
located’,” citing an unnumbered section of the Zoning Bylaws.
The language quoted in this question is language that was proposed to be added to
the definition of the use category “light industry” but was not in fact adopted. The
definition of “light industry” in effect at the time of the January 2005 approval, and
remaining in effect as of the May 3, 2005 amendment application, only requires that
processing of products from previously manufactured materials be “conducted wholly
within an enclosed building.” Zoning Bylaws, §7.02.
While 24 V.S.A. §4449(d) requires applications submitted under proposed zoning
bylaws to be considered under the proposed bylaw provisions, that requirement only
applies to applications filed between the time of the public notice for the first public
hearing on the proposed bylaw, and, if rejected, the time it is voted down. After a
proposed bylaw is rejected, the application is to be reviewed under the existing bylaws.
24 V.S.A. §4449(d).
Therefore, Applicants’ motion to dismiss Appellant’s Question 2 is GRANTED.
Question 3 of the Appellant’s Statement of Questions
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Question 3 of Appellant’s Statement of Questions raises the question of whether the
proposed use “qualifies for conditional use in light of the plan to store canoes outside the
building, where [the definition of the term ‘light industry’] requires light industry to be
‘wholly within an enclosed building.’”
Unlike Question 1, Question 3 does not raise the issue of whether any of the
conditional use standards are met by the current proposal; rather, it only questions whether
the outside storage of the finished canoes removes the proposed canoe fabrication use from
the use category of “light industry.” Outside storage of finished canoes in the existing
racks was allowed by the January 2005 unappealed conditional use approval. No proposal
has been made to increase the capacity for outside storage beyond that of the existing
racks.2 Therefore, even if outside storage of the finished canoes did not fall within the
definition of the “light industry” use category, it would be allowed to continue to the extent
that it was permitted in the January 2005 unappealed conditional use approval. Therefore,
Appellee‐Applicants’ motion for summary judgment on Question 3 of the Statement of
Questions must be granted.
In any event, as the ZBA reasoned in its January 2005 decision, the entire process of
producing a canoe takes place wholly within the enclosed building. The new canoes do not
leave the building until they are completed and ready for sale. Their storage in the existing
racks, before they are shipped off the premises, does not remove the fabrication process
from the use category of “light industry,” as that term is defined in the Zoning Bylaws
applicable to this proposal.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
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As the Court relied on this undisputed fact, we address this issue by way of
Appellee‐Applicants’ motion for summary judgment rather than their motion to dismiss.
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Appellant’s motion for summary judgment on Question 1 is DENIED, and summary
judgment on that question is GRANTED in PART to Appellee‐Applicants, as Appellee‐
Applicants are entitled to apply to expand the number of canoes produced per month.
Facts remain in dispute as to whether the application meets the standards for conditional
use approval. Appellee‐Applicants’ motion to dismiss Appellant’s Question 2 is hereby
GRANTED as discussed above. Appellee‐Applicants’ motion to dismiss or, in the
alternative, for summary judgment on Appellant’s Question 3 is hereby GRANTED as
discussed above.
A telephone conference is scheduled for March 8, 2006 (see enclosed notice) to
discuss whether mediation would be useful in the resolution of what remains of this
appeal, and to discuss the scheduling of a hearing on the merits on the two questions raised
by Appellee‐Applicants’ Statement of Questions and on the remaining issues in Questions
1 and 4 of Appellant’s Statement of Questions. Please be prepared to discuss the parties’
available dates for that hearing in April, May and June, 2006.
Done at Berlin, Vermont, this 24th day of February, 2006.
_________________________________________________
Merideth Wright
Environmental Judge
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