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STATE OF VERMONT APR 2 7 2018
ENVIRONMENTAL COURT VE;'.'{F-,J;Q;\g"r
ENV|RONMENTAL COURT

Docket No. 212-9-08 Vtec
(Appeal from Concord ZBA Decision)

In re Roderiques Variance Application

Decision on the Merits

William and Elizabeth Roderiques (“Applicants”) seek a variance for what they regard as
a necessary storage shed on their vacation property along the shore of Miles Pond, with access
from Campers Lane, in the Town of Concord. When their application for a variance was denied
by the Town of Concord Zoning Board of Adjustment (“ZBA"), Applicants filed a timely appeal
with this Court. Applicants are assisted in this appeal by their attorney, Charles D. Hickey, Esq.

The only other party to appear in these proceedings has been the Town of Concord
(“Town”), assisted in its defense of the ZBA denial of Applicants’ variance request by Town
attorney Thomas Ryan Paul, Esq. The parties made valiant efforts to reach resolution of this
land use dispute, including engaging an independent mediator, but were unable to reach
agreement The Court thereafter conducted a site visit with the parties on October 7, 2009,
followed by a bench trial at the Caledonia County Courthouse in St. Johnsbury.

After the close of evidence, the Court requested that the parties submit post-trial
memorandal The Court has delayed its deliberations, research, and drafting of this Merits
Decision due to other writing responsibilitiesl which the Court sincerely regrets. We endeavor in
this Decision to address all factual and legal issues raised in Applicants’ appeal.

Based upon the evidence admitted at trial, including that which was put into context by
the site visit the Court conducted with the parties, the Court renders the following Findings of

Fact and Conclusions of Law:

Findings of Fact
l. Applicants are residents of Middletown, Rhode Island, and they have traveled to the

Northeast Kingdom of Vermont for vacations for many years. In 2005, Applicants purchased
property at 632 Campers Lane that also adjoins the shores of Miles Pond. The property consists

of two abutting lots, each 50 feet wide and 100 feet long. The two lots run in series towards the

Pond, such that the property boundary closest to Campers Lane is 50 feet wide,l and then travels
a total of 200 feet towards the Pond.

2. At trial, Applicants submitted a survey and site plan of their property as their Exhibit 4.
Exhibit 4 reflects an estimated size of Applicants’ combined lots of 0.26d: acres. l
3. When Applicants purchased their Campers Lane property, it included a seasonal
residence that was in somewhat dilapidated condition. Applicants renovated and improved this
residence and have used it as a vacation home predominately during the summer months, but
occasionally throughout the remainder of the year. Applicants obtained all necessary zoning
permits to complete the renovation of their seasonal residence

4. _Sometime in 2007, another property owner on Campers Lane was disposing of a small
camp building on his property. Mr. Roderiques noticed work being done on this property; when
he spoke with the neighbor, the neighbor offered to give the camp building to Mr. Roderiques,
on the condition that Mr. Roderiques arrange to have the camp building removed from the
neighbor’s property Mr. Roderiques agreed and acquired this building for use as a shed on his
property. n

5. Mr. Roderiques also noticed a contractor working in the area that had a moving crane
large enough to pick up small buildings. He therea&er engaged this contractor to lift and move
the donated camp building to his property at 632 Campers Lane.

6. Mr. Roderiques spoke informally with the Town of Concord Zoning Administrator
(“Administrator”) about his plan to use the donated camp building as an accessory shed building
on his property. Mr. Roderiques understood the Administrator to say that “this would be fine,”
but later Mr. Roderiques understood that he was mistaken and that a zoning permit would be
needed.

7. After discovering that Mr. Roderiques had moved the shed building onto his Campers
Lane property without first obtaining a zoning permit, the Administrator sent a notice of alleged
zoning violation letter (“NOV”) to Applicants. See Exhibit 10. The Administrator mistakenly
addressed his NOV to Applicants at a home address in “Middletown, New Jersey.” The NOV
nonetheless ultimately was delivered to Applicants at their home in Middletown, Rhode Island,

several weeks later.

 

' Applicants’ property does not have frontage on Campers Lane, since there is a narrow strip of undeveloped land
owned by a Mr. and Ms. Brown that lies between Applicants’ property and Campers Lane. Applicants1 property is
therefore a landlocked parcel, but is served by an easement to Campers Lane.

8. Upon receipt of the Administrator’s NOV, Applicants advised the Administrator of their
correct address and set about preparing an application for a zoning permit for their shed.

9. Applicants’ property lies in the Lakeshore Zoning District (“Lake District”), where
buildings and other improvements are required to be set back at least thirty-five feet from the
front and side yards, and an identical minimum from the water line of any lake or pond. See
Town of Concord Zoning By-Laws, tbl. 5.5 [hereinafter “Bylaws”]. Since Applicants’ property
is no wider than fifty feet, no building on Applicants’ property can comply with these side-yard
setback requirements

10. Applicants’ seasonal residence conforms to the front-yard setback and is regarded as a
lawful, preexisting, nonconforming structure as to the side-yard and water setbacks.

ll. Applicants’ property is rocky and slopes downward, at some points steeply, towards the
waters of Miles Pond. Their seasonal residence occupies one of only two somewhat level areas
on their property. The other level area is on the southerly portion of their property, near
Campers Lane. lt is on this second small level area that Applicants have sited their shed.

12. Applicants filed their first application for a zoning permit on September ll, 2007. See
Town Exhibit B. Applicants did not then have a survey or site map for their property, so they
submitted a hand-drawn site map with their application This site map is roughly drawn and
does not contain metes and bounds measurements or monuments to denote their property
boundaries.2 ln fact, Applicants were uncertain of their specific boundaries and had attempted to
determine those boundaries by consulting with the owners of adjoining properties At the time of
the ZBA hearing (referenced below), Applicants and at least one of their neighbors were unable
to resolve the location of their common boundary line. There was some suggestion that the
proposed shed may, in fact, be located on that neighbor’s property.

13. The Administrator denied Applicants’ 2007 request for a zoning permit, since the shed,
as located, would not conform to the Lake District side-yard setbacks. The Administrator, in
consultation with Applicants, thereafter forwarded Applicants’ application to the ZBA, both as
an appeal of his initial denial of their permit request, and as an application for a variance from
the side*yard setback requirements

14. The ZBA noticed and conducted its hearing on Applicants’ appeal and variance

application on October 18, 2007. It received testimony from Mr. Roderiques and at least one

 

2 A copy of this hand-sketched site map is attached as page 4 of Exhibit B.

owner of an adjoining property, The ZBA thereafter issued its written decision on Applicants’
variance and zoning permit requests, in which it listed several reasons why it denied Applicants’

variance request:

0 the Administrator was correct in his determination that Applicants had provided
incorrect measurements on the site plan and permit application;

¢ neither Applicants nor the adjoining property owners had presented a survey or other
documentation to clearly establish defined property lines;

0 the actual location of one or more oprplicants’ boundary lines was uncertain; and

0 because of this uncertainty and lack of survey, the distances from the shed to the side
yards, and therefore their setbacks and the needed variances, could not be detennined.

See 2007 ZBA Decision at Findings 111 4, ll, and 12 (Oct. 18, 2007).

15. Applicants thereafter hired a surveyor to define the exact location of their boundaries and
to assist in resolving any boundary disputes with adjoining property owners. The resulting
survey was admitted into evidence at trial as Applicants Exhibit 4.

16. Once Applicants had received a survey of their property and resolved any disagreement
as to boundary locations with their neighbors, Applicants submitted a new application for a
variance and zoning permit. A copy of this second application was admitted into evidence as
Town Exhibit D.

17. The Administrator again denied Applicants’ zoning permit application, due to
noncompliance with the side-yard setback minimums, and forwarded to the ZBA Applicants’
appeal of that denial, together with their request for a variance The ZBA noticed and conducted
its hearing on Applicants’ second appeal and variance application on August 21, 2008.

18. The ZBA thereaner issued its written decision on August 29, 2008 (“2008 Decision”),
denying Applicants’ second variance and zoning permit requests Applicants thereafter filed a
timely appeal of the 2008 Decision with this Court. l

19. Applicants’ survey (Exhibit 4) depicts their shed as it currently sits on their property; it
notes the shed dimensions as sixteen feet long and fourteen feet wide, with the longer side
somewhat parallel to Campers Lane. The site map attached to Applicants 2008 application
(pages 4 and 5 of Exhibit D) depicts Applicants’ shed as having been turned so that the shorter
side somewhat parallels Campers Lane and therefore provides a slight narrowing of the needed
variances Copies of this site map (Exhibit D, pp. 4 and 5) are attached to this Decision for the

reader’s reference

20. In their 2008 Decision, the ZBA rendered several findings in favor of Applicants’

variance request, including that:

0 Due to the narrowness of the lot (fifty feet) and the cumulative setback requirements
(thirty-five feet from each side boundary), “there is no possibility that the property
can be developed in strict conformity with the provisions of the [Bylaws].
Authorization of a variance is necessary to enable any development of the property.”
2008 Decision at Findings ‘[Hl 4 and 5.

¢ Applicants did not create the unnecessary hardship that now restricts the siting of a
shed on their property; that hardship is created by the narrowness of their lot and the
overlapping of the side yard setbacks. See i_d. at Findings 11 6.

0 The shed as sited “would not substantially or permanently impair the appropriate use
or development of adjacent property, reduce access to renewable energy resources or
be detrimental to the public welfare.” E. at Findings il 7.

21. No appeal was taken from these positive findings However, the ZBA also issued several
negative findings regarding Applicants’ proposed shed, including:

¢ The shed “would alter the essential character of the neighborhood” in that the size and
proposed location cause the shed to have an appearance that “is significantly larger
than is appropriate for this lot in this neighborhood.” E. at Findings il 7.3

¢ “'l`he variance, if authorized, will not represent the minimum variance that will afford
relief and will not represent the least deviation possible . . . .” I_d_. at Findings 1[ 8.

22. The neighborhood surrounding Applicants’ property is mostly developed with seasonal or
vacation homes; there are few full-time residences surrounding Miles Pond. Many and perhaps
most of the developed lots are much smaller than the three acre minimum size required by the
current Bylaws.

23. Applicants provided credible testimony at trial as to the prevalence of separate storage
sheds on residential properties throughout their neighborhood. Exhibit 6 consists of a three-page
printout of the portion of the Vermont Interactive Map (maintained by the Vermont Center for
Geographic lnfonnation) that shows the southerly boundary of Miles Pond, which includes the
neighborhood where Applicants’ property is located. Of the developed properties in this

neighborhood, most include separate storage sheds, unattached to the vacation residence4

 

3 The second quotation here is an explanation found in the “DECISIONS AND CONCLUSIONS” section on page 4
of the 2008 Decision.

4 No specific count of developed properties without sheds was provided at trial. Examination of Exhibit 6 reveals
that of the over fifty developed properties depicted along the full expense of Campers Lane, about eight developed
properties do not appear to include a detached storage shed.

24. Thirty-three of the neighborhood properties include separate storage sheds Most
neighborhood sheds are larger than the shed on Applicants’ property; only one is smaller by one
foot in width. The largest shed measures 40 feet long by 24 feet wide; the smallest shed
measures 16 feet long by 12.5 feet wide, Many of the thirty-three sheds in the neighborhood are
depicted on Applicants’ Exhibits 7 and 8.

25. Most, although not all, neighborhood sheds are as close or closer as Applicants’ shed to
the edge of Campers Lane. Applicants’ shed is located outside of and therefore conforms to the
minimum front yard setback of thirty-five feet. To locate their shed further away from Campers
Lane could require significant excavation and perhaps the blasting of rock and ledge. From the
rear side of the shed, facing Miles Pond, Applicants’ property is steeply sloped towards the Pond
and contains rocky soils and ledge.

26. Applicants intend to use their shed for storage of four-wheeled all-terrain vehicles
(“ATVs”) they frequently use on their property and on nearby public access trails They also
intend to store gasoline, propane for cooking, and other household flammables in their shed,
Their shed is as small as it can be and still accommodate these items If Applicants were
required to construct a smaller storage shed, they would need to store these flammable items in
their horne or in an additional storage shed,

27. Mr. Roderiques is a retired fireman; his professional experience has taught him the
dangers of failing to properly store gasoline, propane, and other flammable materials. While no
federal or Vermont law or regulation prohibits the personal storage of gasoline, propane, and
other flammables in a residential basement, such storage is considered hazardous The National
Fire Protection Association (“NFPA”) recommends that gasoline, propane, or other flammables
be stored in a separate storage structure, away from residences electricity, and other origins of
ignition See NFPA 30: Flammable and Combustible Liquids Code.5

28. Because Applicants use their Miles Pond property as a vacation residence and are
sometimes away from their property for days or weeks at a time, they fear that storage of

flammable materials in their residence could cause significant or total loss of their home.

 

5 When asked during trial what laws or regulations pertained to the storage of gasoline, propane, and other

flammable liquids, Mr. Roderiques said that he did not know. After trial, Applicants filed with the Court a copy of
the publication entitled “NFPA 30: Flammable and Combustible Liquids Code,” together with a printout from the
Vermont Department of Public Safety, confirming that Vermont has adopted this NFPA code. No objection has
been made to the submission of these post-trial filings into the record; we find this NFPA code helpful in
understanding the concerns Mr. Roderiques testified to at trial, and therefore admit the NFPA code as Exhibit lA.

29. Applicants’ proposed use of their shed is identical, or very similar to, the use to which
their neighbors put their various sheds Most all neighbors with sheds on their properties use the
sheds to store ATVS, snowmobiles, or other recreational vehicles, together with gasoline,
propane, and other flammables they use in the course of enjoying their vacation properties

30. Most, if not all, individuals having vacation homes on Miles Pond use ATVs,
snowmobiles, and other recreational vehicles in the course of using and enjoying their properties
and the surrounding public access lands

31. Applicants understand that if they do not obtain a variance and zoning permit for their
shed, they will have to remove it from their property, Applicants have pledged, if they do
receive a variance and permit for their shed, to complete repairs to the shed roof and siding and
paint and landscape the structure, so as to minimize its visual impact from Campers Lane. No

testimony was received at trial that Applicants’ shed is visible from any adjoining properties

Discussion

In this § M proceeding, we are generally charged with considering anew the merits of
Applicants’ variance and zoning permit requests The general premise that directs us in such
proceedings is that we look at the evidence anew and pay no regard to the decision from which
an appeal has been taken. In re: Gizmo Realtv/VKR Assocs., Docket No. 199-9-07 Vtec, slip op.
at 4 (Vt. Envtl. Ct. Apr. 30, 2008) '(Durkin, J.). Our review, however, is not of all legal issues
that an appealed application presents, but only those legal issues that have been preserved for our
review by an appellant ln re Jolley Assoc., 2006 VT 132, 11 9, 177 Vt. 491 (quoting ln re Garen,
174 Vt. 151, 156 (2002)); see also V.R.E.C.P. S(f); 10 V.S.A. § 8504(h); Vill. of Woodstock v.
Bahramian, 160 Vt. 417, 424 (1993). We therefore limit our review here to only those legal
issues preserved for our review by Applicants’ Statement of Questions, and render findings upon
those legal issues, based upon the evidence presented at our trial.

Before we address those issues, we must address a procedural issue raised by the Town:
whether Applicants’ pending application is barred by the doctrine of improper successive
applications We address this issue first, since the determination suggested by the Town would

render our analysis of the legal issues raised by Applicants unnecessary

I. Is tl_1e pending application barred bv the successive-application doctrine?
Land use litigants must also adhere to much of the same constraints as other civil

litigants: our procedures are for the most part governed by the Vermont Rules of Civil and

Appellate Procedure (see V.R.E.C.P. 5(a)(2)) and must comport with the constitutional “case and
controversy” limitations and the res judicata/collateral estoppel doctrines barring the relitigation
of disputes ln re McGrew, 2009 V'l` 44, 1[10 (quoting ln re Canier, 155 Vt. 152, 157e58
(1990)). But the uniqueness that arises in land use litigation includes a need to recognize that
market demands and planning desires cause the uses of land to change Thus, our jurisprudence
has developed to accommodate changes in circumstances that afford flexibility when reviewing
subsequent land use applications concerning the same property, while respecting the finality of
litigation that has concluded This balance is incorporated into the successive application
doctrine. McGrew, 2009 VT 44, 11 11 (citing ln re Dunkin Donuts Site Plan Approval, 2008 VT
139,11 9) (other citations omitted).

The successive-application doctrine bars the relitigation of the same land use application
that was previously denied, even when the applicant has presented more compelling evidence in
support of their land use proposal E. at ‘|l 15. The barrier to relitigation of the same application
acts to preserve the doctrine of finality and to “protect property owners fi'om the ‘harassment’ of
repetitive [land use] applications.” E. at 11 ll (quoting Dunkin Donuts, 2008 VT 139, 11 9). This
respect for the finality of litigation must be balanced, however, with a flexibility to acknowledge
the changes to circumstances surrounding land use proposals, particularly changes made by an
applicant in direct response to the circumstances that lead to the prior denial of their earlier

application Jolley Assoc., 2006 VT 132, 11 12 (citing Carrier, 155 Vt. at 58 (“[A] zoning board

 

or planning commission may not entertain a second application concerning the same property

after a previous application has been denied, unless a substantial change of conditions had

occurred or other considerations materially affecting the merits of the request have intervened

between the first and second application.”)). Thus, a successive application concerning the same

or similar land use orr the same property cannot be successful, unless the circumstantial changes `
articulated in Ml_ey and other analogous Supreme Court determinations have been met.

Simply returning to a zoning board with better evidence, particularly evidence that could
have been presented in support of the first application, is not sufficient to overcome the bar
against improper successive applications McGrew, 2009 VT 44, 1[ 13. Thus, if we were faced
here with an application that was presented a second time, merely with better boundary data,
such as Applicants did here with the presentation of a boundary survey (Exhibit 4), it is less

likely that Applicants’ successive application could survive. However, Applicants returned to

the ZBA with more significant changes First, they resolved the boundary uncertainty that
existed when they and their neighbors first appeared before the ZBA. While their relations had
been cordial, this boundary discrepancy was so substantial as to provide some of the foundation
for the ZBA denial of Applicants’ first application Second, they realigned their storage shed so
that its most narrow faces would run parallel to their roadside boundary line, thereby reducing
the needed side-yard variances This realignment was in direct response to the ZBA’s negative
finding that the variances Applicants requested in their first application “will not represent the
minimum variance that will afford relief.” 2007 ZBA Decision' at Findings 11 10.

ln addressing the concerns first expressed by the ZBA, Applicants provided substantive
responses to the shortcomings in their first application and addressed issues that caused the ZBA
to express concems in its 2007 Decision. Applicants presented a second application for approval
of their storage shed, but because of the circumstantial changes concerning their boundary
dispute resolution and realignment of their shed, we conclude that their second application is not
barred by the successive application doctrine. We therefore conclude that review of Applicants’

second application is appropriate

II. Remaining variance criteria

Development may only occur in the Town of Concord when it has been determined to
conform to the Bylaws Bylaws § 5. Variances, when granted, allow for development that is not
in Strict conformity with the Bylaws, provided the ZBA determines that the applicable variance
criteria have been satisfied The Bylaws do not specifically recite the variance criteria, but rather
make reference to the specific statutory provisions now found in 24 V.S.A. §4469(a). The
applicable criteria require:

(1) 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 unnecessary hardship is
due to these conditions, and not the circumstances or conditions generally created by the
provisions of the bylaw in the neighborhood or district in which the property is located.

(2) Because of these physical circumstances or conditions, there is no possibility that the
property can be developed in strict conformity with the provisions of the bylaw, and that
the authorization of a variance is therefore necessary to enable the reasonable use of the
property.

(3) Unnecessary hardship has not been created by the appellant

(4) 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 or be detrimental to the public welfare.

(5) 'l`he variance, if authorized, will represent the minimum variance that will afford
relief and will represent the least deviation possible from the bylaw and from the plan

24 v.s.A. § 4469(3).

There is a traditional reluctance to grant variances since, by their very nature, variances
constitute individual exceptions to the applicable zoning provision ln re Mutschler, 2006 VT
43, 11 7, 180 Vt. 501 (mem.) (citing ln re Maurice Memorials 142 Vt. 532, 535 (1983)). This
reluctance is codified in the directive that a variance request may only be granted after a
determination that the applicant has satisfied all five variance criteria. E. at 11 9 (citing M
Pike & Son. Inc. v. Town of Waterford, 130 Vt. 432, 435 (1972)). Applicants here may
therefore only obtain the requested variance for each side-yard setback requirement by securing
positive findings under each of the five criteria stated in § 4469(a).

As noted in the introductory paragraph of this Discussion, our jurisdictional review is
limited to the legal issues preserved for our review by an appellant Jolley Assoc., 2006 VT 132,
11 9. While Applicants’ Statement of Questions contains five paragraphs all issues raised pertain
to the two negative determinations made by the ZBA: first, that the proposed shed will alter the
essential character of the neighborhood and, second, that the shed as sited does not represent the
least deviation possible from the zoning regulations Thus, we have before us only the two
criteria codified in the first portion of 24 V.S.A. §4469(a)(4)6 and subsection (5). Since the
ZBA rendered positive determinations on the remaining three (arrd a half) variance criteria, and
no party appealed those positive determinations our positive determinations on the two legal
issues preserved for our review in this appeal will result in Applicants being entitled to the
requested variance and zoning permit

The evidence presented at trial causes us to respectfully arrive at opposite conclusions
from those rendered by the ZBA on the two challenged variance criteria. First, we find no
support in the evidence presented that Applicants’ shed will alter the essential character of their

neighborhood In fact, the credible evidence only supports a determination that the shed as

 

6 We understand that only the first portion of § 4469(a)(4) remains at issue, since the ZBA concluded that

Applicants shed as sited “would not substantially or permanently impair the appropriate use or development of
adjacent property, reduce access to renewable energy resources or be detrimental to the public welfare.” 2008
Decision at 11 7.

10

currently proposed, including the remaining repair and landscaping Mr. Roderiques has pledged
to complete, conforms to and complements the character of this neighborhood

The vast majority of developed properties along Campers Lane have similar or larger
storage sheds; many of those neighboring sheds are located as close as or closer to Campers Lane
as Applicants’ shed, The neighbors having sheds put them to the same or similar uses as
proposed by Applicants: to store ATVs, snowmobiles, or other recreational vehicles and to store
gasoline, propane, and other flammables away from their vacation residences This separate
storage of flammable items seems prudent for these specific properties especially since the vast
majority of these properties are vacation homes and sometimes not visited for days or weeks at a
time, For these reasons we conclude that Applicants’ shed as proposed, and conditioned upon
the repair, painting, and landscaping Mr. Roderiques has pledged, will not alter the essential
character of their neighborhood and therefore conforms to the challenged provisions of 24
V.S.A. § 4469(a)(4).

Whether Applicants’ shed represents the minimum deviation from the applicable zoning
provisions to afford relief poses a more difficult and subjective factual question We are
assisted, to some extent, by the factual determinations already made by the ZBA and left
unchallenged before this Court: first, the ZBA determined that “there is no possibility that the
property can be developed in strict conformity with the provisions of the [Bylaws and
a]uthorization of a variance is necessary to enable any development of the property.” 2008
Decision at Findings 1111 4 and 5. Second, the ZBA determined that that the hardship Applicants
now face in attempting to site a storage shed on their property was not created by them, but
rather was created by the narrowness of their lot and the overlapping of the side-yard setbacks.
See 2008 Decision at Findings 11 6. ln fact, no shed or other structure could be added to
Applicants’ property and respect these overlapping side-yard setbacks. Thus, the ZBA has
already concluded that some variance is warranted in this case. E. at Findings 1111 4 and 5.

Some commentators have long asserted that local Vermont zoning boards have abused or
exceeded their statutory authority to grant variances See generally Michael D. Donovan, Note,
Zoning Variance Administration in Verrnont, 8 Vt. Law Rev. 371 (1983). Although Vermont
has Sometimes been regarded as following a more strict interpretation of the propriety of
variances our Supreme Court has consistently recognized variances where justified to be

appropriately “employed as ‘an escape hatch from the literal terms of an ordinance which, if

ll

strictly applied, would deny a property owner all beneficial use of his land and thus amount to
confiscation.”’ ln re Mutschler, 2006 VT 43, 117, 180 Vt. 501 (mem.) (quoting Lincourt v.
Zoning Bd. of Review, 201 A.2d 482, 485-86 (R.I. 1964)). Thus, while commentators and
courts often caution that the statutory authority for variances limits their application, variances
remain a recognized alternative when a strict adherence to zoning provisions will bring about
unjust results ld. (citing People ex rel. Fordham Manor Reformed Church v. Walsh, 155 N.E.
575, 578 (N.Y, 1927) (Cardozo, C.J.).

ln the pending application, we have an unchallenged ZBA determination that a variance
is necessary for the reasonable use of Applicants’ property. The remaining legal issue before us
is a narrow one: does the shed Applicants propose for their property represent the least deviation
from zoning that their reasonable use requires? We conclude that it does. Applicants’ presented
credible evidence that their shed could not be made smaller and still serve the necessary storage
purposes for their property. With one minor exception, Applicants’ neighbors have sheds orr
their properties that are the same size or larger than Applicants’ shed; some of` those neighbors’
shed are much larger than Applicants’ shed and evidence equal or more significant conflicts with
the applicable zoning setback provisions Applicants propose to reorient their shed, so as to
reduce the needed setback variances To deny Applicants’ variance request would be tantamount
to concluding that no shed should be allowed on their property, The credible evidence presented
supports our conclusion that Applicants have sized and sited their shed to deviate in the least
possible manner from the zoning setback provisions and still serve the needed purpose

Given the evidence presented at trial and the unique procedural posture presented_
namely, that the ZBA had already rendered positive determinations on three variance criteria and
a portion of a fourth, we conclude that Applicants have satisfied all applicable criteria and are
entitled to the requested variance.

Conclusion

For all the reasons stated herein, we conclude that Applicants are entitled to variances
from the applicable side yard setback requirements in Town of Concord Zoning By-Laws tbl.
5.5, so that they may site their storage shed as shown on the portion of their site map that is
attached to this Decision. As a consequence of this grant of the requested side yard setback
variances we also conclude that Applicants’ zoning permit application for their proposed storage

shed should be GRANTED, conditioned upon Mr. Roderiques completing the roof and siding

12

repair, painting, and landscaping he pledged to complete, so as to minimize the visual impact of
his storage shed

These proceedings are hereby REMANDED to the Town of Concord Zoning
Administrator, solely for the purpose of completing the ministerial act of issuing a zoning permit
to Applicants in conformity with this Decision.

A Judgment Order accompanies this Decision. This completes the current proceedings in

this Court concerning this appeal.

Done at Berlin, Vermont this 27th day of April, 2010.

@<ifh'M

Thomas H. Durkin, Environrnental Judge

 

13

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