'                                                     STATE OF VERMONT
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'                                                 ENVIRONMENTAL COURT
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                                          }
'Appeal of Bone Mountain, LLC                    }            Docket No. 114-6-04 Vtec
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                                          }
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                       Decision and Order on Cross-Motions for Summary Judgment

       Appellant-Applicant Bone Mountain, LLC (Bone Mountain) appealed from three

conditions'[1] in the decision of the Development Review Board (DRB) of the Town of

Wilmington, granting its application for conditional use approval to expand its brew pub

business from twenty-five to eighty-five seats. Neighbors Gerald and Sheila Osler filed a

cross-appeal challenging whether the application meets the parking requirements of the

Zoning Ordinance or adversely affects existing community facilities.   Appellant-Applicant is

represented by Robin L. Stern, Esq.; Cross-Appellants are represented by Robert M.

Fisher, Esq.; and the Town of Wilmington is represented by Jill E. Spinelli, Esq. Appellant

and Cross-Appellants each moved for summary judgment regarding whether the proposal

satisfies the parking requirements of the Zoning Ordinance. The Town had the opportunity

to but declined to file a memorandum on the motions.
       The following facts are undisputed unless otherwise noted.       Appellant-Applicant

operates a twenty-five seat restaurant and brew pub in an existing 200-year-old building

located at 3 North Main Street (Route 100) in the Commercial and Design Review zoning

districts, near the center of what the DRB characterizes as the 'village' area. The building

is served by municipal water supply and wastewater disposal. At present, the first floor of

the building is used for the restaurant and brew pub, the second floor of the building is

used for office and storage space for the business, and the third floor of the building is

used as a residential apartment. No party has suggested that the existing use in the

building failed to obtain any necessary municipal permits.     However, neither party has

supplied any existing permits; therefore we cannot determine whether Appellant-Applicant

obtained any approval of the existing uses, which would have become final without appeal.

       As of December of 1990, the building was in use as an apartment building and ice-

cream parlor. As neither party has supplied any permit for those prior uses, we cannot

determine whether the prior owner obtained any approval of the prior uses, which would

have become final without appeal, or whether they were treated as pre-existing uses on

that property.

       Prior to 1990 the building had been located on a larger lot, which contained a barn

that was attached to the Town office building. In December of 1990 the former owners

obtained a state subdivision permit approving the division of the land for transfer of the
land with the barn to the Town for conversion to Town office use. That state permit

approved the existing building for "the existing apartment building and ice cream parlor"

and required that "no alteration to the existing building[s] which would change or affect

the water supply system or the wastewater disposal system shall be allowed without prior

review and approval."    Because the parties did not supply the plans incorporated by

reference in the 1990 state subdivision permit, and did not provide any municipal

subdivision permit, we cannot determine the size of the former larger lot.


       Based on the state subdivision permit, it appears that in 1990 the lot became more

non-conforming than it had been before, at least as to lot size, lot coverage, and parking.

We cannot determine from the materials supplied by the parties whether that division

constituted a violation of '3(c) of the Ordinance, whether that section or a similar section

was in the ordinance in 1990, or whether the owner had obtained a variance, special

exception or other approval of the resulting undersized lot or the lack of off-street parking

for the business on the lot. '3(d).

       As it now exists, the lot and building do not comply with the Zoning Ordinance in

the following respects. The lot size is .14 acre, much less than the minimum one-acre lot

size for commercial uses in the Commercial district, '6(B)(2)(b), and just over the one-

eighth acre size allowed for any development of an existing small lot. '3(e). Its frontage

is 56 feet, less than the minimum of 150 feet required for commercial uses in the
Commercial district. '6(B)(2)(b). Its lot coverage is approximately 68%, exceeding the

25% limit for commercial uses in the Commercial District. '6(B)(2)(b). It also fails to

meet the required setbacks of 40 feet from the limits of the public road and from any

other property line, as all its setbacks are less than 20 feet. '6(B)(2)(b).


       A fifteen-foot-wide driveway serving the property runs along the north side of the

building for a length of approximately forty-eight feet. The driveway does not meet the

minimum width of twenty feet required for commercial uses in the Commercial District.

'6(B)(2)(b). The driveway has enough room to park one or two employee vehicles and

to provide access to the building='s side door and to the dumpster, located at the far end

of the driveway. No other parking is available on the property. The property therefore

lacks the minimum required parking (of 200 square feet (one space) per every three

persons to be accommodated on the premises) for its existing 25-seat restaurant plus its

apartment.       The property is located close to the center of the >village' in the

Commercial zoning district.   Businesses in this area attract large numbers of tourists,

especially during fall foliage and ski season. A total of approximately 125 to 148 public

parking spaces are available nearby: along the four branches of Main Street, including

Vermont Routes 9 and 100, and in the three public parking lots. Restaurant seating in the

area using those spaces represents over 700 seats, without addressing the parking

requirements for other retail businesses. As the DRB recognized in the present decision
on appeal, parking in the >'village' area is already insufficient to meet the needs of local

businesses, and addressing this deficiency is a community problem that has not yet been

resolved.

       In the present application, Appellant-Applicant has applied for conditional use

approval to expand the restaurant and brew pub from twenty-five seats to eighty-five seats

by converting the second floor from office and storage space to restaurant use and by

converting the third floor from an apartment to office space, eliminating the apartment use.

After remodeling, Appellant-Applicant proposes to use the ground floor for a forty-five seat

restaurant, the kitchen, the brewery, and two restrooms, and proposes to use the second

floor for a thirty- to thirty-five seat bar, and two additional restrooms. Appellant-Applicant

also proposed to present performances of live music in the restaurant and to change the

windows and doors leading to a second-floor porch to make it available to patron use.

Appellant-Applicant does not propose to change the building's footprint.

       The DRB granted Appellant-Applicant's conditional use permit, although it noted that

the application fails to meet the off-street parking requirements of the Zoning Ordinance,

that the existing public and on-street parking is inadequate and that the available parking

"does not meet the need already." The DRB specifically concluded that A'the applicant's

additional seating request will not greatly increase the number of people that are already

here looking for non-existent parking spaces," and stated that it had not applied the
''6(B)(2)(b) parking requirements "to Commercial Conditional Use Permits in the Village

area for more than twelve years specifically because of the lack of potential new parking

spaces."


       While the Court understands the serious problem of lack of off-street public or

private parking spaces in the >village' area, neither the DRB nor this Court, sitting in the

place of the DRB, may disregard the requirements of the Zoning Ordinance. If the Town

wishes to define the boundaries of the >village' area and to suspend the applicability of the

'6(B)(2)(b) parking requirements to commercial conditional use permits in the 'village'

area, as the DRB says has been done de facto for the last twelve years, it must do so by

amending the ordinance. This Court cannot apply or follow an unwritten practice of the

DRB; rather, the standards applicable to conditional use applications must be ascertainable

in the Zoning Ordinance. See In re Appeal of Miserocchi, 

, 325 (2000); and

see In re Handy and In re Jolley Assoc., 

, 344-49 (2000). Nor is it fair to

applicants for a Town to have unwritten zoning requirements or exemptions, both because

they might be differentially applied to one application and not to another, and because

there is no way for an applicant to know in advance whether to proceed with an

application that may not appear to comply with the zoning standards found in the

ordinance.
       Similarly, if the DRB wishes to allow applicants to satisfy the parking requirements

of the Zoning Ordinance by demonstrating that sufficient parking spaces are available

nearby in either public or private lots, the Town must amend its ordinance to adopt such a

provision.   See, e.g., the ordinances applied in In re: Appeals of Miserendino, et al.,

Docket Nos. 85-5-99 and 191-10-99 Vtec (Vt. Envtl. Ct., Jan. 13, 2000); aff'd' Docket

No. 2000-189 (Vt. Sup. Ct., Aug. 23, 2001) (three-justice panel, unpublished) (applying

Town of Warren Zoning Bylaws Article VI, '3(K)), which allows the Planning Commission

to "waive or revise" the parking standards based on its review of the specific proposed

"mix of uses" and the "proximity to public parking;" and In re Appeal of Hehir, Docket No.

130-6-00 Vtec (Vt. Envtl. Ct., Dec 28, 2001), aff'd' Docket No. 2002-064 (Vt. Sup. Ct.;

Sept 25, 2002) (three-justice panel, unpublished) (applying City of Burlington Zoning

Ordinance ''10.1.13, which allows off-property parking to count towards the parking

requirement as long as the spaces are not more than 400 feet from the lot that the

parking spaces serve).


       We note for the parties' guidance that if the Town wishes to adopt a parking waiver

provision, or to place a moratorium on applying the parking standards to commercial

conditional uses in a defined 'village' area, or to provide standards for determining whether

off-site parking can be counted towards satisfaction of an applicant's parking requirements,

a new application could be considered under the proposed ordinance amendment as soon
as it is proposed for public hearing (and for 150 days thereafter). Since July of 2001, it

has not been necessary to wait until the amendment has been adopted or until its effective

date. 24 V.S.A. '4449(d) (formerly ''4443(c)).

      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Cross-Appellants' Motion for Summary Judgment is GRANTED, and Appellant-Applicant's

Motion for Summary Judgment is DENIED, concluding the appeal. Appellant-Applicant's

application fails to meet the parking requirements of the Zoning Ordinance and must be

denied, without prejudice to resubmitting the application should the Town propose an

ordinance amendment under which it could be considered.

      Based on this decision, the hearing reserved for June 7, 2005 has been cancelled.




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      Done at Berlin, Vermont, this 11th day of May, 2005.
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                           _________________________________________________
                                  Merideth Wright
                                  Environmental Judge
      '[1]
             Prohibition of customers on second-floor porch, prohibition of amplified music;
and prohibition of live music after 10:00 p.m. on Sunday through Thursday nights and after
midnight on Friday and Saturday nights.