= = ; &= nbsp; &nb= sp; = ; &= nbsp; STATE OF VERMONT

= = ; &= nbsp; &nb= sp; = ; = ENVIRONMENTAL COURT

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In r= e: Bloch Occupancy Permit &n= bsp; &nbs= p; } = Docket No. 94-5-05 Vtec <= /span>

(Appeal of Pete) = &n= bsp; }<= o:p>

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= ; &= nbsp; &nb= sp; Decision and Order on Motions for Summary Judgment

Appellants Richard and Teresa Pete appealed from a deci= sion of the Zoning Board of Adjustment (ZBA) of the Town of Charlotte, upholdin= g the Zoning Administrator=3Ds grant of a Certificate of Occupancy to Appellee-Appli= cants Robert and Nancy Bloch. Appellants have appeared and represent themselves; Appellee-Applicants are represented by Thomas F. Heilmann, Esq.; and the T= own is represented by Will S. Baker, Esq.&nbs= p; Appellee-Applicants have moved for summary judgment. The following facts are undisputed unless otherwise noted.

In May of 2004, Appellee-Applicants applied for a zoning permit for an addition^{^[1]} to the family room and master bedroom of their single-family house at 1188 Whalley Road, in the Rural zoning district. The house is non-conforming becau= se it does not meet the 50-foot side yard setback required in the district, as a ground-floor porch extends to approximately 25 feet from the side property= line adjacent to Appellants=3D property.

Appellee-Applicants proposed to replace the nonconformi= ng ground-floor porch with an enclosed family room on the ground floor, and to extend it vertically to accommodate an expanded master bedroom on the seco= nd floor. The proposed changes = did not extend any closer to the side property line than did the existing nonconfo= rming porch, but they would occupy a greater volume of the setback area, and therefore were an expansion of the nonconforming structure that should have been reviewed under '6.6^{^[2]} of the Zoning Bylaws. = See In re Appeal of Tucker, Docket No. 123-7-98 Vtec (Vt. Envtl. Ct., Aug. 2, 1999); aff=3Dd Docket No. 1999-399 (Vt. = Sup. Ct., Mar. 10, 2000) (three justice panel, unpublished) (permit to build on= e‑story building extending into side setbacks does not authorize expansion to two stories within the setbacks, even though it would not have violated the he= ight limitations or extended laterally any farther into the setbacks).

Instead of referring the application for consideration = as an expansion of a nonconforming use, the Zoning Administrator approved it as a permitted use. No party appe= aled the Zoning Administrator=3Ds decision to the ZBA, so that the zoning permit (#04-3= 3-TM) became final on May 25, 2004.

Appellee-Applicants completed construction in late Janu= ary of 2005, and applied for a Certificate of Occupancy. A Certificate of Occupancy certif= ies that the work for which the permit was issued was completed in accordance = with the approved plans and specifications and was completed in accordance with= Athe requirements of these regulations.@ Bylaws <= /span>'6.2(B). T= he Zoning Administrator took a site visit and inspected the construction, determined that Appellee-Applicants=3D addition complied with the zoning permit, and issued t= he Certificate of Occupancy. Appellants appealed its issuance to the ZBA and appealed the ZBA=3Ds action upholding its issuance to this Court.

Appellants first argue that the Zoning Administrator is= sued the May 2004 zoning permit in error because it unlawfully authorized the expansion of a non-conforming use. While Appellants are correct that the zoning permit was issued in e= rror, the opportunity to appeal that zoning permit was to appeal it to the ZBA w= ithin fifteen days of its issuance by the Zoning Administrator. In the absence of such an appeal,= it cannot now be challenged, either directly or, as here, indirectly. 24 V.S.A. '4472(d); Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142 (1989).&= nbsp;

Appellants next argue that the Zoning Administrator illegally issued the Certificate of Occupancy because, to obtain a Certifi= cate of Occupancy, Appellee-Applicants=3D addition must not only comply with its permit but must= also comply with the requirements of the zoning bylaws, and it does not do so.<= span style=3D'mso-spacerun:yes'> However, under 24 V.S.A. <= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>'4472(d), a challenge to the Certificate of Occupancy for this reason would also constitute an impermissible indirect challenge to t= he final, unappealed zoning permit. &nb= sp; See Appeal of Conrad, Docket No. 52-3-00 Vtec, slip op. at 3= B4 (Vt. Envtl. Ct., April 12, 2002).

Appellants also argue that Appellee-Applicants=3D zoning permit will entitle Appellee-Applicants to make unlimited additional illegal changes to their property in the future, based upon the improperly-issued but final permit. However, as the expansion authori= zed by the 2004 permit was Aimproperly authorized as a result of an error by the administrative officer@ it remains defined as a nonconformity. 24 V.S.A. ''4303(13), (14) and (15). Any future modifications wo= uld require review by the ZBA, not the Zoning Administrator, under '6.6 or whatever provisions of the Bylaws govern non-conforming uses at the time of the future application.

Accordingly, based on the foregoing, it is hereby ORDER= ED and ADJUDGED that Appellee-Applicants=3D motion for summary judgment is GRANTED, and the Zoning Administrator=3Ds issuance of the Certificate of Occupancy is upheld, thereby concluding this appeal.

Done at Berlin, Vermont, this 24^th day of October, 2005.

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Merideth Wright

Environmental Judge