                         STATE OF VERMONT

                       ENVIRONMENTAL COURT

         In re: Appeal of Allen     }
         and Debra Moore            }
                                      Docket No. 38-2-00
                                    }
                                      Vtec
                                    }
                                    }



     Decision and Order on Cross-Motions for Summary Judgment

Appellants appealed from a decision of the Development Review Board
(DRB) of the Town of Ludlow denying their application to convert a
single-family home to a single-family home with in-law apartment1.
Appellants are represented by Matthew T. Birmingham, III, Esq.; the
Town is represented by J. Christopher Callahan, Esq. The parties have
filed cross-motions for summary judgment on whether the Zoning
Regulations require an additional 40,000 square feet of lot area for
conversion of a single-family dwelling to a two-family dwelling (or to a
single-family dwelling with in-law apartment).

The following facts are undisputed unless otherwise noted.

In 1993 Appellants purchased a parcel of land greater than 40,000
square feet in area and less than 80,000 square feet in area, in the
Lake zoning district of the Town of Ludlow, with a single-family, three-
bedroom dwelling. In 1993, they installed a kitchen and bedroom in
the downstairs of the dwelling. The parents of one of the Appellants
live year-round in the downstairs of the dwelling; the upstairs is used
as a vacation home by Appellants. Neither portion has ever been
rented out as a separate unit.

Although the application appears to have been for a single-family
dwelling with an in-law apartment, required by 24 V.S.A. ' 4406(4)(D)
to be allowed as a conditional use in any district in which a single-
family use is allowed, the DRB rejected it on the grounds that it was a
two-family dwelling without 80,000 square feet of minimum lot area.

Two issues arise from this case, although both parties have only
focused on the lot area minimum. The parties did not address whether
the DRB should have considered this application as an accessory in-law
apartment under 24 V.S.A. ' 4406(4)(D). That statutory section
requires that the single family residence, to which the in-law
apartment is accessory, be occupied by the owner. The statute is
silent, however, as to whether it must be occupied by the owner as a
year-round residence or whether it falls within the provision even if the
owner uses it only as a vacation home. The Court should not address
an issue which the DRB has not first had the opportunity to address;
therefore we note only that the question is an open one, and that
Appellants are free to submit it to the DRB for consideration as an
alternate ground for their application.

Regarding the lot area minimum, the Town interprets the lot area
minimum as requiring the specified lot area per dwelling unit, while
Appellants interpret the requirement as the minimum lot area for any
allowed use in the district.

Section 620.3, captioned A Dwellings on Lots,@ provides that A there
shall be only one residential building on a lot@ (unless otherwise
approved as a Planned Residential Development or a Planned Unit
Development). The Lakes zoning district standards (' 530) provide that
a A One Family Dwelling@ is a permitted use, and that a A Residence
with Professional Office@ and a A Two Family Dwelling@ are
conditional uses in the district. All three of those use categories are A
residential@ as opposed to A non-residential@ types of uses. The A Lot
Area Minimum@ for the Lakes district is 40,000 square feet, and does
not distinguish between types of residential uses or between
residential and non-residential uses. In several other zoning districts,
the lot area minimum distinguishes between types of residential uses
or between residential and non-residential uses. For example, in the
Town Residential district and the Mountain Recreation district, the A
Lot Area Minimum@ is 40,000 square feet for residential uses and
80,000 square feet for non-residential uses. In the Town Residential-
Commercial district, the only district in which multiple (more than two-
family) family dwellings are allowed, the Lot Area Minimum is 40,000
square feet for a one- or a two-family dwelling, and an additional
20,000 square feet for each dwelling unit (that is, a minimum of
60,000 square feet) for multi-family buildings after the first two
dwelling units.

Nothing in the Zoning Regulations2 requires that the minimum lot area
in ' 530 be applied on a > per dwelling unit= basis unless it is so
specified. Rather, the ordinary principles of statutory construction
suggest that in the district in which the Town wished to apply a
minimum lot area per dwelling unit, the Zoning Regulations do so
explicitly. In the other districts, including the Lakes district, the
minimum lot area for residential uses must be interpreted to be per
residential use, which ' 620.3 requires in a single building, and not per
dwelling unit.

Accordingly, based on the foregoing, Appellants= Motion for Summary
Judgment is GRANTED and the Town= s Motion for Summary Judgment
is DENIED. Under the language of the Zoning Regulations, Appellants
may maintain a two-family dwelling in a single building on their lot in
the Lakes district without violating the minimum lot size provisions of
the ordinance. This decision and order concludes the appeal.

Done at Barre, Vermont, this 6th day of April, 2001.




___________________
Merideth Wright
Environmental Judge



                               Footnotes
1.
      Both parties‟ motions pose the issue in this case as conversion
from a single family dwelling to a two-family dwelling; however, the
DRB decision, „Introduction‟ paragraph 2, describes it as an
“application for a single family with in-law apartment.”
2.
      The statement in the definition of dwelling unit, that each is a
separate unit for the purpose of calculating density, does not change
the fact that some districts specify a density (number of units per lot
area) and other districts only specify a minimum lot size for the single
residential building allowed per lot.
