Tyler self storage permit reinstated
"We're very pleased with the decision," said David R. Cooper, an attorney with the Rutland based law firm Kenlan, Schwieber, Facey & Goss P.C. who represented Tyler.
Cooper said the neighbors could appeal the decision to the State Supreme Court, but he was unsure if it was their intention to do so. The original zoning permit was issued on May 21, 2009 following approval of the site plan. However, neighbors of the proposed project appealed the decision of then Dorset Zoning Administrator Joseph Bamford. Their contention was that a self storage facility did not fit the use of "retail sales/rentals" as defined by the bylaws, according to the Environmental Court decision.
A public hearing was held on Aug. 31, 2009, after which the zoning board of adjustment (ZBA) issued a written decision voiding the permit. Following concerns voiced by Tyler about the validity of the ZBA's decision, the neighbors filed an appeal with the Environmental Court on Sept. 29, 2010. The neighbors asserted that if the ZBA's decision was invalid then the permit should be voided because Bamford's decision to issue it was in error, according to the decision.
Tyler filed a cross-appeal on Sept. 30, 2009 asserting that the ZBA's decision to void the permit was invalid because it was not reached by a majority of the nine-member ZBA. When the vote was taken, four members of the board felt that the facility did not constitute a permissible use in the Village Commercial District, three felt that it was a permissible use and two did not vote, according to the decision.
Given that "retail rentals" were determined to involve small-quantity rentals directly with the consumer, the Environmental Court rejected the neighbors argument that permissible retail uses have to operate as a store or shop to meet the definition of "retail" as stated in the bylaws. According to the decision, even if "retail rentals" were only allowed in a store or shop, they determined the facility proposed by Tyler would qualify as such.
The neighbors also argued that retail sales and retail rentals must deal in merchandise to be allowed in the Village Commercial District. However, the court disagreed stating that "although the provision refers to merchandise, it does not require all retail activities to deal in merchandise; it merely restricts where merchandise can be sold, stored, or displayed if the retail use deals in merchandise," according to the decision.
When the project went before the planning commission in May of 2009 it met all of the criteria required by the commission's site plan review and the few concerns that were addressed and answered adequately. One of those concerns centered around hours of operation. There was some concern that people might access the storage units at odd hours, possibly creating a disturbance. To alleviate that concern, Tyler stated at the time that he would install a gate around the facility and post hours of operation from 7 a.m. to 8 p.m. for the three facilities - all of which are expected to be 2,000 square feet.
A call to Tyler was not immediately returned.
The attorney for the neighbors, Robert Woolmington, did not immediately return a phone call.
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