STATE OF VERMONT

                                 ENVIRONMENTAL COURT


                                    }
In re: Appeal of                    }
 Midway Oil Corporation             }      Docket No. 84-4-00 Vtec
                                    }
                                    }

                  Decision and Order on Motions for Summary Judgment
       Appellants Midway Oil Corporation and John Rehlen appeal from a decision of the
Zoning Board of Adjustment (ZBA) of the Town of Castleton, denying Midway Oil=s
application to update its gasoline pumps, pump island, lights, and storage tanks.
Appellants are represented by R. Joseph O=Rourke, Esq.; the Town is represented by John
S. Liccardi, Esq.; Appellee Gary R. Kupferer is an attorney who has appeared and
represents himself.    Appellants and Appellee have filed cross-motions for summary
judgment; the Town has not participated in the briefing of those motions.
       The following facts are undisputed, except as otherwise noted.
       Appellant Midway Oil Corporation operates a gasoline station on a 9,568-square-
foot lot owned by Appellant Rehlen, on Main Street (Route 4A) in the Neighborhood
Commercial (NC) zoning district. The lot is 104 feet wide and 92 feet deep. The existing
sign and existing gasoline pump island are located in the land beyond the traveled way of
Main Street, but on land owned by the Town, as the land lying under what would normally
be the highway right-of-way is owned in fee by the Town, not the landowner. The gasoline
station predates the adoption of zoning in Castleton. Automotive service stations are a
conditional use in the NC zoning district. Zoning Regulations '340.
       The gasoline station is a preexisting use, nonconforming at least as to lot area
('718(2)), lot frontage ('718(3)), lot depth ('718(4)); setback from the pumps ('718(5)),
and setback for fuel storage1 ('718(6)), as well as distance of the lot from a lot occupied by
a school or library.('718(1)).

       1
           Assuming that this provision applies to underground storage tanks.

                                              1
          Midway Oil proposes to replace the gasoline pumps, pump island, island lights and
gasoline storage tanks. The location or design of the island lights is not at issue in the
appeal separately from the location of the new islands. Specifically, Midway Oil proposes
to replace two side-by-side single-walled underground storage tanks totaling 10,000
gallons with a single 15,000 gallon tank located 24 feet from the side property line, which is
eleven feet farther than the closer of the old tanks. However, the new tank is proposed to
extend to within approximately ten feet from the rear property line, while the closer of the
old tanks extended to only approximately 34 feet from the rear property line. Midway Oil
also proposes to replace the existing two-dispenser, four fueling position island with two
single-pump, two-fueling position islands, resulting in the same number of dispensers and
fueling positions at the pumps. The new islands are smaller in total aggregate size than is
the existing island and are approximately three feet farther from the traveled way of Main
Street.
          Appellants argue that no application was required under '400 of the Zoning
Regulations, which allows any non-conforming use of structures or land to be continued
indefinitely. However, '400(1) requires approval of the ZBA if any non-conforming use is
being Amoved, enlarged, altered, extended, reconstructed, or restored.@ Because the
changes to the tanks and to the islands result in the alteration and moving of the islands,
and the moving, alteration and enlargement of the tanks, ZBA approval is required under
'400(1), regardless of whether the scope of the non-conformity is being increased,
decreased, or remains the same as in the prior configuration.
          Appellants ask the Court to apply the Vermont Supreme Court=s analysis in In re
Miserocchi, 

. Wk. 33 (2000). However, in Miserocchi, the Supreme Court resolved
an absurdity or ambiguity in the town=s change-of-nonconforming use rules, by construing
the ordinance most favorably to the landowner. The Miserocchi analysis does not apply to
zoning regulations, such as Castleton=s, which provide an explicit procedure and standards
for ZBA approval of a change to a pre-existing, nonconforming use.
          Accordingly, Appellant=s motion for summary judgment is denied as to Question 1 of
the Statement of Questions and summary judgment is entered adversely to Appellant=s
position on Question 1 of the Statement of Questions. Approval of the ZBA under '400(1)

                                              2
is required to replace the equipment at the proposed locations. The denial of that approval
was properly appealed and the merits of that approval are before the Court in this appeal.
       Section 400(1) section requires the ZBA and hence this Court in this de novo
proceeding, to determine that the proposal (a) has no adverse effect on the traffic in the
vicinity, (b) has no adverse effect upon surrounding property, and (3) is an increase in
building coverage not greater than 50% compared to the area covered by the building on
the date it became nonconforming. These standards are not unconstitutionally vague; the
determination of adverse effect is common to zoning decisions on the ZBA level as well as
before this Court. Appellant=s motion for summary judgment is denied as to Question 3 of
the Statement of Questions and summary judgment is entered adversely to Appellant=s
position on Question 3 of the Statement of Questions.
       Even though the changes from the former configuration are minor, have not
increased any building coverage, and do not change the distance of the subject lot from
schools or libraries, material facts remain in dispute as to any effect on traffic of the new
island configuration, and whether the proposal will have any effect, adverse or otherwise,
on surrounding property. Accordingly, summary judgment must be denied on Question 4
of the Statement of Questions because material facts are in dispute.


       Appellee argues that Appellants violate 24 V.S.A. ' 4425 in seeking a zoning permit
for a structure within the lines of the street or associated right of way. The pump islands
and their dispensers fall within the definition of structure in '130, which includes any
Aassembly of materials for occupancy or use@ including walls or fences (except those on
operating farms). Under this definition (as under the definition in In re Miller and Sheedy,

. Week 306 (Oct. 8, 1999)) everything above the surface of the ground which is an
assembly of materials is a structure.      The pump islands and their dispensers are
constructed above the surface of the ground, unlike the pavement in In re Miller and
Sheedy. There also is no question that the pump islands are not located on Appellants=
property, although material facts are disputed (or at least have not been provided) to
establish whether they are within the right-of-way of the street.
       However, Appellee Kupferer has not filed a cross-appeal; therefore the issue of

                                             3
whether Appellants would be entitled to a permit under 24 V.S.A. ''4425 and '4469 is not
strictly before the Court. We do note that ''4425 and 4469 together have the purpose of
requiring the municipality to acquire such land as it may wish to reserve for streets, but,
once lots have been mapped for streets, not to allow later building in those lots to drive up
the price for condemnation. If the gasoline station predates the adoption of '4425 in 1967,
it may not be applicable. Also, although Appellants need approval of the ZBA under
'400(1) of the Zoning Regulations, nothing in those sections of the Zoning Regulations
supplied to the Court suggests that Appellants need any other zoning permit to move the
gasoline island or replace and expand the underground storage tanks.
       Appellee further argues that Appellants increase a non-conformity by moving the
fuel tank and islands closer to the school and library. The parties have not provided
information to the Court regarding the location of the school and library. However, the
standard under '718(1) is the distance between the gasoline station lot and the lot
occupied by the school or library. Although the islands have moved three feet to the south
and the underground tank extends farther to the south within the lot, the lot has not moved,
and therefore this aspect of the non-conformity is not being increased.
       Appellee also seeks to dismiss this appeal on the basis that the appeal has been
rendered moot by Appellants= failure to appeal a later ruling of the Zoning Administrator.
He argues that Appellants wrote a letter seeking to reestablish their prior nonconforming
use (with the existing pump islands and the existing tank configuration, only complying with
the federally mandated requirements for double-wall gasoline tanks and piping) and that
they did not appeal the Town Manager=s April 14, 2000 letter stating that Appellants would
be required to go before the ZBA again and also go before the Planning Commission. All
that this Court can rule is that any issues regarding the reestablishment of the existing
tanks and islands are not before the Court in the present appeal. However, nothing about
that fact limits the Appellants in their pursuit of the issues remaining in the present appeal.
       Accordingly, based on the foregoing, it is hereby Ordered and Adjudged that
summary judgment is entered as to Questions 1, 2 and 3 of Appellants= Statement of
Questions, and that material facts are in dispute as to Question 4. This matter will be set
for hearing on the '400(1) standards. On or before November 2, 2000, the parties shall

                                              4
confer with each other and shall each file in writing with the Court a statement of the
amount of time necessary for the merits hearing, and any dates in November or December
which are unavailable on their or their witnesses= schedules.

                                     th
      Done at Barre, Vermont, this 17 day of October, 2000.




                           _________________________________________________
                                Merideth Wright
                                Environmental Judge




                                            5