                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Appeal of John T. Adams          }
                                                }
                                                }     Docket No. 227-10-02 Vtec
                                                }
                                                }

                   Decision and Order on Motion for Summary Judgment

   Appellant John T. Adams appealed from a decision of the Zoning Board of Adjustment
(ZBA) of the Town of Fair Haven, granting a variance to Henry Daley for construction of a deck
within the required side setback at 9 Caernarvon Street. Appellant represents himself. Despite an
entry order from the Court on December 18, 2002, noting that the matter would be decided by
summary judgment as no other parties had entered an appearance in the case, Mr. Daley has not
entered an appearance in this matter. The Town has also declined to enter an appearance in this
matter. Appellant has moved for summary judgment.

   The following facts are undisputed unless otherwise noted.

   Mr. Henry Daley owns property at 9 Caernarvon Street with an existing old house,
noncomplying at least as to the north side setback, which is required to be 20 feet. Section 400 of
the Fair Haven Zoning Regulations entirely prohibits1 the enlargement of a noncomplying
building which is noncomplying as to e.g., the side yard setback, unless A such enlarged portion
conforms to the ordinance@ regarding those requirements. As defined under the term A setback@ in
the ' 140 definitions, setbacks are measured to a wall, porch or deck, but not to steps.

    Mr. Daley= s lot is approximately 57 feet wide. The front part of the house is 28 feet wide and
is located approximately four feet from the north side lot line. The rear part of the house is 15
feet wide and is located approximately eight feet from the north side lot line and approximately
34 feet from the south side lot line. Mr. Daley now2 proposes to place a six-foot-wide deck so
that it wraps around the rear and the south side of the back of the house, encompassing a rear
door already existing in the east wall of the house, and a side door or window already existing in
the south wall of the rear portion of the house. This deck is proposed to be placed so that it
would be 15 feet from the north side property line and only require a five-foot variance from the
side setback requirements.

   In order to qualify for a variance, Mr. Daley must meet all of the first five3 requirements of '
670 of the Fair Haven Zoning Regulations:

(A) 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 Regulation in the neighborhood or district in which the property is located.

(B) That as a result 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.

(C) That such unnecessary hardship has not been created by the [applicant].

(D) That the variance, if authorized, will not alter the essential character of the neighborhood or
district in which the property is located, nor substantially or permanently impair the appropriate
use or development of adjacent property, nor be detrimental to the public welfare, and

(E) That the variance, if authorized, will represent the minimum variance that will afford relief,
and will represent the least modification possible of the Zoning Regulation and of the
comprehensive plan.

   If Mr. Daley= s proposal fails any one of these provisions, it fails to qualify for a variance.

    The proposal does not meet subsection (A), as the property appears to be regular in shape and
topography, and contains no unusual physical conditions creating the > hardship= other than the
side setbacks established by the zoning regulations for this district. The proposal does not meet
subsection (B) because the property has been reasonably used as a residence for many years
without the proposed deck. In addition, because steps, as opposed to decks, may be constructed
within the setback area, it would be possible to make a reasonable use of the existing back door
in conformity with the zoning regulation by installing steps for access to the back door. It would
also remain possible for Mr. Daley to install the deck as designed in the area to the south of the
side setback, and to install steps as necessary leading up from the back yard to the deck within
the setback area. For this reason, the proposal also fails to meet subsection (E).

   Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellant= s Motion for Summary Judgment is GRANTED; the variance issued to Mr. Daley is
hereby VACATED, concluding this appeal. This decision is without prejudice to any future
application Mr. Daley may wish to make to the Zoning Administrator or ZBA for any altered
design in compliance with this decision and order.

   Done at Barre, Vermont, this 13th day of January, 2003.



___________________
Merideth Wright
Environmental Judge
                                           Footnotes
1
    Some towns allow some degree of enlargement of noncomplying structures under certain
conditions of approval as a conditional use by the ZBA; however, the Fair Haven regulations do
not contain such a provision.
2
    A former proposal for approval of an as-built 15' x 12' deck, located directly behind the
house and therefore requiring a twelve-foot variance from the required 20-foot side setback, was
denied and not appealed by Mr. Daley. Instead, Mr. Daley filed the present application.
3
   Appellant has not suggested that subsection (F), relating to development in the Flood Hazard
Area District, applies in this case.
