                        STATE OF VERMONT

                     ENVIRONMENTAL COURT



         In re: Appeal of Megan    }
         Price                     }
                                     Docket No. 33-2-01
                                   }
                                     Vtec
                                   }
                                   }

                        Decision and Order

    Megan Price brought this appeal from a zoning permit issued by the
Zoning Administrator and upheld by the Zoning Board of Adjustment
(ZBA) of the Town of Castleton, approving the construction of a house
and attached garage, proposed by Appellee-Applicant, Garry Bowen,
on a 10.1-acre lot in the RR2A zoning district. Megan Price is now
represented by Jeffrey P. White, Esq. in a related case, but had
represented herself during the hearing on the merits of this appeal;
Garry Bowen is represented by John Serafino, Esq.; and the Town is
represented by John Liccardi, Esq. We will use the parties= names in
this decision, rather than their roles, to avoid confusion with the
related cases, Docket Nos. 202-10-99 Vtec and 31-2-01 Vtec, for
which a decision is also issued today.

   An evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge, who also had taken a site visit with the
parties regarding a related case the previous year. The parties were
given the opportunity to submit written requests for findings and
memoranda of law. Upon consideration of the evidence, the site visit,
and the written memoranda and proposed findings, the Court finds and
concludes as follows.

     The property at issue in the present case involves a 19-lot
subdivision of ten-acre lots known as the Billow Subdivision, off Pond
Hill Road, in which Ms. Price owns 16 lots, Mr. Bowen owns two lots
(Lots 10 and 11), and another landowner owns the remaining lot (Lot
12). Agricultural and forest uses and one- and two-family dwellings are
permitted uses in the zoning district, as are home occupations,
accessory uses, and essential services. Access from Pond Hill Road to
the lots at issue in this matter is by a private right-of-way sometimes
known as Applesauce Hill, shared in common with the other lot owners
in the subdivision. It is approximately a half mile from Pond Hill Road
along this right-of-way to the front or east of Mr. Bowen= s Lot 10 and
ending at Ms. Price= s Lot 9, adjacent to Lot 10 on the north. Ms.
Price= s Lot 9 is located directly to the north of Mr. Bowen= s Lot 10,
and Ms. Price= s lots 16 and 17 are located directly to the southeast of
the easterly portion of Lot 11. Another branch of the right-of-way is
shown on the subdivision map, extending behind and to the east of Mr.
Bowen= s Lot 11, giving access to other lots owned by Ms. Price, but
not giving access either to Mr. Bowen= s Lot 10 or to Ms. Price= s Lot
9. The access of the right-of-way onto Pond Hill Road is down a
moderately steep slope; water sometimes drains down the right-of-
way onto Pond Hill Road, causing icing problems in the winter.

    On June 12, 2000, Mr. Bowen filed a A unified permit@ application
form and sketch plan with the Zoning Administrator to build a 74' x 42'
3-bedroom house on Lot 10, using a septic system with a leach field in
the easterly portion of Lot 11. Because it is for a single family
residence, site plan approval is not required. The application form
shows the sewage disposal system as having been approved by the
health officer on August 28, 2000. Under the section for A Highway
Right of Way@ the space for A Utilities Under Road@ was filled in as A
Existing.@ Existing electric utilities are installed under the town road,
but are not yet brought in along the private right-of-way of the
subdivision.

    The house design incorporates a 24' x 30' garage at an angle from
the main part of the house. The house is proposed to be 34 feet in
height. Lot 10 also contains a 2-story barn structure which is proposed
as 35' in height. The barn is located to the north and west of the
proposed house on Lot 10. Lot 10 also contains a small shed which
may be removed once the barn structure is completed. Mr. Bowen has
also constructed a pond on his property. As this application does not
require site plan approval, issues regarding the contours of the
property do not arise in this application.

    The house is proposed to be served by a septic system designed to
be located on Lot 11 and with a capacity sufficient to serve two three-
bedroom houses, one on Lot 10 and one on Lot 11. The system= s
engineering plans have been approved to operate as a non-electric
syphon system. The locations of the piping and leach field are shown
on Exhibit D and have been approved by the Health Officer as meeting
the Town= s sewage ordinances as required by Section 720 of the
Zoning Ordinance.
    The sketch plan diagram does not depict the exact setbacks;
rather, it indicates that both side setbacks and the rear setback exceed
100 feet, and that the front setback exceeds 250 feet. It does not
show the location of the barn structure, nor the setbacks to the barn
structure. The required minimum lot area in the district is 2 acres, the
required front and rear setbacks are 50 feet, and the required side
yard setbacks are 30 feet. The height limitation is 35 feet or two
stories for principal buildings, and 20 feet for accessory buildings.

    Section 240.3 of the Zoning Ordinance allows more than one
principal building per lot. Accordingly, this zoning permit may be
granted despite the fact that the barn structure also is 35 feet in
height, but only if both structures are treated as principal structures
and meet the standards of Section 240.3 that the minimum lot
requirements must be met for each building, and that the distance
between the buildings must be twice the minimum required setback.
The minimum lot requirements are met for both buildings. As to the
setbacks, from the site visit and from the evidence submitted in
Docket Nos. 202-10-99 Vtec and 31-2-01 Vtec, it appears that the
setbacks would be likely to be met, but the required measurements
are not in evidence.

    The private right-of-way is deeded as fifty feet in width, although
the traveled way at the present time is approximately a single lane to
a lane-and-a-half wide. It is steep in the first section up from Pond Hill
Road, levels out, and then goes up steeply again, then going
moderately downhill to the Bowen driveway onto Lot 10, and then
uphill again to Ms. Price= s Lot 9 and other Price lots. It was installed
as a gravel road but has washed out in places. Ms. Price and Mr.
Bowen have disagreed as to its maintenance in recent years. Mr.
Bowen has brought heavy equipment up to his lots over the road, to
remove trees from and construct a pond on his property, and to
construct the barn structure at issue in the other two cases. The
transport of heavy equipment over the right-of-way has damaged it
from time to time.

    The parties= dispute as to the maintenance of the private right-of-
way is beyond the scope of this appeal, as this appeal only relates to
whether the application to construct a residence on Lot 10, with a
septic system on Lot 11 should be approved as a permitted use. The
maintenance of the right-of-way must be addressed either in a private
lawsuit among the owners in the subdivision, or in an action to amend
or enforce any subdivision permit or Act 250 permit that may apply to
the Billow subdivision as a whole.
    With regard to Questions 1 through 6 of the Statement of
Questions, based upon the findings above, the application to construct
a house, including the attached garage, on Lot 10 meets all of the
general regulation requirements of the RR-2A district. It is probable
that it meets the requirements of Section 240.3 for more than one
principal building on the 10.1-acre lot, but verification of the setbacks
between the two buildings must be made a condition of any permit.
Nothing in the zoning regulations prohibits a proposed house from
incorporating an attached or built-in garage; such a garage is not
considered an accessory building, but must meet the required
regulations for the house itself. Nothing in the Zoning Regulations
requires utilities to be installed prior to the application for a zoning
permit; in fact, nothing in the Zoning Regulations appears to require a
house to be served by electricity at all. The septic system was
approved as required by the Zoning Ordinance and does not depend
on the provision of electricity to the property.

     Questions 7, 8, 9, 12, 13, 14, 15 and 16 of the Statement of
Questions raise issues that might be relevant to an application for a
subdivision permit, an Act 250 permit, a conditional use application or
site plan approval, or the interpretation of the parties= respective
property rights. They are, however, beyond the scope of an application
for a zoning permit for a permitted use, and will not be further
addressed, except to note that all uses within the Town must meet and
continue to meet the performance standards of Section 760 of the
Zoning Ordinance.

   Question 11 of the Statement of Questions is addressed in Section
810.8 of the Zoning Ordinance. The work must commence within
twelve months of the issuance of a final zoning permit and be
completed within two years, with certain extension provisions in that
section.

   Questions 10 and 17 of the Statement of Questions is addressed by
the scope of the application. It does not request and Mr. Bowen is not
authorized by any permit to transport, operate, store or maintain
heavy construction equipment at the property except in connection
with the site work and construction approved for the property and the
uses approved for the property. Those uses, to date, are agriculture
and forestry with regard to the barn structure that was the subject of
Docket Nos. 202-10-99 Vtec and 31-2-01 Vtec, and residential use
with regard to the house with attached garage, all on Lot 10, and a
septic system on Lot 11.
    Based on the foregoing, it is hereby ORDERED and ADJUDGED in
Docket No. 33-2-01 Vtec that a zoning permit is GRANTED for the
proposed house, incorporating an attached garage, using the septic
system proposed and approved to be located on Lot 11. This approval
is only for the residential use of the property, and is specifically
subject to Mr Bowen= s submittal to the Zoning Administrator, with a
copy to the parties and to this Court, of a sketch plan demonstrating
the compliance of the setbacks from the house location compared with
the setbacks of the barn structure, under Section 240.3 of the Zoning
Regulations.

   Done at Barre, Vermont, this 14th day of January, 2002.



___________________
Merideth Wright
Environmental Judge
