STATE OF VERMONT

ENVIRONMENTAL COURT

Decision and Order on Cross-Motions for Summary Judgment

Michael Waters appeals from the September 21, 2003 decision of the Zoning Board of Adjustment (ZBA) of the Town of North Hero, granting approval to Kenneth and Teresa Kajenski to modify their residential dwelling by adding a second story and a basement. The parties each move for summary judgment. Appellant Michael Waters represents himself; Appellee-Applicants Kenneth and Teresa Kajenski (Applicants) are represented by Ronald A. Shems, Esq.; and the Town of North Hero is represented by Richard C. Whittlesey, Esq. The following facts are undisputed unless otherwise noted.

Applicants own a small trapezoidal parcel of property located at 6798 U.S. Route 2 in the Town of North Hero. Route 2 is the western boundary of the property and Lake Champlain is its eastern boundary. Appellant owns the abutting property to the north.

A 24' x 36' house has been located on Applicants= property since approximately 1963, prior to the enactment of the Town= s first zoning bylaws in 1972. In 2000 a variance was issued by the ZBA allowing the addition of a 14' x 36' deck on the east side of the house, facing the lake. The variance decision was not appealed, became final, and is not at issue in this appeal; the deck was built in 2001.

The house is located in the northwestern corner of Applicants= lot, at an angle to Route 2 and to Appellant= s property line. Based on the diagram in the application, it is oriented so that its front (west) side is located at a distance of from 39 feet to 49 feet from Route 2, and its north side is located at a distance of from 172 feet (at its northwestern corner) to 42 feet (at the northeastern corner of the deck) from Appellant= s property line. Due to this orientation, the northwestern corner of Applicants= house is located, at its closest point, approximately 40 feet from Appellant= s house.

Applicants= house is therefore a preexisting, non-complying structure, because it is located closer to Route 2 than the 100-foot setback required by ' 402 and because some portion of the house is located closer to Appellant= s property line than the 25-foot side setback required by ' 402. Applicants= lot is also non-complying in that it is smaller than the minimum lot size required for the district.

Due to the limitations of the soils found in the area, the leach field for the septic system serving Appellant= s house is located in the southwest corner of Appellant= s front yard, adjacent to Applicants= property, and extends into the side yard area between Appellant= s house and a shed located on Appellant= s property near the property line. Appellant is concerned that the proper functioning of his leach field is dependent on evaporation from it, which, in turn, is assisted by sunlight falling on the surface of the ground above the leach field, and that any additional height on Applicants= house would block the sunlight now able¹ to fall on his leach field.

The Zoning Bylaws provide for one type of permit (referred to in the bylaws as a A Building Permit,@ A Land Use Permit,@ or simply A Permit@ ) to be issued by the Zoning Administrative Officer (Zoning Administrator) under ' 225, upon a determination that the proposal complies with the bylaws. Under ' 227, if a proposed use or structure requires a Conditional Use Permit, the Administrative Officer is prohibited from issuing the ' 225 Permit until the ZBA first grants conditional use approval. Under ' 227(E), A [a]ny proposed Conditional Use shall not adversely affect [. . . ] [u]tilization of renewable energy resources.@ Thus, if conditional use approval were required for Applicants= proposal, the ZBA (and hence this court on appeal) would have to consider whether and to what extent the proposal would block sunlight that otherwise would fall on Appellant= s property.

The distinction between a permitted use Permit issued by the Administrative Officer under ' 225 and a Conditional Use Permit or approval issued by the ZBA under ' 227 is reflected in two subsections of ' 275 which address additions to non-complying buildings and structures. Section 275(B) provides that:

[v]ertical additions to non-complying buildings and structures may be allowed by Permit as long as the additions do not extend horizontally beyond the outside walls enclosing the original building, or beyond the perimeter of the original structure.

By contrast, an applicant may still apply for an addition that does not qualify under ' 275(B), but such an application must go before the ZBA for conditional use approval under ' 275(C), which provides that:

[a]dditions to any non-complying building or structure which was in existence prior to the adoption of Zoning Regulations in North Hero (February 1, 1972) may be allowed by Conditional Use Permit. No portion of any addition can project further into a required setback than the existing building projects. The maximum area of any such addition cannot exceed the greater of 120 sq. ft. or 10% of the building area.

In 2003, Applicants filed an application to the ZBA to add a second story and a basement to their existing residential dwelling. On the application, a check was placed next to A Conditional Use permit or Change of Conditional Use permit,@ however, the application also stated that the A provision of the zoning ordinance in question@ was ' 275(B). Section 275(B) requires only a zoning permit from the Administrative Officer, not Conditional Use approval from the ZBA.

Applicants propose to add a second story to their existing house, raising the height of the house to less than thirty feet at the peak, in compliance with the height limitation of ' 322. The proposed second story is designed to be wholly within the perimeter of the existing structure, simply raising the roof to add the second story. The second story as proposed includes an unroofed open deck area in the center of the second story, within the perimeter of the existing structure. A separate balcony, projecting less than four feet from the house wall, is proposed to run along the length of the second story, on the east side of the house facing the lake.

Applicants also propose to construct a basement above 102 feet in elevation. However, the application stated that if the basement were to extend below 102 feet in elevation, it would be flood proofed to meet the requirements of ' 370 of the Zoning Bylaw, containing the Flood Plain Regulations.

A hearing before the ZBA was set for September 18, 2003. Notice of the hearing appeared in the local paper, A The Islander,@ on September 2, 2003. The notice stated: A Hearing: Application #8943-C, applicants Kenneth & Teresa Kajenski, tax map # 05-01-51, located on US Rte 2, is seeking to replace the foundation, add second floor and deck to an existing dwelling.@ Notice of the hearing was also posted in the town. Adjacent property owners, including Appellant, were notified by regular mail of the application and the time and date of the ZBA hearing. Appellant asserts that he received the notice approximately five days prior to the September 18, 2003 hearing. He attended the meeting and expressed his concerns regarding the potential for loss of privacy and sunlight, his views, blocking of air currents, Applicants= fence, and the potential for additional noise from additional occupants and their watercraft.

At the September 18, 2003 ZBA meeting, all seven board members were present and voted unanimously to approve Applicants= application. The September 21, 2003 written decision stated that, A [b]y action of the majority of the Board of Adjustment, it is found that the activity is permitted.@ The decision granted approval for the proposed project under ' 275(B), and required that A [a]ny horizontal construction beyond the existing footprint must comply with Section 401@ and that A [i]f the basement is to be constructed at less than 102 feet of elevation, it must be constructed in compliance with Flood Plain Regulations, see Section 370.@ The decision was signed by Edward W. Porter, ZBA Co-Chair.

Question 1 of Appellant= s Statement of Questions claims that the ZBA= s written decision is defective A because it wasn= t physically signed by a majority of the North Hero Board of Adjustment.@ In this case, all seven board members were present and voted on Applicants= application at the September 18, 2003 ZBA meeting. The minutes reflect that the roll-call vote to approve was unanimous. Thus, the ZBA met the majority requirement and the procedures outlined in 24 V.S.A. ' 4464(a).

The written decision stated that the conclusion was reached by A action of the majority of the Board of Adjustment.@ The written decision was signed by one of the two co-chairs of the ZBA. The chairman or vice chairman of a board is authorized by statute to sign a decision that has been approved for issuance by the board, when such decision is required to be in writing. 24 V.S.A. ' 1141. Thus, the lack of the signatures of the other members of the ZBA does not render the written decision defective.

Questions 2, 3 and 5 relate to whether the Town provided proper notice of the ZBA hearing on Applicants= application. Questions 2 and 3 claim that the approval should be voided A because appellant had no prior knowledge of the case to be heard and where the town did not share details of the submitted proposal so that appellant could prepare and argue his case,@ and because the notice of hearing A did not indicate that the hearing involved either a Conditional Use or Variance review.@ Question 5 inquires whether the Town A has a responsibility to make a citizen aware that a neighbor applied for a permit . . . so that the citizen may visit the town office and see what it= s all about, prior to being called to a ZBA hearing where a final decision is made without further review.@

A town is only obligated to comply with the notice requirements provided by statute and with any additional notice requirements it has adopted in its zoning bylaws. In the present case, the Town complied with the notice requirements set forth in 24 V.S.A. ' 4447², made applicable by ' 280 of the Zoning Bylaws. Public notice is required to be given not less than 15 days prior to the hearing date by publishing the notice in a newspaper of general publication in the municipality, and by posting the notice in one or more public places in the municipality. The Town published the notice in the local newspaper sixteen days prior to the hearing and posted notices of the hearing in a public place in the town. The Town also notified the adjacent landowners by mail; Appellant asserts he received his notice five days before the hearing.

The application was a public record, which Appellant could have examined at any time prior to or during the hearing at which the ZBA rendered its decision. The Town has no obligation to provide copies of a permit application, only to provide the required notice to allow participants to examine the application prior to the hearing if they wish to do so. Appellant did in fact attend and participate in the hearing. The Town complied with the notice requirements and Appellant also received actual notice of the hearing to enable him to attend and participate³ in the proceedings.

Questions 4 and 6 address the adequacy of the ZBA= s decision. Question 4 suggests that the approval should be void A because the ruling did not address the issue of a deck that was announced in the Notice of Hearing and later seen on the applicants plans.@ Question 6 suggests that the ZBA should A have reviewed and included more detailed > findings of fact= to show that all reasonable issues (including septic systems etc) had been addressed prior to making a decision.@ The ZBA= s ruling did address the proposed deck shown on the plans because the proposed plans, including the deck within the second story and the balcony along the east side of the second story, were part of the application before the ZBA, and the ZBA voted to A approve the project as proposed.@ The ZBA= s findings were adequate to meet the statutory requirement that the ZBA decision include findings of fact, because the ZBA found that the application met each of the requirements of ' 275(B) and, therefore, qualified for a permit as a permitted use. 24 V.S.A. ' 4470(a); see also City of Rutland v. McDonald's Corp., 146 Vt. 324, 329-30 (1985) (findings should be sufficient to inform interested persons of the reasons for the decision). The ZBA properly did not consider the conditional use standards in ' 227 or the variance standards in 24 V.S.A. ' 4468(b), if it correctly determined that the application qualified for ' 275(B) approval as a permitted use.

Question 7 asks whether the Bylaws A should not define some standards by which vertical expansion may (or may not) be permitted, in order for them to be justly interpreted in line with their defined purpose (section 120).@ Question 8 asks whether the interpretation of the > purpose= section of the bylaws (section 120) A should follow the Town Plan (goal S).@ Similarly, Question 19 asks whether the proposed project is A compatible with the intent of the Bylaws that specifically quote the Town Plan (Sectn. 120).@

Appellant may wish to pursue amendments to the Zoning Bylaws if he feels they are insufficient to carry out the Town Plan. The Court must apply the Town= s Zoning Bylaws as they are written. Although a town plan may recommend many desirable approaches to municipal development, only those policies and provisions incorporated in the bylaws are legally enforceable. Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225-26 (1979); Smith v. Winhall Planning Commission, 140 Vt. 178, 183 (1981); and see In re Molgano, 163 Vt. 25, 30-31 (1994). As they now stand, the North Hero bylaws require compliance with the town plan only as a criterion for conditional use approval, by requiring that any conditional use not adversely affect the bylaws then in effect, ' 227(D), which bylaws include ' 120, that states the A intent@ of the bylaws to A further the purposes established in the town plan.@ Thus, only if conditional use approval were required for Applicants= proposal, would the ZBA (and hence this court on appeal) consider whether and to what extent the proposal complies with the town plan.

Question 9 addresses whether A raising a non-complying building into what was free air space with critical solar access@ constitutes A expanding [its] non-complying use, even if within the same footprint.@ Question 10 asks whether A the application for a basement and addition of a second floor and deck to a non-complying structure, should all be allowed under Section 275B.@ It is difficult to determine whether the word A should@ in this question asks whether this should be the Town= s policy as expressed in the Bylaws, or whether it inquires whether the application meets the requirements of ' 275(B).

Appellant is correct that Applicants= house is a preexisting structure, non-complying as to its west and north setbacks. Appellant correctly observes that there is a strong public interest in preventing the expansion of non-complying structures and that even the vertical expansion of non-complying structures is frequently prohibited under local zoning bylaws. See, e.g., In re Tucker, Docket No. 99-399 (Vt. Supreme Ct., Mar. 10, 2000) (three-justice panel). However, the Town of North Hero Zoning Bylaws specifically allow vertical additions to non-complying buildings and structures under ' 275. See In re Casella Waste Management, Inc., 2003 Vt. 49, & 7-19. Solar access is not a factor in deciding whether to grant a permit under ' 275(B), although it may apply to conditional use permits under ' 275(C) through the > renewable energy resources= provision of ' 227(E). Appellant may wish to pursue amendments to the Zoning Bylaws if he feels they should include such a requirement in ' 275(B), but the Court must apply the Town= s Zoning Bylaws as they are written.

Section 275(B) allows vertical additions as a permitted use, without the requirement of a conditional use permit, A as long as the additions do not extend horizontally beyond the outside walls enclosing the original building, or beyond the perimeter of the original structure.@ The second floor addition proposed in the application meets this requirement. The second floor open balcony extends only over the east-side deck approved in 2000. Even if that deck were not interpreted to be part of the > original structure= under ' 275(B), the east side balcony does not protrude into a required setback and is not more than four feet wide, and therefore it also complies with ' 401.

Similarly, under ' 275(B) the proposed basement would not horizontally extend the structure beyond its current footprint. Applicants propose to build the basement above 102 feet in elevation, which is allowed under the bylaws. If the basement had to be constructed below 102 feet in elevation, Applicants would have to apply for a permit amendment and would have to show that the proposed basement would be constructed in compliance with the regulations governing pre-existing, non-complying structures in Flood Hazard Areas, see ' 275(E) and ' 370(K).

Because the proposal falls within ' 275(B), conditional use approval by the ZBA under ' 275(C) is not required for this application.

Similarly, Question 11 asks whether a variance is required for the proposed project. Because the proposal meets the requirements of ' 275(B) and the height, balcony extension and basement elevation requirements of the Bylaws, no variance is required.

Questions 12 and 13 relate to whether ' ' 403 or 404(C) required this proposal to undergo conditional use approval. Both these sections are inapplicable. Section 403 allows a reduced front setback to be approved by the ZBA under the conditional use standards, if it is consistent with existing reduced front setbacks on adjacent properties within two hundred feet on either side of the proposed building. Section 404(C) exempts ground-level decks from the Lake Champlain setback if approved by the ZBA under the conditional use standards and the particular requirements of ' 404(C). The proposal does not involve a ground-level deck within the Lake Champlain setback, nor does it involve approval of a reduced roadside setback for a new building. Rather, as discussed above, the proposal is eligible for approval as a permitted use under the vertical extension provisions of ' 275(B).

In Questions 14 and 15, Appellant asks the Court whether ' 401 (projections into setbacks) and ' 404 (exceptions to setbacks) A can also be applied to another Article of the Bylaws, namely to Non-complying Buildings in Section 275.@ Under ' 400(A), A [a]ll Structures are subject to the Building Setbacks contained herein unless specifically exempted by these Regulations.@ An application may be eligible for one or more than one exemption under the Bylaws. This particular proposal is eligible for consideration under ' 275(B) and (E), and the east side balcony also meets the exemption in ' 401(D).

Question 16 asks whether a landowner A has any right to protect his access for sunlight,@ specifically concerning access for sunlight to fall on a leach field. This court can only determine what is required under the Zoning Bylaws. If Appellant has a cause of action regarding any property rights to access to sunlight, such a case must be brought in superior court, if at all, and this court cannot provide any advice in that regard. See, generally, Cause of Action Against Adjoining Landowner for Private Nuisance Caused by Obstruction of Light, Air, or View, 4 Causes of Action 645 (2004); and see Hubbard v. Town, 33 Vt. 295 (1860), rejecting the English doctrine of A ancient lights.@

Question 17 also seeks an advisory opinion beyond the jurisdiction of this court, asking whether A the town (or some other authority?) is responsible to see the [Applicants= ] leach field enlarged to accommodate an expansion from 2 bedrooms to 4 bedrooms.@ Local municipalities may regulate on-site septic systems within their zoning bylaws or through separate town ordinances adopted and approved pursuant to 24 V.S.A. ' 3633. Some towns leave the regulation of on-site septic systems to the state. The North Hero Zoning Bylaws only address new septic systems, in ' 229. If Applicants= addition has implications for the regulation of Applicants= septic system, it is beyond the jurisdiction of this court in this appeal.

Question 18 asks the Court to determine whether the proposed basement is A in fact above the 102 ft elevation, when in fact the adjacent ground level has been measured below 106 ft elevation.@ The ZBA (and hence this Court) can only act on what is proposed by an applicant in the application. In the present case, Applicants have applied to install a shallow basement above 102 feet in elevation, which meets the requirements of the regulations. If circumstances change so that the basement would in fact be installed below 102 feet in elevation, Applicants would at that time have to apply for a permit amendment and demonstrate that the amended proposal would be constructed in compliance with the Flood Plain Regulations in ' 370.

Accordingly, based on the foregoing, Appellant= s Motion for Summary Judgment is DENIED; Appellee-Applicants= Motion for Summary Judgment is GRANTED; and the Town= s Motion for Summary Judgment is GRANTED. The Town of North Hero Zoning Board of Adjustment was correct in finding that the application fell under ' 275(B), so that Appellee-Applicants are entitled to have the Administrative Officer issue a Permit under ' 275(B). ' 275(C) does not apply and Conditional Use approval by the ZBA was not required. This matter is remanded to the Administrative Officer for issuance of a zoning permit under ' 275(B), concluding the appeal. The hearing scheduled for March 29, 2004 is therefore canceled. A telephone conference will be held as scheduled on Thursday, March 18, 2004, to discuss any remaining procedural questions.

Done at Barre, Vermont, this 17^th4 day of March, 2004.

___________________
Merideth Wright
Environmental Judge

Footnotes

^1.      From the photographs it appears that existing deciduous trees near the property line between the two houses are taller than thirty feet in height. The questions of whether or to what extent those trees already block sunlight and to what extent they are located within Appellant’s or Applicants’ control are not before this court in this appeal, although those facts could be material to a private lawsuit between the parties.

^2.      Section 4447(a) is applicable to the notice for ZBA hearings on applications; §4447(b) is only applicable to notice of hearings on new bylaws, bylaw amendments, municipal plans and capital budgets.

^3.      The statute and bylaws do not make the Town responsible for any participant’s lack of further inquiry after that notice. However, we note that, if we were to reach the merits of the application in this appeal, the court would sit in the place of the ZBA to hear the application anew (de novo), without regard to what the ZBA decided before, and Appellant would have ample opportunity to prepare his evidence and arguments for this appeal.

^4.      Note: changes made in the last paragraph on page 1 and the first paragraph on page 2 by agreement of the parties as discussed in the conference on March 18, 2004.