                                STATE OF VERMONT

SUPERIOR COURT                                          ENVIRONMENTAL DIVISION

                                }
In re Musto Construction Permit }        Docket No. 132-7-09 Vtec
       (Appeal of Hignite)      }
                                }


                                  Decision and Order

      Appellant Carolyn K. Hignite appealed from a decision of the Development

Review Board (DRB) of the Town of Castleton, granting approval to Appellee-

Applicants David and Martha Musto to construct a year-round residence. Appellant is

represented by Mark L. Sperry, Esq.; Appellee-Applicants (Applicants) are represented

by Gary R. Kupferer, Esq. and Timothy Budd, Esq.; and Interested Party Allan Keyes,

Esq., an attorney licensed in Vermont, entered an appearance representing himself. The

Town of Castleton did not enter an appearance in this matter.

      An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. A site visit was taken at the conclusion of the hearing with the

parties and their representatives, including viewing the parties’ properties and the

vicinity from the lake by boat. Upon consideration of the evidence as illustrated by the

site visit, and of the written memoranda and requests for findings filed by the parties,

the Court finds and concludes as follows.



Findings Relating to Project Proposal

      Applicants own a 0.38-acre (approximately 16,553 square feet) existing small lot

on the easterly shore of Lake Bomoseen in the Residential 40,000 (R-40) zoning district

of the Town of Castleton. The lot approximates a long, narrow triangle in shape, with a

westerly boundary of 98.4 feet along the lake shore, a northerly boundary of 244.64 feet,


                                            1
an easterly boundary of 25 feet on the truncated end of the triangle, and a southerly

boundary of 280 feet.

         Applicants’ lot contains an existing one-story single-family house, approximately

18 feet in height, in use as a seasonal residence. The Zoning Ordinance does not

distinguish between seasonal and year-round single-family residences. In the R-40

zoning district, a single-family residence is a permitted use. The lot slopes down from

the east towards the elevation of the lake to the west. Three existing decks, with their

associated stairways and landings, are located to the west of the existing house. Two of

these decks, eight feet in width, labeled as the “upper” decks on Diagram 1, are

attached to the house at the level of the ground floor or living area of the house. A set

of stairs leads down from each of these decks to a landing located between the decks in

the center of the westerly side of the house. From the landing, an additional short flight

of stairs leads down to another deck at ground level on the lake side of the existing

house.

         The dimensional requirements applicable to a lot containing a residential use in

the R-40 zoning district, found in Article V of the Zoning Ordinance, are a minimum lot

size of 40,000 square feet, a maximum lot coverage of 15%, a minimum lot frontage of

150 feet, a minimum lot depth of 200 feet, a maximum building height of 38 feet, a front

setback of 50 feet, a side setback of 30 feet, and a rear setback of 50 feet.

         The Zoning Ordinance does not contain a shoreline overlay zoning district or any

setback requirements specifically applicable to the distance from a building to the lake.

However, whether the lake is considered to be the property’s front or rear property line,

the required setback on the property’s westerly or lake side is 50 feet. For the sake of

clarity, this decision will refer to it as the shoreline setback rather than characterizing it

as the front or the rear setback.

         Applicants’ lot is nonconforming with the zoning requirements as to lot size, lot

frontage, and lot depth. However, it meets the minimum area, frontage, and width or
                                               2
depth requirements for development as an existing small lot under §§ 1001 and 1002 of

the Zoning Ordinance and the equivalent statutory sections. 24 V.S.A. § 4412(2).

       Setbacks are measured from the relevant boundary line to nearest wall, porch, or

deck of the building or structure, whether enclosed or unenclosed. Article IX of the

Zoning Ordinance, “Setback.” The existing house on Applicants’ lot is nonconforming

with the zoning requirements as to both side setbacks and as to the setback to the lake.1

Diagram 1 shows the outline of the existing one-story house and existing decks, and

shows the portions of these structures that extend into and are therefore nonconforming

with each of the three setbacks. The area of the existing house that extends into the

southerly side setback is labeled as Area 1 on Diagram 1. The area of the existing house

that extends into the northerly side setback is labeled as Area 2 on Diagram 1. All of the

existing decks, landings, and stairs located on the westerly side of the existing house are

located within the shoreline setback. A small portion of the south upper deck, shown as

shaded on Diagram 1, is located within the south side setback as well as within the

shoreline setback.

       Applicants propose to demolish the existing one-story camp building and build a

larger, year-round house on the lot. The house is proposed to consist of three stories: a

ground or first floor at the elevation of the existing house, but larger in footprint; a new

walk-out basement level, below the elevation of the existing single-story house; and a

new upper or second floor above the elevation of the existing single-story house, and

larger in footprint. The height of the proposed house, measured from the floor of the

walk-out basement to the peak of the roof, is proposed to be 35 feet.

       As shown on Diagram 2, several areas of the proposed house will occupy areas

of the setbacks that are currently open and unoccupied by the existing nonconforming

building. The area of the proposed house that extends into a currently clear portion of

1  The setback to the lake should actually be depicted as irregular, paralleling the
shoreline, as it is measured at 50 feet from the shoreline.
                                             3
the southerly side setback is labeled as Area A on Diagram 2. The area of the proposed

house that extends into a currently clear portion of the northerly side setback is labeled

as Area B on Diagram 2. The new areas of the proposed house that are proposed to

occupy currently clear areas of the side setbacks do not extend any closer to the side

boundary lines than the farthest extent of the existing nonconforming house.

       In addition, a new ten-foot-wide deck is proposed to extend across the westerly

side of the proposed house, at the level of the ground floor of the proposed house, that

is, above the level of the walk-out basement. Areas C and D on Diagram 2 show the

currently clear areas of the shoreline setback that will be occupied by the new deck.

       Appellant Carolyn Hignite and her brother, Interested Person Allan Keyes,

together with another brother, own the lot directly to the south of Applicants’ lot. The

Hignite-Keyes lot has been in their family since 1948. It contains a one-story house over

a crawl space, in use as a seasonal residence, with an enclosed screened porch along its

west side overlooking the lake.           The southerly wall of the existing building on

Applicants’ property is approximately 67½ feet (on the eastern end) to 75’ feet (on the

western end) from the northerly wall of the Hignite-Keyes camp building. A number of

large mature trees on the Applicants’ lot, to the south of the existing house, are

proposed to be removed for the construction of the house or for the construction of the

septic system to serve the house. Findings and conclusions regarding whether the

proposal will have a significant adverse effect on the Hignite-Keyes property are

discussed in the text at note 6, infra.

       In 2002, Appellant Hignite had appealed to this Court a decision of the then-

Castleton Zoning Board of Adjustment (ZBA) regarding the decks and stairs

constructed by Applicants’ predecessor, Dr. Roshan Sivagnanam. That appeal, In re

Appeal of Hignite, No. 49-2-02 Vtec, was settled by the August 10, 2006 entry of a

Consent Order and Decree (Consent Order), which by its terms runs with the land and

is binding on the parties and their heirs, successors and assigns. The Consent Order
                                               4
provided that the court “shall retain jurisdiction for the purposes of enforcing” the

Consent Order. The Consent Order reversed and vacated the ZBA decision, concluding

instead that the deck construction had required a permit, and substituted the Consent

Order as a final zoning permit for the deck modification and construction permit. The

Court Order established the restricted area in the southwest portion of Applicants’ lot

as shown on Diagram 3 and required the removal of the southside deck and

replacement of a south-facing sliding glass door with a smaller window in its pre-

existing location; the work required by the Consent Order has been done. The Consent

Order prohibited the placement of additional windows or doors in the south wall of the

camp or so as to face the Hignite-Keyes camp.

       As well as establishing the restricted area, ¶ 4 of the Consent Order provides that

“no structure, including stairs, whether temporary, seasonal or permanent, shall

hereafter be constructed or placed within any other front, rear or side setback area

imposed by the then[-]applicable Castleton Zoning Bylaw.”           Paragraph 8 of the

Consent Order further provides that “any future expansion or alteration of the

footprint” or “erection of any other new structure” on Applicants’ property will be

“subject to all requirements of the Castleton Zoning Bylaw, including setbacks.”



Eligibility of Project for Consideration under § 709

       Regulatory Context

       Since 1987, the minimum setbacks applicable to the R-40 zoning district at Lake

Bomoseen have been 30 feet for the side setbacks and 50 feet for the front and rear

setbacks. Section 204(F) of the 2008 Zoning Ordinance provides in pertinent part that

“[n]o yard . . . existing at the time of passage of this Regulation shall be reduced in

dimension or area below the minimum requirements set forth herein.”

       Under the 2004 state zoning statute amendments first allowing municipalities to

provide for waivers of dimensional requirements, 24 V.S.A. § 4414(8), the 2008 Zoning
                                             5
Ordinance provides in § 1208 for waivers of dimensional requirements such as setbacks,

but limits eligibility for such waivers to small additions that do not increase the

footprint of the structure by more than 200 square feet. Section 1208(C)(4) provides

that, with a waiver, no side setback shall be reduced to less than 15 feet. Section

1208(D) allows the DRB to impose “conditions regarding the design and screening of

the addition to mitigate any impacts on neighboring properties.”

       Section 709

       The 2004 state zoning statute also redefined nonconformities, including

nonconforming structures, 24 V.S.A. § 4303(14), and required all municipalities to

address in their bylaws “how nonconformities will be addressed, including standards

for nonconforming . . . structures.” 24 V.S.A. § 4412(7). Section 4412(7)(A) authorizes

municipalities to “regulate and prohibit expansion and undue perpetuation of

nonconformities” to achieve the purposes of zoning set forth in § 4302. The statutory

language is consistent with Vermont case law recognizing that a function of zoning is to

limit the expansion and undue perpetuation of nonconformities. See In re: Kirschner

Home Constr. Application, No. 226-10-07 Vtec, slip op. at 15 (Vt. Envtl. Ct. Sept. 25,

2008) (Wright, J.) (purpose of zoning is to phase out nonconformities); In re Smith, 2006

VT 33, ¶ 10, 179 Vt. 636 (mem.) (ultimate goal of zoning is gradual elimination of

nonconforming uses); In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 9, 175 Vt. 335

(“primary goal of zoning is to gradually eliminate nonconforming uses”). Further,

§ 4412(7)(A) specifically allows municipalities to “specify the extent to which, and the

circumstances under which” a nonconformity may change or expand, or be rebuilt. 24

V.S.A. §§ 4412(7)(A)(ii), (v).

       Carrying out this statutory authorization, § 709 of the Zoning Ordinance

regulates expansion of a nonconforming structure containing a conforming use. Section

709 provides in full that:

       [n]onconforming structures with conforming use may be continued
                                           6
       indefinitely, but:
       A.     Shall not be moved, enlarged, altered, extended, reconstructed or
              restored except upon approval of the [DRB] following a public
              hearing after public notice if the [DRB] finds and concludes that:
              1.     there will be no significant adverse effect on traffic in the
                     vicinity;
              2.     there will be no significant adverse effect upon surrounding
                     property; and
              3.     there will be an increase in area not to exceed the total
                     ground area covered subject to Article V restrictions.
                     Nonconforming setbacks cannot be made more
                     nonconforming and conforming setbacks cannot be made
                     nonconforming. However, structures may be moved toward
                     the center of a lot provided the sum total of the side setbacks
                     is not decreased.*2
       B.     This section shall allow, upon approval of the [DRB], the addition
              of a second story on a non-conforming structure that is a
              conforming use. Any such second story shall not be considered an
              expansion of nonconformity.
       C.     Nothing in this section shall be deemed to prevent normal
              maintenance and repair of a non-conforming structure provided
              that such action does not increase the degree of nonconformity.3


       Appellant first argues that § 709 is not applicable at all to a proposal such as the

present one that proposes demolition of the existing nonconforming structure and

construction of a new structure that exceeds the volume occupied by the existing

structure.    However, in § 709(A) the Zoning Ordinance specifically allows a

nonconforming structure (housing a conforming use) not only to be moved, enlarged,

2  An asterisk appears in the ordinance but the ordinance contains no corresponding
note to which the asterisk might refer.
3
   Section 708 of the Zoning Ordinance also addresses maintenance of a noncomplying
structure, providing in full that “a non-complying structure may be normally
maintained and repaired provided that such action does not increase the degree of non-
compliance.”
                                             7
altered or extended, but it also authorizes such a building to be reconstructed or

restored, which incorporates the concept of demolition and reconstruction.

      Neither In re Stowe Club Highlands, 164 Vt. 272 (1995), nor this Court’s decision

in In re: Delano Variance Application, No. 161-8-07 Vtec (Vt. Envtl. Ct. Aug. 29, 2008)

(Durkin, J.), requires a contrary result. Both of those cases involved ordinances that

provided for expansion or alteration, but did not provide for reconstruction or

replacement.    By contrast, because § 709(A) includes reconstruction as well as

enlargement and extension, it covers a project that involves both the building of a

replacement structure within the footprint and volume of the existing structure and the

enlargement or expansion of the existing structure into a new volume or area.

Therefore, the demolition and building project involved in the present application does

come within the scope of § 709.



      Section 709(A)(3)

      However, the proposal before the Court fails to meet § 709(A)(3) and is therefore

not eligible for approval by the DRB or this Court.4 While certain areas of the volume of

the proposed new house—those below the ground surface, those within what would

have been a second story above the existing house, and those complying with the

setbacks—would be eligible for consideration under § 709, other areas of the volume of

the proposed new house violate § 709(A)(3).




4
 If the proposal were not precluded by § 709(A)(3), it would be necessary to proceed to
Appellant’s argument that it also violates ¶ 4 of the 2006 Consent Order, In re Appeal of
Hignite, No. 49-2-02 Vtec (Vt. Envtl. Ct. Aug 10, 2006), because the proposal places new
volumes of structure “within any . . . front, rear or side setback area.” However, any
action to enforce the 2006 Consent Order must be brought, by post-judgment motion or
otherwise, with reference to Docket No. 49-2-02 Vtec and not in the present separate
appeal.
                                           8
       Increase in Ground Area Subject to Setback Restrictions

       The proposal fails to meet the first sentence of § 709(A)(3). The plain language of

the first sentence of § 709(A)(3) requires that the ground area covered by the new

building does not increase the ground area of the existing building that was already

within the setback area (that is, the ground area subject to the Article V setback

restrictions that is already covered by the existing building). It allows the new building

to be expanded into ground area that complies with the setbacks, but not into ground

area that is within the setback restrictions of Article V of the Zoning Ordinance. This

language is awkward, because it was carried forward from several earlier versions of

the zoning ordinance, but its meaning is clear.

       This interpretation of the first sentence is supported by the statutory purpose

authorizing § 709, which is to “regulate and prohibit the expansion and undue

perpetuation of nonconformities,” not to facilitate their expansion. This is consistent

with 24 V.S.A. § 4412(7)(A) and the public interest in the elimination of nonconformities

enunciated by our Supreme Court. In re Gregoire, 170 Vt. 556, 559 (1999) (mem.) (there

is a strong public interest in the regulation and elimination of nonconforming uses and

the goal of zoning is to gradually eliminate them).

       This interpretation of the first sentence of § 709(A)(3) is also supported by an

examination of the previous versions of the zoning ordinance from which it was

derived. First, it uses the term “ground area” to distinguish the restriction from an

earlier version of the ordinance amended in 1997 that allowed a 50% increase in “floor

area” or “gross area” above that contained in the existing building. Appeal of Keough,

No. 244-11-02 Vtec, slip op. at 3 (Vt. Envtl. Ct. Oct. 8, 2003) (Wright, J.). The terms “floor

area” or “gross area” referred to the total interior space on all floors of the building, so

that a two-story building would have twice the floor area of a one-story building with




                                              9
the same footprint or ground area covered.5 Second, the most recent prior version of

the zoning ordinance had allowed a 15% increase in the ground area covered within the

restricted setback areas. The fact that the ordinance was amended to delete the 15%

increase supports the interpretation that the present version of the ordinance prohibits

the expansion of a nonconforming building into areas of the setback not already

occupied by the existing nonconforming building. See State v. Muscari, 174 Vt. 101, 106

(2002) (citing Jones v. Dept. of Employment Sec., 140 Vt. 552, 555 (1982)) (“amendment

of [ordinance] shows legislative intent to change effect of existing [ordinance]).

       Accordingly, the fact that substantial areas of the proposed building extend into

areas of the setbacks that are now clear is sufficient to deny approval of the proposal

under the first sentence of § 709(A)(3).



       Increase in Nonconformity of Nonconforming Setbacks and Making Conforming
       Setbacks Nonconforming
       Moreover, the proposal also fails to meet the second sentence of § 709(A)(3) in

that it makes nonconforming setbacks more nonconforming, and makes areas that are

now conforming to the setbacks nonconforming.             Specifically, with reference to

Diagram 2, the increases in width of the decks represented by Areas C and D make the

nonconformity with the shoreline setback more nonconforming.               The substantial

additional area of the north side setback occupied by the new house that is represented

by Area B on Diagram 2 makes a conforming segment of the north side setback

nonconforming to a height of one to two stories within that setback.             The small

additional area of the south side setback occupied by the new house that is represented

by Area A on Diagram 2 similarly makes a conforming segment of the south side


5  Appellant also argues that the proposal represent an impermissibly large expansion
of interior space within the new building; however, the present § 709 does not regulate
or limit the expansion of interior or living space.
                                            10
setback nonconforming to a height of one to two stories within that setback. Similarly, it

violates § 204(F) by reducing the side yards (setback area) in dimension and area below

the minimum requirements set forth in Article V.

      Applicants argue that the second sentence of § 709(A)(3) should instead be

interpreted to mean that they are allowed to expand the nonconforming building all

along both side property lines to as close to the north side property line as the farthest

extent of the northwest corner of the existing building and to as close to the south side

property line as the farthest extent of the southeast corner of the existing building, as

shown in Diagram 3. They also argue that the existing lakeshore setback applicable to

the decks extends towards the lake as close as the farthest extent of the existing lower

open deck, without regard to whether the lower deck is a separate structure from the

house and its attached upper decks.

      The fundamental purpose of zoning is to eliminate nonconformities.              See

Kirschner Home Constr. Application, No. 226-10-07 Vtec, slip op. at 15 (Vt. Envtl. Ct.

Sept. 25, 2008) (Wright, J.); Casella Waste Mgmt., 2003 VT 49, ¶ 9. This purpose is

echoed by 24 V.S.A. § 4412(7), which allows municipalities to regulate “expansion and

undue perpetuation of nonconformities.” A nonconforming building may be allowed

to remain and even to expand or be reconstructed as regulated, but nothing in the state

statute or court decisions suggests that a nonconforming building somehow gains an

advantage beyond that enjoyed by a conforming building, to expand the nonconformity

within the setback area along the entire property line.

      In interpreting zoning ordinances, the Court applies the familiar rules of

statutory construction, first construing words according to their plain meaning, and

“giving effect to the whole and every part of the ordinance.” In re Champlain Coll.

Maple St. Dormitory, 2009 VT 55, ¶ 13, 186 Vt. 313 (quoting Stowe Club Highlands, 164

Vt. at 279). That is, the Court must presume that all language in the ordinance was

inserted for a purpose and the Court cannot allow a significant part of the ordinance to
                                            11
be rendered mere surplusage. In re Miller, 2009 VT 36, ¶ 14, 185 Vt. 550. Applicants’

interpretation would render § 709(B), which allows a second-story addition to a

nonconforming structure so that the addition does not constitute the expansion of a

nonconformity, surplusage. Under Applicants’ interpretation, the second sentence of

§ 709(A)(3) would render this exemption for an additional story on a nonconforming

structure unnecessary, because an increase in height within the existing nonconforming

footprint would not bring the building any closer to the boundary line than the existing

nonconforming ground floor of the structure.

      In the absence of a plain meaning, courts attempt to discern the legislative intent

from other sources and the overall context or purpose of the ordinance. Shea v. Metcalf,

167 Vt. 494, 498 (Court resolves ambiguity by looking at the context of statutory

language, subject matter, and effects of interpretation).    Applicants argue that the

Castleton DRB has interpreted § 709(A)(3) to support their argument, and have

submitted fourteen decisions of the DRB in other cases, which, they argue, allowed

similar expansions of houses in the Lake Bomoseen area.

      Although a DRB’s consistent interpretation of a zoning ordinance “can be

determinative in a close case,” In re Korbet, 2005 VT 7, ¶ 10, 178 Vt. 459 (quoting In re

Maple Tree Place, 156 Vt. 494, 499–500 (1991)), the weight to be accorded to such an

interpretation “depends on the explanation of ‘a reason or rationale for [the DRB’s]

decision’” as well as a demonstration that the interpretation has been consistent.”

Korbet, 2005 VT 7, ¶ 10 (quoting In re Appeal of Chatelain, 164 Vt. 597, 598 (1995)). In

the present case, neither the first nor the second sentence of § 709(A)(3) is ambiguous

and both preclude the present application, as does § 204(F). Even if those sentences

were ambiguous, the context of the remainder of the ordinance, and the enabling

authority of the state statute, require that expansion of a nonconforming structure be

restricted to minimize any increase in nonconformity.

      Moreover, even if this were the sort of close case in which the DRB’s consistent
                                           12
interpretation would be useful, see Champlain Coll. Maple St. Dormitory, 2009 VT 55,

¶¶ 11–14, the DRB has not given any reason or rationale in any of the decisions, nor has

it even given any interpretation of § 709(A)(3) in any of the decisions supplied by

Applicants.6 The Court is not obligated to perpetuate an error. See Korbet, 2005 VT 7,

¶ 10.



        Appellant Hignite and Interested Person Keyes provided testimony of the

evident importance to them of maintaining the rustic camp nature of their immediate

Masons Point neighborhood and especially of Applicants’ property, even though they

recognize that many properties around the lake have converted to large year-round

residences.   Both parties presented evidence from experts and others as to the

appearance, materials, and aesthetics of the proposed house and as to the effect of the

proposal on surrounding properties. However, as the present proposal is not eligible

for consideration under § 709(A) by the DRB, and hence this Court, it would be entirely

advisory to make findings as to its effect on surrounding properties, whether any effect

on the Hignite-Keyes property would be adverse, or, if adverse, whether any adverse

effect would be significant. 7


6  To the extent that anything can be determined from comparing each decision with its
respective application materials, if these decisions have created any new
nonconformities “improperly authorized as a result of error,” as defined in 24 V.S.A.
§§ 4303(13)–(15), they have not come before this Court for interpretation of § 709.
Compare In re Barry and Clyde’s Place LLC, 2011 VT 7, ¶ 20.
7  It is would also be an impermissible advisory opinion to determine Question 6 of the
Statement of Questions as to whether the regulatory standard of “significant adverse
effect on surrounding properties” is unconstitutionally vague, except to note that the
two prior cases decided by this Court under that standard and cited by Appellant: In re
Appeals of Jackson and Appeal of McCue, Nos. 165-9-99, 43-2-00, 190-9-00,
258-12-99 Vtec (Vt. Envtl. Ct. June 8, 2001) (Wright, J.) and Keough, No. 244-11-02 Vtec
(Vt. Envtl. Ct. Oct. 8, 2003) were both issued by this Court prior to the Vermont
Supreme Court’s decision in Appeal of JAM Golf, 2008 VT 110, ¶¶ 13–14.
                                          13
      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellee-Applicants’ application is DENIED for failure to comply with § 709(A)(3)

as to the expansion of nonconforming structures, concluding this appeal.




      Done at Berlin, Vermont, this 27th day of January, 2011.




                    _________________________________________________
                          Merideth Wright
                          Environmental Judge




                                          14
