Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-245

                                       JANUARY TERM, 2012

 In re Richard’s Site Plan Amendment                   }    APPEALED FROM:
 Application                                           }
                                                       }
                                                       }    Superior Court,
                                                       }    Environmental Division
                                                       }
                                                       }    DOCKET NO. 87-5-10 Vtec

                                                            Trial Judge: Merideth Wright

                          In the above-entitled cause, the Clerk will enter:

        Applicant appeals from a decision of the Superior Court, Environmental Division,
denying in part his amended application for site-plan approval of certain improvements—
including a boat ramp, stairs, retaining wall, and parking area—for his lakefront property in the
Town of Colchester. Applicant contends the court misconstrued the Town’s zoning regulations
in requiring site review and misapplied the review criteria. We affirm.

         In 2008, the Town’s development review board granted site-plan approval for the
construction of what applicant described as a “retaining wall[,] stairs [and] lake ramp to stabilize
embankment and road” for his property on Lake Champlain. The plan provided for the
construction of a concrete retaining wall or seawall on the lake side of the property to support a
steep embankment; concrete stairs extending through the seawall to replace existing wooden
stairs; and a concrete boat ramp sloping from a level, paved area at the top of the embankment
down through the wall to the beach.

       The project was constructed, but two elements differed from the plan as approved. The
concrete stairs were built about fourteen feet farther to the north than provided in the plan, and a
four-foot-wide concrete platform or landing was built part way up the slope running between the
concrete and wooden stairs, together with a new, three-foot-high, concrete, mid-slope retaining
wall about fifteen feet in length, to prevent the hillside from collapsing onto the new concrete
landing. The boat ramp and level area at the top of the ramp also differed from the original plan.
The level area was wider, increasing the usable parking area from 360 to 600 square feet, and the
boat ramp extended an additional ten feet toward the lake beyond the seawall.

       In January 2010, applicant submitted an application to the Town to amend the 2008
approved site plan to conform to the changes. The application proceeded under the zoning
ordinance in effect in 2010 when the application was submitted, and there had been significant
changes from the ordinance in effect when the 2008 permit was granted. The zoning
administrator granted the application, but an adjoining property owner appealed the
administrator’s decision to the development review board, which overruled the decision and
denied the application. Applicant then appealed to the Environmental Division. The court held
an evidentiary hearing in November 2011 and subsequently issued a written ruling. The court
concluded that the amended application was subject to review under the current zoning
regulations; that the boat ramp and stairs were an integral part of the seawall project and
functioned as retaining walls, and therefore were subject to the zoning provision requiring a
showing of need for the project; and that applicant had failed to make the requisite showing for
the changes. The court also found that the extended boat ramp would increase runoff into the
lake and adversely affect water quality. Accordingly, the court denied the amended application.1
This appeal followed.2

        Applicant contends the trial court erred in concluding that the boat ramp was subject to
site plan review under the Town’s overlay zoning ordinance. Our review is limited. “In
reviewing the environmental court’s interpretation of a local zoning ordinance, we apply a
deferential standard.” In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 7 (mem.). Thus, “we will
uphold the Environmental Court’s construction of an ordinance ‘unless it is clearly erroneous,
arbitrary or capricious.’ ” In re Champlain College Maple Street Dormitory, 2009 VT 55, ¶ 13,
186 Vt. 313 (quoting In re Stowe Club Highlands, 164 Vt. 272, 280 (1995)). Findings by the
trial court will not be set aside “unless they are clearly erroneous, and we will uphold the court’s
conclusions as long as they are reasonably supported by the findings.” In re Miller Subdivision
Final Plan, 2008 VT 74, ¶13, 184 Vt. 188. We must view the findings in the light most favorable
to the judgment, disregarding modifying evidence, and will uphold them if they are supported by
any credible evidence. Id.

        Assessed in light of these standards, we discern no basis to disturb the judgment. The
trial court applied the current ordinance, which sets forth certain standards for “the construction
of seawalls and similar structures permitted under Section 7.03C(8),” including a requirement
that the applicant “prove the required need of said seawall or similar structure.” The ordinance
defines need to include a “threat to personal property, excessive erosion, or imminent threat to
water quality” and to exclude the “[e]xpansion of personal property.” Colchester Zoning
Regulations, Supplement 21, § 7.03F(4). Section 7.03C(8) refers to “[s]eawalls, retaining walls
and similar structures detached from and not an integral part of a building.”

        The provision had been amended from an earlier version, which had referred to the
“construction of seawalls and similar structures permitted under Section 7.03C(7),” and that
latter provision referred specifically to “recreational uses” including “boat launching ramps.”
The Town’s director of planning and zoning testified, however, that “[t]he boat ramp is an
interrelated part of the seawall,” and the court found that the ramp was therefore subject to the
current requirements of § 7.03F(4) because it was functionally integral to the seawall and its own

       1
          The 2008 permit required applicant to build in conformance with the “approved plans”
unless he obtained approval to deviate. It is undisputed that applicant violated this provision and
never sought approval. The Environmental Division analyzed the case such that there was no
effect on the ability of applicant to obtain new site plan approval despite the fact that the project
was already built in violation of the earlier site plan requirements. Apparently, the
Environmental Division viewed the noncompliance as an enforcement issue that was not relevant
to a new site plan application under the new ordinance provisions. Because neither party has
contested this treatment of the noncompliance, we follow the Environmental Division’s
approach.
        2
          The court approved a slight modification to the original plan that resulted in shifting the
overall location of the boat ramp to avoid potential damage to a neighbor’s septic system. The
court also observed, with respect to the judgment, that issues of enforcement were not before the
court and that the ruling therefore did not “require or preclude any particular remedial action” by
applicant.
                                              2
side retaining walls, and “function[ed] as a retaining wall itself with respect to the hillside behind
it.” Applying the ordinance, the court found that neither the expanded area at the top of the ramp
nor the extended length at the bottom satisfied the “need” requirement of the ordinance.

        Applicant contends the court fundamentally misconstrued the ordinance, citing the
general rule that ambiguity should be construed in favor of property rights, Murphy Motor Sales,
Inc. v. First Nat’l Bank of St. Johnsbury, 122 Vt. 121, 123-24 (1960), and noting the absence of
“boat ramps” from the list of structures subject to the “need” requirement under the current
ordinance. We discern nothing arbitrary or irrational, however, in the trial court’s conclusion
that the ordinance provision, which expressly refers to seawalls “and other similar structures,”
may apply to structures such as boat ramps or stairs to the extent that they are integral to a
seawall or retaining wall. Applicant maintains that the court’s interpretation could unreasonably
expand the meaning of seawall to include every lakefront boat ramp or stairway, which are
permitted recreational uses in the Town’s shoreland zoning district, but applicant cites no
evidence to support the claim or show that this would, in fact, be the result.3

         Applicant also contends that the evidence failed to show that the top and bottom sections
of the ramp were integral to the seawall or effectively functioned as a retaining wall. As noted,
however, a Town zoning official testified that—as to this project—the ramp, stairs, platform, and
seawalls were all functionally interrelated. Furthermore, the zoning official testified, and the
trial court found, that the ten-foot expansion to the boat ramp failed the additional site-review
requirement that any shore-based facility not “adversely affect water quality.” Although
applicant contends that this testimony was struck, the record shows that the zoning director
testified without objection that the extended ramp did “adversely affect water quality, because it
extends the ramp closer to the lake discharging the water closer to the lake” and because the
extension “increased [the] impervious area.” Nor did the court err in finding that applicant had
failed to demonstrate a sufficient “need” under the ordinance for altering the ramp. Although
applicant claimed that it was necessary to elevate the grade of the ramp and thereby increase its
length to accommodate a neighbor’s septic system, applicant’s engineer testified that he
considered the septic system in designing the original approved project, and the court specifically
found that it could have been constructed as originally planned and approved. Applicant has not
shown that the court’s finding was clearly erroneous. Accordingly, we find no basis to disturb
the ruling.4

       Applicant additionally claims that application of the need requirement to the boat ramp
without a showing that it serves a compelling state interest violates the constitutional right to
travel. The trial court correctly rejected the argument, noting that applicant had received
approval for the boat ramp and could have constructed it as approved in order to freely access the
Lake; that applicant could not assert an abstract right to travel on behalf of others, Nordlinger v.

       3
          Although applicant asserts that the trial court erred in excluding several photographs of
boat ramps located at other camps, they were not offered specifically to show their properties as
retaining walls, and the trial court properly excluded them as irrelevant to whether applicant’s
boat ramp complied with the approved plans and the ordinance. See Int’l Bhd. of Elec. Workers
v. Enosburg Falls Water & Light Dep’t, 148 Vt. 26, 35 (1987) (holding that proponent of
evidence excluded at trial may not assert ground for admission on appeal that was not raised
below).
        4
          Applicant also asserts that requiring a showing of need for the top level portion of the
ramp as part of an integrated seawall structure conflicts with the zoning provision allowing
parking as a permitted accessory use, but this claim was not raised below and therefore it is not
cognizable on appeal. See Long v. L’Esperance, 166 Vt. 566, 570 n.4 (1997).
                                             3
Hahn, 505 U.S. 1, 10-11 (1992); and that, in any event, applicant had made no showing that the
regulation was designed to impede or deter travel on the Lake or to penalize the exercise of that
right, Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986). Accordingly, we find no
merit to the claim.

        Finally, applicant contends that the new concrete platform and mid-slope retaining wall
satisfied the need requirement of the ordinance because they were necessary to prevent erosion
of the embankment. The trial court correctly rejected the assertion, finding that they were
constructed only to accommodate the new location of the concrete stairs and that “[i]f the
stairway had been built as approved” they would not have been required at all. Applicant asserts
that no additional review was required to relocate the stairs, or by implication the landing and
retaining wall, because the development review board’s original site-plan approval provided that
“[s]tairs require only a building permit and can be done without Board approval” so long as they
comply with other zoning requirements. This provision does not by its terms authorize
relocating the stairs without approval, and the argument is contradicted in any event by the
board’s specific requirement that the project be “constructed . . . in accordance with the
submitted plan documents” and express restriction against any “change in the proposed use or
approved plans without prior approval of the Town.” Accordingly, we find no error, and no
basis to disturb the judgment.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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