                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeals of Rowley                   }
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                                                       Docket Nos. 96-6-99 Vtec and
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                                                       128-6-02 Vtec
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                                        Decision and Order

   Appellants James and Leslie Rowley and Hope Rowley appealed from decisions of the now-
Development Review Board (DRB) of the Town of Milton, denying their applications for
conditional use approval of a zoning district boundary relocation, and an initial and a revised
variance from the septic system setback requirements of the zoning regulations.

   Appellants are represented by Marikate E. Kelley, Esq; Interested persons William and Abigail
Orr were represented by Richard C. Whittlesey, Esq. but represented themselves as of the
hearing and site visit in these matters; the Town of Milton is represented by Gregg H. Wilson,
Esq. An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge,
who also took a site visit with the parties. 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.

   Appellants own approximately 316 acres of property located on the east side of West Milton
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Road, part of which lies in the Flood Hazard zoning district , part of which lies in the
Agricultural/Rural Residential (R-5) zoning district, and part of which lies in the General Industrial
zoning district. At the time of the original application, part of the property now zoned
Agricultural/Rural Residential was zoned > light industrial/commercial= with no road frontage. A
portion of the property contains an active sand and gravel pit. A portion of the property, covering
approximately 75 acres of the property as a whole, is classified as wetlands, an area of which is
located at the base of a steep slope in excess of 45E , and includes a stream. Approximately 116
acres of the property as a whole is located in the 100-year flood plain of the Lamoille River. A
portion of the property as a whole is in use as a sand and gravel pit. To the south of the working
area of the sand and gravel pit is an area protected as an archeological site. A portion of the
property as a whole is in use for agricultural purposes. Three barns or sheds are located on the
property, used for agricultural purposes, as a maintenance shop and tool shed, and for storage of
fuel trucks in connection with Appellants= fuel oil business. At the time of trial, the income from
the sand and gravel operation alone did not pay for the mortgage and taxes on the property as a
whole.

   The property as a whole is bounded on the southeast by Interstate 89 and on the northwest by
West Milton Road. All the frontage on West Milton Road is in the wetlands or the flood plain. A
Class 4 town highway known as Munson Hill Road runs along the southerly boundary of the
property, between it and the neighboring properties of the Orrs and the Hogabooms. Munson Hill
Road is not paved, has not been exactly located on the ground and has not been maintained. It
continues southeasterly as a trail running along the southerly boundary of the Rowley property,
between it and the neighboring properties of Ross/Anderson and the Longs, to Interstate 89 (but
without access to the Interstate). The steep slope down to the stream and wetlands runs roughly
parallel to and approximately 50 to 200 feet northerly of Munson Hill Road, forming an
approximately two-acre > plateau= of land proposed for residential development in the present
appeal. A small portion of the > plateau= is also found in the southeasterly corner of Lot 4, near
Interstate 89.
    Appellants propose to subdivide the property into four lots: Lot 1 of 232 acres, Lot 2 of 25
acres, Lot 3 of 13.36 acres, and Lot 4 of 45.46 acres including the sand and gravel pit. The
approval of the subdivision is not before the Court in this appeal. The two-acre plateau is located
on the southerly end of Lots 2 and 3. Approximately 3% of Lot 3 and approximately 68% of Lot 2
is located in the Flood Hazard zoning district. A different configuration of lot lines between Lots 2,
3 and 4 could change the acreage in the two zoning districts allocated to each lot. There is also
acreage in the easterly portion of Lot 1 located in the R5 zoning district. No evidence was
presented regarding the suitability of any portion of Lot 1 for residential development.

   Appellants propose to use the plateau portion of Lots 2 and 3 for a house site on each lot, with
the two proposed septic fields to serve both houses being located on the widest portion of the
plateau on Lot 3.

   Soils in the southerly portion of Lot 4 are suitable for a septic field, which could be located
without the need for a variance, although at a greater expense because of the need for a pump
station and piping to convey the effluent to the disposal field. If such piping had to cross the
wetland, a conditional use determination would have to be obtained from the state wetlands
program for such piping.

    In order to have enough land in the R5 district to meet the density requirements for the two
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residential lots (Lots 2 and 3) as proposed in this subdivision, Appellants have applied to
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relocate the district boundary between the Flood Hazard zoning district and the Agricultural/Rural
Residential zoning district one hundred feet into the Flood Hazard district, as provided in ' 660.
Such a relocation must meet all five of the conditional use standards found in ' 500.

   In order to locate the septic systems where proposed on Lot 3, Appellants are seeking a
variance from the requirements of ' 682 of the Zoning Regulations, which requires that:

No septic system shall be closer than two hundred (200) feet from the mean high water mark of
any stream . . . . nor shall it be closer than two hundred (200) feet from the edge of a stream bank
or gully which has a slope exceeding forty-five (45) degrees.

   As proposed, the closest distance from the proposed septic system to the edge of the greater-
than-forty-five-degree slope is approximately 72 feet. In addition, the septic system would be
located approximately 77 feet from the stream at the bottom of that steep slope.

  In order to qualify for the requested variance for the septic system locations, Appellant must
meet all five requirements of ' 971 of the Zoning Regulations:

' 971.1 That there are unique physical circumstances or conditions, including irregularity,
narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property, and that the unnecessary hardship is due to such
conditions and not the circumstances or conditions generally created by the provisions of the
Zoning Regulations in the neighborhood or district in which the property is located;

' 971.2 That because of such physical circumstances or conditions, there is no possibility that the
property can be developed in strict conformity with the provisions of the Zoning Regulation and
that the authorization of a variance is therefore necessary to enable the reasonable USE of the
property;

' 971.3 That such unnecessary hardship has not been created by the appellant;
' 971.4 That the variance, if authorized, will not alter the essential character of the neighborhood
or district in which the property is located, substantially or permanently impair the appropriate
USE or development of adjacent property, reduce access to RENEWABLE ENERGY
RESOURCES, nor be detrimental to the public welfare; and

' 971.5 That the variance, if authorized, will represent the minimum variance that will afford relief
and will represent the least deviation possible from the Zoning Regulations and from the Plan.

  Appellants= proposal fails to meet at least subsections 1, 2 and 5, and therefore it fails to
qualify for a variance.

   As the > hardship= for which Appellants request the variance is Appellants= proposal to locate
two houses and two septic systems on the two-acre > plateau= near the southerly boundary of
the property, this > hardship= is entirely created by the particular configuration of lots proposed
by Appellants. It is true that there is steep topography, a stream, and wetlands located between
that plateau and the rest of the property, and it is true that the difficulties for development created
by these physical features were not created by Appellants. However, the septic systems could be
located on Lot 4 without the need for a variance.

   Moreover, a reasonable use is being made of the property as a whole, without the residential
use of the > plateau= area, even though it is not the most economically advantageous use of the
property. In addition, Appellants did not show that there were no other locations on the entire 316-
acre parcel, in particular within the easterly portion of the 232-acre Lot 1 in the R5 district, that
would be suitable for house sites or septic systems.

    Appellants= proposal to relocate the zoning boundary also fails to meet the requirements for
conditional use approval. Unlike some types of zoning districts, which designate the intended
locations for various types of development or conservation areas within a municipality, and which
could be adjusted under this provision, the Flood Hazard district is defined by a physical fact,
rather than a goal or intention of a municipal plan. That is, the Flood Hazard district is defined by
the boundary of the 100-year floodplain of the Lamoille River, and is intended to discourage
development in flood-prone areas. No amount of manipulation of the district boundary on the
official zoning map can change the physical fact of the location of the flood plain. Accordingly,
moving that boundary to place some of the actual floodplain in the R5 district would necessarily
adversely affect the environmental limitations of the area, ' 500.3, as it would thereafter allow
more development in a 100-foot-wide strip of the actual floodplain that had formerly been allowed
under the Flood Hazard District regulations. The Court cannot determine whether moving the
boundary also would adversely affect the Town= s Comprehensive Plan, as the Plan was not
submitted to the Court.

    Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants= application
for a variance from ' 682 of the Zoning Regulations is DENIED, and that Appellants= application
for conditional use approval to relocate the district boundary between the Flood Hazard zoning
district and the Agricultural/Rural Residential zoning district one hundred feet into the Flood
Hazard district, as provided in ' 660 of the Zoning Regulations, is DENIED. This decision and
order concludes both above-captioned appeals.

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   Dated at Barre, Vermont, this 27 day of January, 2003.
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Merideth Wright
Environmental Judge




                                              Footnotes

1
    The 100-year flood plain of the Lamoille River identifies the ‘Flood Hazard’ zoning district.

2
  None of the parties has addressed whether the residences could be located in this location, or
whether two residences could be located anywhere on the property, if the property or some
portion of it were designed as a PRD instead of as a conventional subdivision.

3
  Unlike some municipalities’ regulations which provide that the standards for an adjacent district
can be applied up to a certain number of feet into an adjacent district, the Milton Zoning
Regulations provide for the district boundary itself to be relocated, as a conditional use.
