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OF VERMONT
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ENVIRONMENTAL
COURT
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In r=
e:
Appeal of Jenness & Berrie =
<=
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Docket
No. 134-7-04 Vtec
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nbsp; Decision
and Order on Cross-Motions for Summary Judgment
Appellant-Applicants Frederick L. Jenness and David S.
Berrie appealed from the decision of the Zoning Board of Adjustment (ZBA) =
of
the Town of Dummerston denying their zoning permit for the construction of=
a
house on Stickney Brook Road.
Appellant-Applicants are represented by Timothy J. O=3DConnor Jr., Esq. and Elana S. Baron, Esq.; the Town is
represented by Robert M. Fisher, Esq., and Interested Persons Judith and
Raymond Enello are represented by Walter G. French, Esq.
Appellant-Applicants and the Enellos have each moved for
summary judgment on the questions of whether the subject property qualifie=
s for
the small lot exemption in '601 of the Zoning Bylaw; whether a variance is needed to
develop the property as proposed; and whether the application has changed =
so
significantly since the ZBA decision appealed from to require remand to the
ZBA. The following facts are
undisputed unless otherwise noted.
Appellant-Applicants own a 1.1-acre parcel of land in t=
he
Rural Residential zoning district.
The parcel is in the form of a very shallow trapezoid, three sides =
of
which are segments of adjoining roadway. The parcel is bounded on its sout=
herly
side by a steep hill at the boundary of the Enello property, and on its ot=
her
sides by segments of Stickney Brook Road, an unpaved town road (Town Highw=
ay
47). One segment of Stickney=
Brook
Road is southeasterly of its intersection with Leonard Road; one segment of
Stickney Brook Road is between its intersection with Leonard Road and its
intersection with Beaver Road; and the third segment turns to the south af=
ter
the intersection with Beaver Road.
The property=3Ds width and depth measurements both exceed 40 feet.
Appellant-Applicants=3D parcel does not meet the two-acre minimum lot size for=
the
Rural Residential zoning district. '220. If i=
t is a
pre-existing undersized lot, it could still be developed for a use permitt=
ed in
the district if it had been in separate ownership from surrounding lots as=
of
the enactment of the zoning bylaw that established the minimum lot size, a=
s it
is greater than one-eighth acre in area and has a minimum depth and width =
of
forty feet
As of 1940, a .9-acre parcel across (to the northeast o=
f)
Stickney Brook Road, containing a house and a garage, as well as the subje=
ct
property, were owned by Frank Amato in a single deed. In 1940, Amato sold the improved =
lot
northeast of Stickney Brook Road to the Boyingtons, retaining the subject
parcel. In 1960, the Boyingt=
ons
sold the improved lot northeast of Stickney Brook Road to Carl and Bernice
Anderson. A few days later, =
the
Andersons also purchased the subject property on the southerly side of Sti=
ckney
Brook Road from Frank Amato. From
1960 until 2001, the Andersons owned both the subject property and the imp=
roved
lot northeast of Stickney Brook Road, holding them in separate deeds. The property was taxed as a single
parcel.
In July of 2001, Bernice Anderson sold one acre of the
subject property to Appellant-Applicants, recorded at Book 76, Page 54 of =
the
land records. In October of =
2001,
she sold the improved lot northeast of Stickney Brook Road to other owners=
not
involved in this litigation.
Earlier litigation (Docket No. 56-4-03 Vtec) involving
Appellant-Applicants=3D appeal from the denial of a variance for a previous pl=
an
for this property was withdrawn with prejudice in January of 2004, leaving=
the
denial of the variance in place. In
March of 2004, Appellant-Applicants applied for a zoning permit to place 2=
8' x
38' dwelling on the property, located as shown on an accompanying site
plan. The Zoning Administrat=
or=3Ds grant of that permit was appealed by the Enellos to t=
he
ZBA, which denied the permit in late June of 2004, resulting in the present
appeal to this court. On Dec=
ember
7, 2004, Bernice Anderson quitclaimed to Appellant-Applicants additional l=
and
southerly of what had been the southerly boundary in the 2001 deed, and wh=
ich
is described in the 2004 deed as having been Ainadvertently omitted@ in the 2001 conveyance. This deed is recorded at Book 88,=
Page
345. Due to the December 2004
quitclaim deed, the available building envelope on the property is larger =
than
it was at the time of the ZBA decision.
Absent language in the zoning ordinance to the contrary=
, Aa parcel=3Ds exempt status as a non-conforming use is not diminish=
ed,
nor is merger automatically triggered, when and if the parcel is brought i=
nto
common ownership with an adjoining parcel after the effective date of the
ordinance.@ Appea=
l of
Weeks, 167 Vt. 551, 557 (1998).
The Bylaw does not specifically address merger, but this parcel came
into common ownership before the adoption of the first zoning ordinance.
The parties also moved for summary judgment regarding
whether, if Appellant-Applicants=3D lot were to qualify for the '601 existing-small-lot exemption, the lot also meets th=
e '220 setback requirements for the construction of a
single-family home. Section =
220
requires for residential uses a 50-foot Abuilding setback minimum;@ a 75-foot Arear yard minimum;@ and a 40=
-foot Aside yard minimum.@ The Byla=
w does
not define Arear yard@ or Aside yard,@ and does not contain any special provisions for a corn=
er
lot. The Bylaw defines=
Abuilding setback minimum,@ by reference to '615, which refers to the Afront yard setback@ and measures it from the roadway right-of-way or center
line. Thus, the distinction =
between
the front, side, and rear setbacks is not determined by where the architec=
t has
chosen to place the primary entrance to the building. Rather, the front setback is defi=
ned in
terms of the building=3Ds relation to the adjoining roadway rights-of-way. Thus, in the present case, any st=
ructure
to be constructed on this property must meet the 50-foot Abuilding setback minimum,@ or front setback from each segment of Stickney Brook R=
oad.
=
Because
the property has three >front=3D yard segments, its remaining boundary along the Enello
parcel should be treated as a side yard, as it is the boundary adjacent to=
a >front=3D yard; that boundary should not be treated as a rear
yard. Compare[2],
Appeal of Comi, Docket No. 95-6-04 Vtec (Vt. Envtl. Ct., Mar. 14, 2=
005),
slip op. at 2; Appeal of Racine and Sousa, Docket No. 168-8-02 Vtec=
(Vt.
Envtl. Ct., Jan. 10, 2003), slip op. at 3B4; Appeal of Green Mountain Habitat for Humanity and
Appeal of Blair and Devlin, Docket Nos. 19-1-02 Vtec and 88-4-02 Vtec =
(Vt.
Envtl. Ct., Dec. 12, 2002), slip op. at 5; Appeal of Heffernan et al.,
Docket No. 170-8-00 Vtec (Vt. Envtl. Ct., Sept. 24, 2001), slip op. at 4.<=
span
style=3D'mso-spacerun:yes'> Therefore, the remaining boundary=
along
the Enello parcel must meet the 40-foot side yard setback requirement. '220.
Applying the 50-foot front setback and the 40-foot side
setback leaves an ample building envelope for Appellant-Applicants to cons=
truct
or place a single-family residence in compliance with the dimensional
requirements of the Bylaw; however, the most recently proposed placement d=
oes
not comply with that building envelope.&n=
bsp;
(See attached diagram.) The
orientation of the house in relation to the boundaries, that is, the locat=
ion
of the entrances, does not affect the available building envelope. Because there appears to be an ad=
equate
building envelope, the property does not require a variance from the setba=
ck
requirements. Indeed, it is
difficult to see how it could meet the second of the five variance criteri=
a, 24
V.S.A. '4469(a)(2), which requires a showing that there is Ano possibility that the property can be developed in st=
rict
conformity with the provisions of the bylaw and that the authorization of a
variance is therefore necessary to enable the reasonable use of the proper=
ty.@
Because the property is larger than it was at the time =
of
the ZBA decision on appeal in this case, because Appellant-Applicants have
changed the placement and the orientation of the house, and because the
placement of the house as proposed fails to comply with the setbacks (buil=
ding
envelope) as defined by this decision, a complying proposal will need to be
reviewed at the municipal level before it is properly before the Court.
Appellant-Applicants could submit that application while
this appeal is pending, so that any appeal of it could be consolidated with
this appeal already before the Court.&nbs=
p;
In the alternative, they may wish to have the Court conclude its he=
aring
and rule on whether the property qualifies for the existing small lot
exemption, prior to taking the revised application to the ZBA. As the Court is obligated under
V.R.E.C.P. 2(b) to sequence related appeals to make the most efficient and
effective use of the Court=3Ds and the parties=3D time, we ask the parties to discuss the necessary timi=
ng
with the case manager at the telephone conference, and note that a reduced
filing fee would apply to any such additional appeal, as long as the prese=
nt
appeal is still pending.
Accordingly, based on the foregoing, it is hereby ORDER=
ED
and ADJUDGED that Appellant-Applicants=3D motion for summary judgment is GRANTED in part, as to =
the
applicable setbacks and resulting building envelope, and as to the scope o=
f the
existing small lot exemption (relieving an applicant from the lot size, wi=
dth
and depth requirements but no other dimensional requirements), but it is
otherwise DENIED as material facts are in dispute as to whether merger has
occurred or whether the lot qualifies as an existing small lot. Interested Persons=3D cross-motion for summary judgment is GRANTED in part, =
as to
the need for municipal consideration of any revised application, but it is
otherwise DENIED.
Please see the enclosed notice of the telephone confere=
nce
scheduled with the case manager in this matter.
Done at Berlin, Vermont, this 6th day of
September, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
(Not=
e:
attached diagram omitted in electronic version of this decision.)
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