STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of J.D. Associates }
}
} Docket No. 253-11-02 Vtec
}
}
Decision and Order on Cross-Motions for Summary Judgment
Appellant J.D. Associates appealed from a decision of the Development Review Board (DRB) of
the Town of Morristown upholding a zoning permit issued to Appellee-Applicant Elizabeth
Darden. Appellant is represented by Harold B. Stevens. Esq.; Appellee-Applicant Elizabeth
Darden is represented by Thomas J. Amidon, Esq. and Thomas M. Higgins, Esq. The Town of
Morristown has not entered an appearance in this matter. Appeals from the Morristown DRB are
on the record.
The following facts are undisputed unless otherwise noted.
Appellant contested a permit application filed by the North Country Animal League (NCAL) to
build and operate an animal shelter, with offices and meeting rooms, on the former Vartanian
property of 2.1 acres located on Route 100 (Laporte Road). Appellant operates a golf course
resort on nearby property and was concerned about effects of the NCAL proposal on its property,
in particular regarding the noise from barking dogs. The NCAL permit application was granted,
with conditions to minimize its effects on surrounding property, and in particular from barking
dogs.
Appellee-Applicant owns the former Schillhammer property, a 10.1-acre parcel of property
between the NCAL property and Appellant= s property, in the Rural Residential with
Agricultural Use zoning district. The property is fenced but is otherwise undeveloped. Appellee-
Applicant leases a portion of the property to another for use as a horse pasture. On the remaining
portion of the property she goes for walks herself and trains and walks her own dogs. The parties
have provided no information to the Court regarding whether Appellee-Applicant owns
residential property or other property in the vicinity of the property in question. Before obtaining
approval of its project on the former Vartanian property, NCAL had proposed its project for the
former Schillhammer property; Appellant had vigorously opposed that proposal.
NCAL= s proposal of its project on the former Vartanian parcel included the location of its
proposed septic system on the former Schillhammer parcel. The DRB= s first approval of
NCAL= s conditional use permit, in April 1999, contained the condition that: A the only
authorized use on the Schillhammer property is the septic system.@ Appellee-Applicant
purchased the former Schillhammer property on July 5, 1999. On December 21, 1999, the DRB
approved NCAL= s amended application, which contained the condition that: A North Country
Animal League animals shall not be on the former 10.1-acre Schillhammer property.@
On April 15, 2000, Appellee-Applicant granted NCAL a sewer easement for it to construct and
maintain its septic system on her property.
On July 24, 2002, Appellee-Applicant applied for and was issued the zoning permit on appeal in
the present case. It requested approval of a 100' x 100' fence and a 12' x 12' shed as an >
accessory building.=
The two 1999 permits regarding the NCAL proposal only impose conditions on use by NCAL
and its representatives of what is now Appellee-Applicant= s property. The only use of Appellee-
Applicant= s property by NCAL is for NCAL= s septic system. NCAL is specifically precluded
from placing or allowing any of its animals to be placed on Appellee-Applicant= s property.
Even if Appellee-Applicant had been a party to NCAL= s permit applications, the conditions of
the NCAL permits did not address any limitations regarding Appellee-Applicant= s property,
other than NCAL= s proposed uses of it. Appellee-Applicant is bound by NCAL= s permit only
in the sense that she may not assist or act as an agent of NCAL to violate those conditions by
taking any of NCAL= s animals onto this particular parcel of land.
However, Appellee-Applicant is still subject to the Zoning Bylaws regarding her own use of her
property. We must examine her application for a zoning permit for a 100' x 100' fence and a 12' x
12' shed in light of the Zoning Bylaws.
In the Rural Residential with Agricultural Use zoning district, a fence is a permitted use under '
262(g), regardless of the purpose for which it is being erected, provided that it complies with '
425.1 or is exempt under ' 425.3. As no party suggests that Appellee-Applicant= s property is a >
working farm,= we presume that the fence was analyzed under ' 425.1. The record reflects that
the fence is proposed as an open fence, but does not state the fence= s proposed height. If it
meets the requirements of ' 425.1, it may be approved by the Zoning Administrator under '
262(g), without regard to Appellee-Applicant= s intended purpose in erecting it. That is,
approval of the fence only authorizes Appellee-Applicant to erect the fence. Any particular use
she intends to make of the property would have to be analyzed independently as to whether it
meets the Zoning Bylaws as a permitted use in this district, or whether it requires a conditional
use permit (in which case it would have to go before the DRB for that purpose, and Appellant
could argue for similar conditions to be imposed as those imposed on NCAL).
In the Rural Residential with Agricultural Use zoning district, an application to erect a shed may
be considered in the category of a permitted accessory use under ' 262, but it can only be
considered as an accessory use if it meets the definition of accessory use. The Zoning Bylaws
define accessory use or structure as A a use or structure on the same lot with, and of a nature
customarily incidental and subordinate to the principal use or structure.@ (Emphasis added.)
Unlike many cases in which a proposal is accessory to an existing residential, agricultural or
commercial use on the same lot, in the present case the record reflects that the principal use of
the parcel is for the agricultural use of horse pasturage, and that the only other structure on the
parcel is the fence for the horse pasturage use. Therefore, the shed could only be approved as an
accessory structure if it was used for the horse pasturage use, or to contain materials and tools for
maintaining the fence on the property.
As Appellee-Applicant= s property has no dwelling on it, at the present time her use of the
proposed shed could not qualify as a home occupation or a home business, or as an accessory to
a residential use. The record does not reflect that the property is used for forestry. Thus the only
permitted use to which the shed could be accessory would be the agricultural use of the property
already discussed above. Any other use, for example for outdoor recreation or for a dog training
service business, would fall in a conditional use category which would have to obtain a
conditional use permit before the shed could be considered as accessory to it.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant= s
Motion for Summary Judgment is GRANTED in PART and Appellee-Applicant= s Motion for
Summary Judgment is DENIED in PART, in that, on the present record, the proposed shed does
not qualify as an accessory use to any approved principal use of the lot. It is also hereby
ORDERED and ADJUDGED that Appellant= s Motion for Summary Judgment is DENIED in
PART and Appellee-Applicant= s Motion for Summary Judgment is GRANTED in PART, in
that the NCAL permits only govern the use of Appellee-Applicant= s property by NCAL and its
agents, successors and assigns, as discussed above. The zoning permit issued to Appellee-
Applicant for the 100' x 100' fence is upheld, and the zoning permit issued to Appellee-Applicant
for the 12' x 12' shed is vacated and denied, on the basis that it is not accessory to any approved
principal use on the lot (that is, to any principal use either holding a zoning permit as a permitted
use or holding a conditional use permit as a conditional use).
This decision concludes this appeal. Appellee-Applicant is free to apply to the DRB for any such
approval of a principal use and any accessory uses in the future, in which proceedings Appellant
may raise its concerns regarding the keeping or training of dogs on the property.
Done at Barre, Vermont, this 26th day of May, 2003.
___________________
Merideth Wright
Environmental Judge