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ENVIRONMENTAL
COURT
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Appe=
al of
T & M Construction & Development Corp. } Docket No. 172-10-03 =
Vtec
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nbsp; Decision
and Order
Appellant T & M Construction & Development Corp.
appealed from a decision of the Zoning Board of Adjustment (ZBA) of the To=
wn of
Swanton, denying Appellant=3Ds application for a variance from both side setback
requirements for an existing narrow lot.&=
nbsp;
Appellant-Applicant is represented by Vincent A. Paradis, Esq.;
Interested persons Lonija Vitols, John F. McEnrue, John W. Kralik, David
Reissig, Gene Prouty, Thomas K. Pierce, Robert L. Barker and Carolyn Wheel=
er
appeared and represented themselves.
The Town of Swanton did not enter an appearance in this appeal.
An evidentiary hearing was held in this matter before
Merideth Wright, Environmental Judge.&nbs=
p;
A site visit was taken at the conclusion of the hearing with the pa=
rties
and their representatives. T=
he
parties were given the opportunity to submit written memoranda and request=
s for
findings. Upon consideration=
of the
evidence, as illustrated by the site visit, and of the written memoranda a=
nd
requests for findings filed by the parties, the Court finds and concludes =
as
follows.
Appellant-Applicant T & M Construction & Develo=
pment
Corp. owns a small parcel of land, greater than an eighth of an acre in si=
ze,
located on the shore of Lake Champlain at 174 Maquam Shore Road (Vermont R=
oute
36), in the Shoreland Recreation zoning district of the Town of Swanton.
In the Sh=
oreland
Recreation zoning district (Table 2.2(E)(1)), an existing lot of this size
requires a 35-foot front setback from the street line, a rear setback
The lot is served by municipal water supply, and by an
approved septic system with sufficient capacity to serve a three-bedroom
residence. In 2002, Appellant
received a building permit to install a 12' x 68' single-family mobile hom=
e on
the lot, oriented to comply with all the required setbacks.
Instead of installing the permitted mobile home on the =
lot,
Appellant-Applicant has applied in the present application for a variance =
of
five feet on each side from the 15-foot side setback applicable to this
property, to construct a stick-built, wheelchair-accessible[2],
single-family house on a 22' x 40' footprint. The house is proposed to be 22 stories in height and to have three bedrooms. However, the exterior elevations,=
design
or appearance of the house, and particularly its height and appearance wit=
hin
the five feet of side setback on each side for which the variance is sought
(the >variance setback areas=3D), was not proposed in this application nor presented in
evidence.
In order to obtain a variance any application must meet=
all
five requirements of '9.4(A). T=
wo of
those five criteria for a variance, ''9.4(A)(1) and (3), are not at issue in this appeal, as =
the
ZBA found that they had been met and no party appealed. However, the ZBA denied the varia=
nce
based on the failure of the application to meet the other three requiremen=
ts
for a variance, ''9.4(A)(2), (4) and (5), making those criteria at issue =
in
this appeal.
The 8' x 40' recreational travel trailer now on the
site is not designed for yea=
r-round
use, is not wheelchair-accessible, and is not permanently affixed to the r=
eal
estate or permanently connected to the municipal water supply or the on-si=
te
septic system. Unlike a resi=
dential
mobile home, it does not have or qualify for a federal Housing and Urban
Development certification that it is acceptable for residential use. The fact that this recreational t=
railer
will fit on the site without the need for a side setback variance therefore
does not demonstrate a reasonable use of the property without the need for=
a
variance.
Unlike the foundation proposed in the present applicati=
on,
the existing concrete pad on which the recreational travel trailer is loca=
ted
does not follow the slope of the lot.&nbs=
p;
Such a pad would also be necessary to create a level surface for the
placement of the approved mobile home or any other prefabricated mobile ho=
me on
the site. The concrete pad r=
aises
the central portion of Appellant-Applicant=3Ds lot above the ground level of the two lots on either =
side
of it, causing the potential for ground-level drainage onto the neighboring
lots.
However, Appellant-Applicant proposes a 22-story house, yet has not provided any elevations, plan=
or
roof design of a proposed building, although it is proposed to be two stor=
ies
high at the eaves within the side setback variance area, with a total heig=
ht
from 29 to 33 feet, and not more than the 35-foot height limit in the zoni=
ng
regulations. Without present=
ing
evidence as to the roof orientation, type, and drainage, and as to the bul=
k of
the building, Appellant-Applicant has not met its burden of proof to show =
that
the volume or shape of the proposed house within the setback variance areas
would not conduct drainage of water onto the adjacent properties and there=
by
impair their appropriate use, or to show that its bulk would not loom over=
the
adjacent properties and thereby impair their appropriate use and reduce th=
eir
access to solar energy.
Accordingly, the variance must be denied, without prejudice, as
Appellant-Applicant has not shown that it meets '9.4(A)(4).
That is, a house with the proposed footprint could be d=
esigned
with a flat roof, or with a peaked or gambrel roof aligned north to south =
with
the drainage to the east and west, or with a peaked or gambrel or A-line r=
oof
aligned east to west with the drainage to the north and the south, or with=
a
shed roof sloping and draining to the east. A house with the proposed footpri=
nt also
could be designed in any number of different ways, for example so that it =
is as
much as 22 stories high all the way out to the edge of the footpr=
int, with
a flat or shed roof, or so that it is 22 stories at the center of a peaked or gambrel or A-line=
roof
and slopes down to a lower height within the setback variance areas, or as=
a
group of sections with a higher section nearer the road and one or more lo=
wer
sections nearer the adjoining houses.&nbs=
p;
The drainage designed for a house with the proposed footprint could
result in drainage from the roof onto the adjacent properties, or through
gutters conducting drainage from the roof towards the lake, or even with a
shallow internal valley, rather than a peak, to conduct drainage without
affecting the neighboring properties.&nbs=
p;
Without a design to consider in relation to the variance criteria, =
the
Court cannot make a positive findings that it will meet the variance crite=
rion
regarding the effect of the proposal on the neighboring properties. '9.4(A)(4)
The available building envelope on the property, withou=
t a
sideline setback variance, would only allow construction of a 13-foot-wide
house in the front of the lot, tapering to approximately 12 feet wide at t=
he
rear of the lot (due to the tapered shape of the lot), or the placement of=
a
12-foot-wide mobile home.[4] As these are the maximum exterior
dimensions without some variance, the interior finished width of even an
open-plan space would be only about 102 feet. It=
is
probable that some side setback variance is necessary to make reasonable
residential use of the property, whether for ramp landings and a 14-foot-w=
ide
mobile home or for some design of stick-built home. '9.4(A)(2). However, based on the present evidence,
Appellant-Applicant has not shown that the requested variance is the minim=
um
necessary to obtain relief, and particularly has not shown that a two-story
height within the setback variance area is necessary. '9.4(A)(5).
The prope=
rty
adjacent to Appellant-Applicant=3Ds property to the north, at 170 Maquam Shore Road, cont=
ains
a stick-built, year-round single-family residence. A shed extends into the side
setback adjacent to Appellant-Applicant=3Ds property. The
property adjacent to Appellant-Applicant=3Ds property to the south, at 178 Maquam Shore Road, cont=
ains
a concrete-block, year-round single-family residence. A preexisting garage is located w=
ithin
the side setback adjacent to Appellant-Applicant=3D
Many of the other properties along Maquam Shore Road in=
the
area are relatively small lots containing at least existing accessory
structures extending into the sideline setback area. Of the 141 lots on Maquam Shore R=
oad for
which data was presented, Appellant-Applicant=3D
Depending on the design and height of the proposed stru=
cture
and especially the height within the side setback variance areas, it is
possible that the requested variance would not alter the essential charact=
er of
the neighborhood if the height at least within the side setback variance a=
reas
did not exceed a single story, and if the bulk or volume of the remainder =
of
the house were designed so as to be compatible with the other neighborhood
houses and camps. An
appropriately-designed and -sized stick-built house might be as or more
compatible with the character of the neighborhood than a mobile home, even
though a 14-foot-wide mobile home with its associated ramps and landings w=
ould
occupy a smaller volume of the setback variance area. However, without a design and ele=
vations
for a proposed structure within the proposed footprint, the Court cannot f=
ind
that the proposed setback variance will meet '9.4(A)(4).
Based on the foregoing, it is hereby ORDERED and ADJUDG=
ED
that the variance requested by Appellant-Applicant is DENIED, without prej=
udice
to any future application showing the design or height of the proposed
structure within the requested variance setback area, so that the potential
effect of the proposal on the appropriate use or development of adjacent p=
roperty
and the other requirements of ''9.4(A)(2), (4) and (5) could be evaluated.
Dated at Berlin, Vermont, this 8th day of Au=
gust,
2005.
______________________________________
Merideth Wright
Environmental Judge
&nbs=
p;
[2] While Appellant-Applicant is
correct that accessibility is a policy goal for both public and residential
buildings in Vermont (see 21 V.S.A. ''271 et seq. and '286), it is not required for premanufactured homes. In addition, we note that residen=
tial
entry stairs and ramps do not require a zoning permit. '9.1(A)(2).
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