                                  STATE OF VERMONT
SUPERIOR COURT                                             ENVIRONMENTAL DIVISION
Vermont Unit                                                  Docket No. 80-6-13 Vtec


Lakehouse Pub & Grille Permit                          DECISION ON THE MERITS



       Since about 1931, there has been a restaurant and bar along the eastern shore of Lake
Bomoseen in the Town of Castleton, Vermont (“Town”). The restaurant is currently known as
the Lake House Pub and Grille and has had that or a similar name for thirty or more years. The
current owners of the land on which this restaurant is located—Susan and Frederick Field
(“Applicants” or “the Fields”)—allowed or directed certain improvements to be made to their
restaurant facility without first receiving the necessary zoning permit. When threatened with a
zoning enforcement action, the Fields applied for a permit, which was approved by the Town of
Castleton Development Review Board (“DRB”). When the DRB issued its approval, Helen and
Robert Steele (“Appellants”), who own and reside at the abutting property to the south,
appealed the permit approval to this Court.
       The parties completed trial preparations, discovery, and mediation. When their efforts
did not result in a settlement of their legal disputes, a de novo merits hearing was scheduled.
The Court completed a site visit on the morning of the trial and completed the receiving of
evidence on that same day, March 19, 2014. This matter came under advisement by the Court
when the parties completed their filing of post-trial memoranda on May 15, 2014.
       The Court apologizes to the parties for its delay in drafting this Merits Decision, caused,
in part, by administrative matters and unanticipated needs.         We do not offer these as
explanations or excuses; we regret the Court’s delay and repeat our apologies to the parties.
       Based upon the testimony, exhibits, and other evidence presented and admitted,
including that which was put into context by the site visit that the Court conducted with the
parties, the Court renders the following Findings of Fact, Conclusions of Law, and Judgment
Order that accompanies this Merits Decision.
                                               Findings of Fact
1.      In 2005, Susan and Frederick Field1 purchased the land and commercial improvements
known as the Lake House Pub & Grille (“Lake House”).
2.      A restaurant has operated at the Lake House site for eighty or more years. In fact, a
restaurant named the Lake House or a similar restaurant with a different name (“Captain
Charlie’s”) has operated on this site since 1931, well before zoning was first adopted in the
Town.
3.      The Lake House sits on a 0.42± acre parcel of land located along the westerly edge of
Vermont Route 30 and the easterly shores of Lake Bomoseen (“the Lake”); the water’s edge of
Lake Bomoseen marks the westerly boundary for this parcel. The building which hosts the Lake
House also hosts an upstairs apartment with two bedrooms.
4.      The Lake House lot is narrow and undersized, resulting in the existing building and
improvements encroaching into the setback areas along Route 30 and from the Lake. The lot
also slopes downward from Route 30 to the Lake. This slope is steep enough in places to make
it difficult to walk on the uneven ground.
5.      Across Route 30 is a separate parcel, 0.2± acres in size and also owned by Applicants;
that parcel hosts a parking area and a building with a multi-car garage on the ground level and
three apartments on the upper level.
6.      Both of Applicants’ parcels are located in the Residential 40,000 Sq. Ft. Zoning District
(“R 40 District”). Restaurants are not allowed as a permitted or conditional use in the R 40
District.
7.      Applicants’ parcels are depicted on annotated copies of the tax map for this area,
admitted at trial as Exhibits 5 and 5A. The Lake House property is identified as Parcel No. 5 on
that tax map; the garage/apartment parcel is identified as Parcel No. 4.
8.      Exhibit 5 also depicts the adjacent property to the south, owned by Helen and Robert
Steele, identified on the tax map as Parcel No. 8, and four other nearby properties, not used for


1
  Mrs. Field testified at trial that she and her husband had established an operating corporation for the Lake
House, named Inn the Field, Inc. However, because Mrs. Field, in her personal name, is listed as the “applicant” on
the permit application form that is the subject of this appeal, we regard Mr. and Mrs. Field, in their personal
names, as the applicants in this matter. See Applicants’ Exhibit A.

                                                       -2-
Lake House related purposes, owned by Applicants; those parcels are identified as Parcels No.
6, 7, 14, and 15.
9.      The parties agree and the Court finds that the Lake House was a lawful but
nonconforming use in the R 40 District and that the building in which the Lake House is
operated was a lawful but non-complying structure at the time of Applicants’ purchase in 2005.
10.     As of the date of trial, Applicants’ use and structure remained nonconforming to the
applicable regulations for the R 40 District.
11.     In 1996, the prior owners/operators of the Lake House2 received site plan approval for
certain improvements, including a new deck on the northern side of the restaurant. This site
plan approval, with attached site map, was admitted at trial as Exhibit 6. The site plan also
identifies a total of 39 spaces for vehicle parking or boat slips.3
12.     In 1999, V & R Corp., through its agent, David Rogers, submitted another municipal
permit application for further improvements to the Lake House, including the addition of a 15-
foot by 15-foot serving area deck to be attached to the side of the restaurant facing the Lake.
13.     On May 11, 1999, the Town of Castleton Zoning Board of Adjustment (“ZBA”) granted
the permit application; a copy of the ZBA’s written decision was admitted at trial as Exhibit 7.
14.     The ZBA noted that “Mr. Rogers explained that he wants to build a deck to be a
continuation of an existing deck. The ground is uneven and the deck will even out the serving
area and reduce the safety risks.” Id. It appears from the ZBA decision and trial testimony that
the ZBA used Mr. Rogers’s explanation in 1999 to justify its approval of his deck request.
15.     The ZBA conditioned its 1999 approval by stating that “[n]o musicians will be allowed to
play on the deck. A railing will be built around the deck. There will be no increase in seating. It
will remain at 68.” Id.
16.     The photo that was admitted as Exhibit 11 shows the Lake House after the deck was
constructed per the ZBA’s 1999 approval.

2
   In 1996, the Lake House owner/operator was V & R Corp., through its agent, David Rogers. We note that even
though other references to this restaurant in 1996 referred to it by a different name (Lake House Restaurant), the
site plan attached to Exhibit 6 denotes the facility as “LAKEHOUSE Pub & Grille.”
3
  Applicant’s permit application was initially denied by the Town of Castleton Zoning Administrator, who noted on
the application (Exhibit 6) that the reason for denial was “non-conforming use & site plan approval” was needed
from the ZBA.

                                                       -3-
17.     The 1999 ZBA approval represents the last permit approval for the operation of a
restaurant on the subject property prior to the approval that is the subject of this appeal.
18.     After the 1999 approval, Appellants became concerned and agitated by what they
perceived to be a material increase in the level of noise, foul language, and alcohol-fueled
activities from the Lake House, particularly by Lake House guests in the area between the
building and the Lake.
19.     Initially, Appellants were unable to resolve their differences with the owners/operators
of the Lake House. Appellants then filed a complaint against the Lake House and its owners in
what is now known as the Vermont Superior Court, Civil Division, Rutland Unit. This matter was
entitled Helen Steele, Robert Steele, and Helen Wilkins v. V & R Dockside Corp., Lake House,
Inc., Rosemary Rogers, Valerie Poremski, and David Rogers, and given Docket No. 339-6-03
Rdcv.
20.     Appellants and their neighbor, Helen Wilkins, thereafter settled their dispute with the
Lake House owners/operators (Lake House, Inc., and David Rogers) and the owners of the real
estate upon which the Lake House sits (V & R Dockside Corp., Rosemary Rogers, and Valerie
Poremski). The parties’ settlement is memorialized in a written document, titled “Settlement
Agreement,” a copy of which was admitted at this trial as Exhibit 13.
21.     By their Settlement Agreement, Appellants agreed to dismiss their civil action, with
prejudice, in return for an agreement by the defendant owners/operators of the Lake House to
implement certain noise abatement, reduction, and remediation measures at the restaurant, as
recommended by an engineer jointly hired by those parties. In consideration, the Lake House
owners/operators agreed to install an eight-foot tall “hard, dense wood” fence along the
parties’ shared boundary, reduce the odors associated with a commercial dumpster, and take
such other measures and operational limitations referenced in ¶¶ 3, 4, and 15 of the
Settlement Agreement. Id. at 1–4.
22.     The parties also noted in their Settlement Agreement that the defendant
owners/operators were the sole parties responsible for fulfilling the operational requirements
in ¶¶ 3, 4, and 15 and that the “Other Defendants,” that is, those defendants that owned the




                                                -4-
real estate upon which the restaurant was located and operated, had no operational
responsibility or control over the restaurant. Id. at 5, ¶ 19.
23.    Pursuant to the parties’ agreement, the Settlement Agreement was filed with the Town
Of Castleton Zoning Office and recorded in the Town of Castleton Land Records on April 7, 2005
at Book 130, Pages 378—388.
24.    Subsequent to the Settlement Agreement, and especially after the Fields completed
their purchase in 2005, Appellants witnessed a measurable reduction in the noise and other
interferences stemming from the restaurant operations.
25.    Later in 2005, the Fields acquired the real estate and site improvements from the prior
owners, V & R Dockside Corporation, Rosemary Rogers, and Valerie Poremski. Mrs. Field
represented at trial that they specifically did not purchase the restaurant business from the
operating corporation: Lake House, Inc.
26.    Applicants thereafter operated the Lake House and completed miscellaneous physical
improvements to the property.         They experienced a steady increase in business after
completing these improvements.
27.    At the time of Applicants’ purchase, the Lake House was operated on a seasonal basis,
whereby the Lake House was opened each May and closed in the mid- to late-fall. After their
purchase, Applicants chose to operate the restaurant on a year-round basis. Their hours of
operation are generally from 11:30 AM until closing time in the late evening.
28.    Applicants have operated the Lake House with a maximum capacity of 192 persons: 96
inside the restaurant and 96 on the decks or otherwise outside the restaurant.
29.    Sometime in 2012, Applicants or their son-in-law, Brad Burns, who was then managing
the Lake House, caused the following site improvements to be completed on the property:
       A. Existing uneven stone or concrete steps (shown in middle of the Exhibit 16 photo)
          were covered over with wooden steps of even height, as shown in the Exhibit 3
          photo.
       B. Two new decks were constructed between the restaurant and the Lake: the first is
          attached to the Lake-facing side of the restaurant building (adjacent to the deck the
          ZBA approved in 1999) and the second closer to the Lake, adjacent to an existing
          deck or dock. See Exhibit 3 photo. The first deck was partially built over an earth
          area and wooden retaining wall, but also extends past that retaining wall, such that
          the westerly side of the deck is elevated four or more feet above the ground. Id.

                                                 -5-
               This second deck covered over an uneven lawn area depicted in the Exhibit 16
               photo.4
          C. A roof that slopes downward, towards the Lake, was also constructed over the new
             deck and a pre-existing deck attached to the restaurant building.5 The roof over the
             two decks measured 42 feet in width by 19 feet, 6 inches, as measured from the
             building towards the Lake, all as depicted on hand-drawn site plan attached to
             Applicants’ permit application, a copy of which was admitted as Exhibit 1.
          D. Applicants and the witnesses they presented at trial were unable to provide the
             specific dimensions of these new decks or roofs, although their contractor, offered
             as a witness at trial, conceded during cross-examination that the new decks were in
             excess of 300 square feet.
          E. A bamboo-type half wall was also installed around the exterior of the decks
             sheltered by the roof. See Exhibit 3.
          F. On the top of the bamboo half wall, a shelf was installed for patrons to place their
             food and drink and upon which patrons could lean. See Exhibit 4 photo.
          G. The Lake House operators advertised these improvements as a “Tiki Bar” and
             encouraged customers to purchase and enjoy drinks and food on the new deck over
             which the roof was installed. See Exhibit 12 photo.
          H. Certain other miscellaneous improvements were also proposed for inside the Lake
             House, including half doors, one or more “pass-throughs” for bar service, and a new
             ladder or steps from the basement to the middle floor.
30.       Applicants or their restaurant manager completed all of the improvements listed above
in ¶ 29 without having first applied for or received a zoning permit authorizing these
improvements.
31.       The deck attached to the restaurant and the roof over it reduces the setback from Lake
Bomoseen from 28 feet to 9 feet. One or both of the additional new decks are wholly within
the setback area from the Lake.6
32.       Prior to these improvements, the existing structures on the Lake House property
covered just over 10% of the lot area. After these newest improvements, the structure
coverage increased to 13.9% of the total lot.


4
  Appellants’ home is shown in the background of the Exhibit 16 photo. At the time of this photo (prior to 2005),
Applicants or their predecessors had not yet installed the wooden fence between the properties.
5
    This pre-existing deck was constructed after the 1999 ZBA approval.
6
  The required rear yard setback in the R 40 District is 50 feet; that setback is discussed in more detail in our
Discussion section, below.

                                                         -6-
33.     When these un-permitted improvements were brought to the attention of the Town of
Castleton Zoning Administrator, he confronted the Lake House manager and advised that if he
did not apply for and receive a zoning permit for all of these improvements, the Administrator
would issue a Notice of Alleged Zoning Violation (“NOV”) against the Lake House.
34.     Applicants thereafter submitted an application to receive an after-the-fact zoning
permit to authorize essentially all of their completed improvements. Their application was
admitted at trial as Exhibit 1.
35.     When the DRB approved the pending application, with the exception of the roof over
the decks, neighboring Appellants filed an appeal with this Court. Applicants filed a cross-
appeal that presented five legal issues for the Court to consider, including that their proposed
deck roof should be allowed. During the trial, Applicants advised that they no longer wished to
assert that the already-built roof over the attached decks should be allowed. Applicants
reported to the Court that they have dismantled and removed the deck roof.
36.     At trial, Applicants suggested conditions in support of their pending application,
including the following:
        A. Applicants agreed to remove the roof over the attached decks and to not seek a
           permit to replace it.7
        B. Applicants specifically requested authorization to maintain and use the second deck
           along the Lake, adjacent to the existing deck or dock.
        C. Applicants also requested an increase in capacity, based upon identified parking and
           dock slip spaces, to 192 persons who would occupy seats or standing room areas
           inside the restaurant, on the new decks, and the existing decks and docks.
           Applicants’ capacity calculations are based upon existing parking spaces along the
           Lake House lot, the garage/apartment lot, a parking area at a public beach to the
           north, and the boat docking slips along eight docks of up to 40 feet in length that
           Applicant seasonally maintains in front of the Lake House.
Applicants’ suggested conditions are based upon the conditions that the DRB8 placed upon its
approval. See Exhibit A at 7.




7
  The Court has been advised that since this matter came under advisement, Applicants have, in fact, completed
the removal of the roof.
8
  Sometime prior to 2012, the DRB replaced the ZBA as the municipal panel empowered to hear municipal land
use applications and appeals.

                                                     -7-
                                           Discussion
       This appeal concerns questions posed by both parties: Appellants, who were the first to
appeal from the DRB’s decision to conditionally approved most of Applicants’ after-the-fact
permit requests, and Applicants, who filed a cross-appeal. We will endeavor to address all of
the legal issues presented by the parties in their respective Statements of Questions. We begin
our analysis with facts and legal determinations that the parties do not dispute: Applicants seek
to expand their restaurant business in a zoning district that does not presently allow for such a
use and are seeking authority for as-built expansions to the building in which they operate their
restaurant, even though their building, prior to these expansions, did not conform to the
applicable setback and lot coverage limitations for that zoning district. These facts ultimately
represent the major factors in our determinations on the pending application.
I.     Standard of Review
       First, we summarize the context within which we must evaluate lawful pre-existing non-
conforming uses and structures. The entirety of our Municipal and Regional Planning and
Development Act (codified at Chapter 117 of Title 24 of the Vermont Statutes Annotated) is
premised upon the general purpose of allowing municipalities and other subdivisions of the
State to “encourage the appropriate development of all lands in this State.”           24 V.S.A.
§ 4302(a). Municipalities are empowered to establish zoning and other land use regulations
that those municipalities determine are appropriate for their communities. 24 V.S.A. Chapter
117. But that authority must respect the pre-existing vested rights that landowners enjoy to
continue to use their land, even when subsequently-enacted zoning regulations no longer
permit such uses. Such vested rights have led to an acknowledgement of the legality to
continue pre-existing nonconforming uses and non-complying structures.
       To balance the importance of allowing communities to govern land uses, while
respecting the vested rights of land owners, municipalities are authorized to “regulate and
prohibit expansion and undue perpetuation of nonconformities.” 24 V.S.A. § 4412(7)(A). Here,
the Town has chosen to exercise such powers by enacting provisions within the Town of
Castleton Zoning Ordinance (“Ordinance”) relating to how the enactment of a land use
regulation may impact upon pre-existing uses and structures. See Ordinance § 701 (“Nothing


                                               -8-
contained in these Regulations shall require any change in a non-complying structure or a
nonconforming use which existed, or was substantially completed by, prior to the adoption of
this bylaw and conforms to the regulation then in effect.”). While, as a general rule, preexisting
nonconforming uses or structures must be allowed to continue, “[o]ne of the primary goals of
zoning is to gradually eliminate nonconforming uses because ‘they are inconsistent with the
purpose of developing use-consistent areas in communities.’” In re Casella Waste Mgmt., Inc.,
2003 VT 49, ¶ 9, 175 Vt. 335 (quoting In re Gregoire, 170 Vt. 556, 558 (1999) (mem.)). This
recognizes that the “prime purpose behind zoning is to bring about the orderly physical
development of a community by confining particular uses to defined areas.” Gregoire, 170 Vt.
at 558 (citing Vermont Brick & Block, Inc. v Village of Essex Junction, 135 Vt. 481, 483 (1977)).
Here the Town has elected not to allow restaurant uses in the R 40 District and has required
that buildings be setback a certain distance from roads, property boundaries, and the Lake. The
purpose of doing so is to gradually eliminate uses and structures that do not comply with these
town-based legislative decisions.
II.    Appellants’ Statement of Questions
       A. Appellants’ Question 1
       By their Question 1, Appellants ask, “Should the application be denied as constituting an
impermissible expansion of non-conforming use?”               Pursuant to Ordinance § 701,
nonconforming uses that existed prior to the adoption of the current regulations are allowed to
continue if they remain in compliance with the regulations then in effect. Likewise, the
expansion of such uses is permissible but only upon approval by the DRB and a finding that the
use otherwise complies with all provisions of the Ordinance except type of use. Ordinance
§ 705(A).
       Here, the change in use is reflected by an increase in capacity from 68 to 192 persons
(96 inside and 96 outside). The undisputed evidence concerning the Lake House reveals that
the last permit authorizing improvements was the 1999 permit issued by the ZBA, which
specifically limited the restaurant’s capacity to 68 persons. See Exhibit 7 at 2. Because this
permit condition was never appealed, it became a final condition governing the operation of
the Lake House. 24 V.S.A. §§ 4472(d) (“Upon the failure of any interested person to appeal to


                                               -9-
an appropriate municipal panel under section 4465 of this title, all interested persons affected
shall be bound by that decision . . . and shall not thereafter contest, either directly or indirectly,
the decision . . . .”). The fact that Applicants later operated the Lake House to accommodate up
to 192 guests does not impact our analysis here, because neither these Applicants nor their
predecessors in title sought or received a permit for that expansion. Therefore although this
use was nonconforming, it was not permitted nor was it permissible under the regulations, and
our consideration of prior nonconforming uses is limited to only those that lawfully existed at
some prior time, per the directives codified in Ordinance § 701. As noted below in section II.C,
the application before the Court did not seek DRB approval for an increase in the capacity of
the Lake House and therefore we do not consider whether, absent the other alterations at issue
in this appeal, such capacity could be increased pursuant to Ordinance § 705.
       Because the specific expansions applied for in the application before the Court do not
comply with the Ordinance provisions other than type of use, as discussed in greater detail
below, we answer Appellants first Question in their Statement of Questions by stating that
Applicants’ pending application must be DENIED, as it constitutes an unlawful expansion of a
nonconforming use. That determination would normally end our analysis, but to aid the
parties, we continue our evaluation of the remaining Questions posed in each Statement of
Questions.
       B. Appellants’ Question 2
       By their Question 2, Appellants ask whether the pending application evidences “an
impermissible expansion of a non-conforming structure” and must therefore be denied. For
the reasons stated below, we agree that Applicants’ proposed improvements to the Lake House
constitute an impermissible expansion of a non-complying structure according to the applicable
Ordinance provisions.
       Applicants do not propose to expand the building itself, but rather propose to increase
the number and square footage of the decks attached or adjacent to the building. In some
instances, the addition of a deck is exempt from the general requirement to obtain a zoning
permit. Specifically, Ordinance § 1021(B) exempts decks that (1) do not extend more than ten
feet from “a dwelling structure’s sidewall;” (2) is “not closer than ten (10) feet to a property


                                                -10-
line, and (3) the square footage of previously constructed and proposed decks will not exceed
300 square feet.” Id. The proposed decks are not attached to a “dwelling structure” and
extend more than ten feet from the commercial restaurant structure; each of the two proposed
decks are less than ten feet from the water’s edge of Lake Bomoseen, which marks Applicants’
westerly boundary line; and the two pre-existing decks, when combined with either or both of
the proposed new decks, far exceed 300 square feet. Thus, the proposed new decks fail to
conform to each of the three subsections of Ordinance § 1021.
       As the failure to satisfy any one of these three subsections voids the permit exemption,
we conclude that Applicants are not entitled to a permit exemption and must conform to all
applicable Ordinance provisions, including setback requirements. Structures within the R 40
District must respect a fifty-foot setback from the front and rear boundary lines when
proposing new development. Ordinance Article V. The definition for “structures” includes
“decks, and other building features.” Ordinance Article IX. Furthermore, “setback” is defined
as “[t]he distance from a front lot line, side lot line, or rear lot line to a building or other
structure, measured to its nearest wall, porch or deck whether enclosed or unenclosed, but not
to steps or normal roof overhand.” Id. (emphasis added).
       The lawfully preexisting nonconforming structure is 29 feet from the westerly boundary
line. The deck that Applicants recently attached to the restaurant structure will extend toward
Lake Bomoseen such that the setback is reduced to nine feet. The deck, which is even closer to
the Lake and adjacent to an existing deck or dock, has been constructed wholly within the fifty-
foot setback. These decks violate the setback requirements for the R 40 District and therefore
evidence an unlawful expansion of a non-complying structure and cannot be approved.
Ordinance § 701. For all these reasons, we answer Appellants’ Question 2 by concluding that
the proposed decks constitute an impermissible expansion of a non-complying structure and
must therefore be DENIED.
       C. Appellants Question 3
       We decline to answer Appellants’ Question 3, as it seeks a determination that is not
presented by the pending application. Specifically, Appellants seeks a legal determination that
Applicants’ proposed expansion does not provide for sufficient parking.        While the DRB


                                             -11-
determined that Applicants may be allowed to host up to 192 people, we see no specific
request in the pending application that seeks an increase in the capacity of 68 persons that was
established by the ZBA in 1999. Because we have no evidence before us that the application or
other pre-hearing notice provided even a hint that a request would be made to increase the
capacity from that established in 1999, we believe it was improper for the DRB to consider such
a request, and it would be improper for us to consider such a request on appeal. See In re
Torres, 154 Vt. 233, 236 (1990) (noting that “whatever the [municipal panel] might have done
with an application properly before it, the superior court may also do” but disallowing
consideration of something that was not applied for because doing so would violate the
requirement to provide public notice of the application that is before the municipal panel). If
Applicants desire to increase the capacity of the Lake House beyond that which was permitted
in 1999 they must apply and provide public notice for such an application pursuant to
Ordinance § 705 which governs applications to expand a nonconforming use.
       D. Appellants’ Question 4
       Applicants, by their Question 4, ask whether the pending application should be denied
due to the project’s “failure to meet setback, coverage and/or dimensional requirements.” We
have already considered the setback shortcomings of the proposed decks and concluded that
those shortcomings require the Court to deny the application. We repeat that conclusion here.
As to lot coverage, non-residential development in the R 40 District is limited to coverage of no
more than 10% of the total lot size.       Ordinance Art. V.    The pre-existing structures on
Applicants’ lot exceeded 10% of the lot area; with these expansions, 13.9% of the lot is now
covered with structures of some kind. The addition of the covered deck constituted an increase
in lot coverage and therefore another unlawful expansion of the non-complying structure on
Applicants’ lot.   While, “[u]nroofed decks and porches . . . shall not be considered
improvements for the purpose of calculating lot coverage,” see Ordinance Article IX, at the time
of this appeal the deck was covered and constituted an increased violation of the lot coverage
maximum. As we have concluded that the permit applications for the expansions must be
denied for other reasons we need not answer the question of whether now that the deck is
uncovered it is in violation of the Ordinance lot coverage requirements.


                                              -12-
       E. Appellants’ Question 5
       We next turn to Appellants’ final Question. Question 5 asserts an independent basis for
denial of the pending application: that the Ordinance requires an applicant to submit “a
covenant, restriction, condition, bylaw or state or local law or regulation which limits the
occupancy or use” of the proposed structure “within 15 days of the issuance of the permit;
otherwise the permit shall be void.”      Ordinance § 1022.    Trial testimony revealed that
Applicants’ predecessors in title to the real estate upon which the Lake House has and
continues to operate entered into a Settlement Agreement with those real estate owners and
the then Lake House operators. Because this Agreement was recorded in the Land Records and
clearly identifies this land and the commercial development upon it, we understand that the
applicable conveyances made in that Agreement run with the land and are enforceable by and
against the successors in interest.
       The Settlement Agreement was admitted into evidence at trial as Exhibit 13. To the
extent that Ordinance § 1022 governs such a document, we believe that the submission at trial
satisfied § 1022.
       We were not presented with an additional citation to an Ordinance provision in support
of Appellants’ Question 5, but we believe that the Settlement Agreement is not the type of
restrictive document that § 1022 envisions. Often times, developers will propose rights of way,
bylaws, covenants, or other such restrictive measures on large developments, especially multi-
lot developments. In anticipation of such developments, municipal regulations, such as here,
will require disclosure of the covenants and restrictions that a developer proposes for their
project. We understand that Ordinance § 1022 envisions those types of proposed covenants
and restrictions being disclosed and made part of a development’s approval; we do not yet
have experience with this type of regulatory provision being interpreted as referring to
settlement agreements between neighbors or other private parties. While we regret the
suggestion that the parties here engage in further litigation, we conclude that this Settlement
Agreement is not applicable to Ordinance § 1022 and, should any party or successor in interest
to this Agreement wish to enforce it, they must do so through a separate action and not
through enforcement of the zoning Ordinance.


                                             -13-
       We therefore answer Appellants’ Question 5 in the negative and conclude that
Applicants’ failure to file this Settlement Agreement with their application does not provide an
independent basis for denying their application. We next analyze Applicants’ Statement of
Questions.
III.   Applicants’ Statement of Questions
       By their Question 1, Applicants suggest that they are entitled to a conditional use permit
for the reason that their improvements “do not expand the density of the existing structure in
this non-conforming, pre-existing structure.” We remain unclear as to what “density” this
Question references. To the extent it was intended to reflect the density in terms of lot
coverage, we answer in the negative, and conclude, as above, that the additional decks increase
the non-conformity of this structure, that that increase is unlawful, and that it provides an
independent basis for denial of the pending application.
       Applicants’ Question 2 seeks approval of the roof they constructed over their rear decks.
However, Applicants at trial withdrew their request to receive permit authority for that roof
and pledged to remove it. The Court has been advised that Applicants have completed that
removal work. In any event, we conclude that Applicants’ Question 2 is MOOT.
       Applicants, by their Question 3, appear to suggest that because the lot coverage
maximums for the R 40 District were once more than 10% (Applicants’ attorney suggested 15%
in his questioning of a witness), Applicants should be allowed to expand their lot coverage to up
to that greater percentage. Applicants support this assertion by referencing the installation of
the Castleton sewer line to the subject property.
       We know of no legal foundation for allowing Applicants to cover a greater percentage of
their lot, either because of their pre-existing non-conformities or because of the installation of
the municipal sewer line. There is no such provision in the Ordinance. Any development in the
R 40 District must conform to the established lot coverage maximum of 10% for non-residential
uses. The Ordinance does provide for a smaller minimum lot size for uses served by municipal
sewer but does not provide for a different lot coverage maximum. Ordinance Art. V. As the lot
coverage may not be increased in violation of the current Ordinance lot coverage requirements,
regardless of sewer connections, we answer Applicants’ Question 3 in the negative.


                                              -14-
       By their Question 4, Applicants ask whether “the bylaws provide authority to limit the
total number of persons involved in the business of the restaurant (including patrons and staff)
and of parking spaces, and if so, what conditions should apply.”           Our analysis here is
constrained by the same concerns expressed above in response to Appellants’ Question 5: we
are not aware that the application and public notice provide any warning of a request to
increase the permitted capacity at the Lake House. What is certain, however, is that the Lake
House was last permitted for a capacity of 68 persons; that this restaurant operates as a
nonconforming use in a non-complying structure; and that for those reasons, expansion of the
size of the structure or the volume of the use is unlawful in this zoning district pursuant to
Ordinance §§ 701 and 705.
       Applicants’ Question 5 appears to challenge the authority of the Town, via the
Ordinance, to “regulat[e] access to the restaurant from the waterfront or the use of the docks
or waterfront, and if so, what conditions should apply to this use.” Applicants’ regulatory
concerns appear misplaced; no party to this appeal, including the Town, proposed a condition
that would restrict Applicants or their guests from using the waterfront or their docks. To the
extent that Applicants are inferring that dock slips must be used as parking spaces, our
response to that query is “no.” The Ordinance defines “parking space” as a “defined space,
which is at least 20 feet long and nine (9) feet wide, used for the parking of one motor vehicle,
with practical access to the road or right of way, and graveled (or paved) sufficiently to provide
year round use.” Ordinance Art. IX. The Ordinance does not contain any provision that defines
or analogizes a dock slip on a lake or water course with a parking space. We decline to create
such an analogy here, particularly where the application presented provided no notice of such a
request. Applicants’ decision to expand a restaurant that no longer conforms to the applicable
regulations, in a structure that exceeds the setback and lot coverage maximums, are the sole
reasons for a limitation on their use and operation.
       We respond to Applicants’ Question 6 in a similar fashion; this Question asks whether
“the bylaws authorize regulating where food or beverages may be sold, served, or consumed,
and if so, what conditions should apply to such use.” To the extent that this Question is
directed to Applicants’ request to be authorized to maintain and use their new decks, we have


                                              -15-
already concluded that those decks represent violations of the R 40 District setback provisions
and represent impermissible expansions of a non-complying structure and of a nonconforming
use. For those reasons, Applicants’ permit request as to the new decks must be denied. We
are unaware of any question in the application regarding a change in where sales, service, or
consumption may occur, beyond what may have been authorized by the 1999 permit and the
lawful, pre-existing uses and structures. Because that legal issue was not presented by the
application, we decline to consider it here.
       Finally, we address Appellants’ Question 7, which asks “[w]hether a denial of a permit
condition authori[zing] food and spirits to be served on the North deck constitutes a permitted
right of Applicants, given that it was permitted in 1996 and has been used continuously since
1996 for food and beverage service.” It appears that this Question was prompted, not by the
pending application, but by one of the conditions specifically imposed by the DRB: Condition #6
directed that the “deck at road level, north of the building shall be used as originally permitted
and shall not be used to serve food or beverage.” Had Applicants not challenged that Condition
on appeal, it would have become final and enforceable against them. 24 V.S.A. § 4472(d).
However, once that challenge is in place, we consider the pending application anew. 10 V.S.A.
§ 8504(h).
       Applicants appear to agree with the DRB on this issue in at least one regard: whether
they are authorized to continue to serve food and beverage on their north deck is governed by
the permit that the ZBA issued in 1996, authorizing the construction and use of that deck. The
import of that permit, however, is not a legal issue presented to us by the pending application.
To the extent that the legal issue was properly before the DRB, it appears that the DRB was
exercising its authority to impose conditions upon its authorization of an expansion of a non-
complying structure, pursuant to Ordinance § 709(D). The Court is unsure how such a condition
could be imposed, as § 709(D) only allows conditions to be imposed upon an authorization to
expand a non-complying structure “with conforming use.”           Ordinance § 709(D)(emphasis
added).




                                               -16-
       We have reached a different set of legal conclusions than the DRB and have denied the
pending application. Because of our opposite conclusion, we specifically STRIKE ALL conditions
imposed by the DRB, rendering this question MOOT.
                                             Conclusions
       For all the reasons expressed above, we do hereby STRIKE the approval and all
conditions imposed by the Town of Castleton Development Review Board by their decision
dated May 25, 2013, and do hereby DENY Applicants’ application to maintain and use the two
new decks on the side of the Lake House Pub & Grille that faces Lake Bomoseen. The Lake
House Pub and Grille may continue to be operated as a nonconforming use in a non-complying
structure in the manner that existed once the permit issued in 1999.
       This completes the current proceedings before this Court.            A Judgment Order
accompanies this Decision.


Electronically signed on March 19, 2015 at Burlington, Vermont, pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division




                                              -17-
