=
=
; &=
nbsp; &nb=
sp; =
; &=
nbsp; STATE
OF VERMONT
=
=
; &=
nbsp; &nb=
sp; =
; =
ENVIRONMENTAL
COURT
}
In r=
e:
Appeal of Jenness & Berrie =
<=
/span>} =
Docket
No. 134-7-04 Vtec
}
=
; &=
nbsp; &nb=
sp; Decision
and Order on Motion for Reconsideration
Appellant-Applicants Frederick L. Jenness and David S.
Berrie 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. The Court issued a decision on su=
mmary
judgment on September 6, 2005.
Material facts remain disputed as to whether it qualifies for
consideration as a pre-existing undersized lot, '601; also see 24 V.S.A. '4412(2) (formerly '4406(1)), depending on whether or not it is considered =
to
have merged with another parcel across Stickney Brook Road.
Interested Persons Enello have moved the court to recon=
sider
one issue. The parties agree=
that
Appellant-Applicants=3D parcel does not meet the two-acre minimum lot size for=
the
Rural Residential zoning district, but that it is greater than one-eighth =
of an
acre in area and has a width and depth measurement each exceeding 40 feet.=
In the September 6, 2005 decision, the Court ruled that=
the Aso-called small lot exemption only exempts an existing =
small
lot from the lot size, lot depth and lot width (frontage) requirements, not
from any of the setbacks or other dimensional requirements@ and noted that A[i]f any of those other [dimensional] requirements cann=
ot be
met, the proposal would also require a variance.@ The Enel=
los
move the Court to reconsider this conclusion and instead to rule that the =
small
lot exemption only exempts an existing small lot from the minimum lot size
(area) requirement, and does not also necessarily exempt it from the
otherwise-applicable minimum lot depth and minimum lot width requirements.=
Such an interpretation would make surplusage of the
requirement in the small lot exemption requiring that an exempt small lot
nevertheless have not only a minimum area of an eighth of an acre, but also
have a minimum lot depth and width of at least 40 feet each. That is, in determining how small=
is >too small=3D to be developed even under the exemption, the statute =
sets
a minimum size (of 5445 square feet) and also a minimum >shape=3D, to limit how narrow and long an eighth-acre lot could
be. (Thus, a rectangular
eighth-acre lot could be no narrower than 40' x 136' 12".) =
In the
Rural Residential zoning district, while an exempt small lot could be as s=
mall
as an eighth of an acre under the statute, it would take a lot just under =
an
acre in area to meet the ordinance=3Ds otherwise-applicable frontage and lot depth requireme=
nts
of 200 feet each. If those
requirements were applicable, the minimum forty-foot width and depth dimen=
sions
of the small lot exemption would have no meaning. We will not interpret the statute=
, or
the equivalent section of the zoning bylaw, to make surplusage of any part=
of
it. Cantin v. Young, =
170 Vt.
563, 569 (1999) (mem.); In re Lunde, 166 Vt. 167, 171 (1997).
Accordingly, based on the foregoing, it is hereby ORDER=
ED
and ADJUDGED that Interested Persons=3D Motion for Reconsideration is DENIED.
Please see the enclosed notice of the telephone confere=
nce
scheduled to be held with the case manager in this matter. The parties are reminded from the
September 6, 2005 decision to discuss whether Appellants wish to file a
complying application with the ZBA, and, if so, whether this appeal can be
dismissed, with an agreement that any remaining issues could be raised in =
any
appeal from such future decision, or whether the parties wish to put this
appeal on an inactive status while the new application is being considered=
by
the ZBA.
Done at Berlin, Vermont, this 24th day of
October, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
|
1 |