                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT

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In re: Appeal of                                   }
        Nancy Lemieux and William Metzler          }      Docket No. 241-12-98 Vtec
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                         Decision and Order on Remaining Issues

       Nancy Lemieux and William Metzler appealed from a decision of the then-Zoning
Board of Adjustment (ZBA - now the Development Review Board (DRB)) of the Town of
Hyde Park, granting Applicants a permit for Arepairs to existing barn.@ This is the latest in a
series of appeals involving the same property and parties. Appellants are represented by
Paul S. Gillies, Esq.; the Town of Hyde Park is represented by James R. Dean Mahoney,
Esq. Applicants William Barton and McKinistry Hill Realty Trust have not entered an
appearance in the present case, but Mr. Barton did testify as a witness. After the hearing,
the Court arranged for Mr. Barton and Appellants to engage in mediation, to determine if
some alternative resolution of their continuing dispute was possible.
       Applicants own or have the use and benefit of a 24-acre parcel of land in the Rural
Residential District 2 on Town Highway 15 (the Diggins Road) in the Town of Hyde Park,
directly across the road from Appellants= residential property. Applicants obtained a permit
from this Court in 1996 (Docket No. E95-132 (July 31, 1996)) to renovate the existing barn
for use as a residence upstairs and a workshop downstairs. The barn is a pre-existing
non-conforming structure as it is set back less than the 50 feet required for a front setback
from the public highway right-of-way. Agricultural uses, single-family dwellings, and home
occupations are all permitted uses in this zone. Appellants= residence is at a higher
elevation than the barn and activities on Applicants= property within the front setback are
visible and audible from Appellants= residence.
       This Court had found on summary judgment in Docket No. E95-132, that the
existing barn had no foundation, no windows, only a double sliding door access, no


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electricity, no water supply, and no sewage disposal facilities, and that its prior use was for
general farm purposes, most recently for hay storage. That order found that Applicants
had made the following external alterations or improvements to three sides of the structure:
removal of all old barnboard; installation of 2x6 studs between all existing posts and
beams; re-sheathing with rough-sawn timber; application of vapor barrier material; framing
and installation of nine windows; construction of an exterior set of stairs and a landing in
the rear of the building, and installation of an exterior door at the landing.           These
alterations or improvements to the structure did not reduce the existing setback distance to
the public highway right-of-way. The exterior stairs and landing have since been removed.
       In the July 31, 1996 decision, the Court imposed the following conditions as
necessary and appropriate to minimize the effect of the setback non-compliance on
Appellants= property, in light of the change in use for which that permit was requested.
       1.      No vehicles shall be parked within the front setback. A driveway shall be
       located to the west of the building, between the building and the septic field, so that
       any parking area is to the north of the building and does not extend beyond the
       building to the east. [Applicants are] not required to plow the entire front setback
       area, but any snow plowed from the front setback area shall be removed beyond
       (that is, to the north of) the front face of the building.
       2.      The use of the front sliding door of the building is restricted to such use as is
       necessary for deliveries of materials or placement of boats, vehicles or equipment
       which are too large to pass through the main door outside the front setback at the
       back of the building.
       3.      Any exterior lighting installed on the south or the east side of the building
       shall be pointed downwards and shielded so that no direct light shines beyond the
       south side of the traveled way of the road and so that no glare is visible from
       Appellants' property.
       4.      [Applicants] shall plant and maintain a staggered double row of evergreens
       (white pine, spruce or cedar species), 6 feet in height and ten feet on center,
       immediately to the north of the highway right-of-way, from the easterly edge of the
       front door opening and extending easterly for 40 feet.
       5.      This permit specifically does not allow the use of the shop for commercial
       purposes or for home occupation purposes.
       Appellants could have sought enforcement of the Court=s order under 24 V.S.A.
'4470(c), or could have requested the Town to take enforcement action. The Town did file
an enforcement action in Lamoille Superior Court, Docket No.               89-4-97 Lecv, but
Appellants were not parties to that action, and did not file their own action under '4470(c)

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or obtain party status in Superior Court as intervenors. The Town and Applicants settled
the enforcement case and the Lamoille Superior Court approved the stipulation and
entered it as a court order on March 4, 1998. The Superior Court Order provided for a fine,
provided for attorney=s fees and costs in any future suit to enforce the order, and provided
as follows:
       1.     [Applicants] agree to surrender their current zoning permit to use the barn as
              a residence, and further agree to the Town=s voiding of said permit.
       2.     From this date forward, [Applicants] shall not use the barn for residential
              purposes without first obtaining all necessary permits.
       3.     From this date forward, [Applicants] shall not use the camper, while it is
              stored within the barn, for residential purposes without first obtaining all
              necessary permits.
       4.     [Applicants] shall not use the barn for any non-permitted purposes without
              first obtaining all necessary permits.
       The effect of this order was to vacate the 1996 permit, including the conditions
imposed by the Environmental Court. In the present case, Appellants ask the Court to
impose similar conditions on the present permit.
       In August of 1998, Appellants complained to the Town=s Zoning Administrator that
Mr. Barton was continuing to use the building after the permit had been vacated, and that
no permit was on record for the external alterations and improvements. Appellants
requested, in addition, that the Town enforce the Superior Court order. The Zoning
Administrator responded that she would be notifying Applicants of a Abylaw violation in the
absence of a zoning permit for the external alterations and improvements to the structure.@
Appellants did not appeal the Zoning Administrator=s failure to act on their other requests,
nor did they bring a mandamus action to require the Zoning Administrator or other Town
official to enforce the Superior Court order.
       Applicant then applied for and was granted zoning permit No. 98-40 for Arepairs to
existing barn,@ covering the exterior improvements already made to the barn and to
complete those improvements. The application did not request any particular use to be
made of the barn, and did not request a permit to place a camper/trailer in the barn or to
use it for overnight stays from time to time. Docket No. 241-12-98 Vtec is Appellants=
appeal of the permit granted for repairs to the existing barn.


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       After summary judgment motions, Questions 2 (amended), 5, 7, 9(amended), 10,
11, 12, 15 and 17 remain for decision. An evidentiary hearing was held in this matter
before Merideth Wright, Environmental Judge. The parties were given the opportunity to
submit written requests for findings and memoranda of law. Upon consideration of the
evidence and the written memoranda and proposed findings, the Court finds and
concludes as follows.


Scope of the Present Appeal
       As we have already ruled, this appeal does not involve issues as to the use of the
barn, but only as to whether the exterior improvements should be allowed. If any change in
use requires a change-in-use permit, a conditional use permit, or a variance, independent
of the exterior structural changes, such applications are not before the Court in the present
appeal. Moreover, the present appeal does not involve any request for or denial of any
request for enforcement action by the Town; what was appealed to the ZBA and thence to
this Court was the grant of a permit for repairs to the barn, not a request for enforcement
action. No enforcement action is pending before this Court related to the present use of
the barn, and this Court would not have jurisdiction of any effort to enforce the Superior
Court order. Any changes of use which may have been made of the barn may be
addressed in the present appeal only to the extent that those changes may relate to the
need for conditions to mitigate the physical non-conformity of the barn with the front
setback requirements of the Zoning Bylaws.


Revised Question 2
       We denied summary judgment on Appellants= revised Question 2, because facts
were in dispute as to Applicants= future plans to use the camper/trailer and Applicants=
then-present use of the barn. As revised, Question 2 requested the Court to determine
whether the change of use of the structure Ato use the camper/trailer located within the
structure (on site for many years) for occupancy every other weekend in the coming years
until the applicant completes work on a new residence, and for storage of a boat,
snowmobile, tools and building materials, as a personal workplace, and as a garage@

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constitutes land development, whether it requires a permit for a change of use and
whether it requires a conditional use permit.
       However, it appears from the evidence that these issues were not before the then-
ZBA in the decision appealed from, and therefore are not before the Court in this appeal.
While Appellants arguably requested that the Zoning Administrator address these issues in
their August 21, 1998 letter, they did not appeal to the then-ZBA from the Zoning
Administrator=s response, nor did they bring any kind of mandamus action to require the
Town to enforce the Superior Court order. Rather, Applicants= applied for a permit to
authorize the exterior repairs, and they only appealed from the then-ZBA=s grant of that
permit.


Revised Question 9, and Questions 10, 11, 12 and 15
       Similarly, we denied summary judgment on Appellants= revised Question 9, because
facts were in dispute as to whether the camper/trailer which applicant has placed within the
barn Acontinues to be used for occupancy.@ Evidence was presented that Mr. Barton uses
the camper for overnight occupancy on approximately 40 to 50 days a year.
       Questions 10, 11, 12 and 15 were legal questions inquiring whether the camper is
considered a Asingle family dwelling@ under 'IV(B)(1)(b) or a Asingle family residential
structure@ under 'XIV(23) of the Zoning Bylaws; whether its use for occupancy is land
development that requires a permit; whether its location or relocation onto Applicants=
property is land development that requires a permit; and whether its location within a
building that does not comply with the front setback regulations requires a variance. In the
summary judgment order, we ruled that Questions 10, 11, 12 and 15 were entirely
theoretical and that answers to them would constitute an impermissible advisory opinion,
unless they were linked to a particular proposal for occupancy or placement of the camper
on the parcel or within the barn at issue in the present appeal.
       It appears from the evidence that the application that was before the then-ZBA in
the decision appealed from only requested approval of the exterior repairs to and
construction on the barn. The application did not request any particular proposal for
occupancy or placement of the camper on the parcel or within the barn. Therefore,

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Questions 9, 10, 11, 12 and 15 were not before the then-ZBA in the decision appealed
from and are not before the Court in this appeal.


Question 17
       Question 17 requests the Court to determine, if the barn structure is not in
agricultural or residential use, whether it should be treated as a conditional use; that is,
whether a conditional use permit should be required. If the barn is not in a permitted use,
such as agricultural, residential, home occupation or some other permitted use, then its
use may require a conditional use permit. However, resolution of this question was not
before the then-ZBA in the decision appealed from and therefore is not before the Court in
this appeal.
Questions 5 & 7
       Questions 5 and 7 request the Court to determine whether the permit should be
granted with conditions to mitigate the impact of the non-conformance to the front
setbacks. Appellants request that the permit for the exterior changes be issued only on the
following conditions:
       A.      No vehicles shall be parked within the front setback or within the public right-
       of-way of Diggins Road. A driveway shall be located and constructed to the east of
       the building, east of the telephone pole. All parking shall occur within an
       established parking area to be located and constructed on the north side of the
       building, not to extend beyond the northeast corner of the building.
       B.      Applicants or their successors are not required to remove all the snow from
       the front setback area, but any snow plowed from the front setback area shall be
       removed to the west of the building.
       C.      The main entry door shall be located and constructed on the north side of the
       building. The front sliding door may be used for deliveries of materials and/or boats
       and vehicles that are too large to pass through the main door. Other than those
       uses, the sliding door shall remain closed. No materials shall be placed or boats
       and/or vehicles parked outside the building within the front setback or within the
       public right-of-way of Diggins Road
       D.      Applicants or their successors may install exterior lighting installed on the
       south or the east side of the building so long as it is pointed downwards and
       shielded so that no direct light shines beyond the southern edge of the traveled way
       of the road and so that no glare is visible from Appellants= property.
       E.      Applicants and their successors shall plant and maintain a staggered double
       row of evergreens (white pine, spruce or cedar species), taken from nursery stock or
       comparable quality, 8 feet in height and ten feet on center, immediately to the north

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       of the highway right-of-way, from the easterly edge of the sliding door and extending
       easterly to the telephone pole on the east side of the building.
       F.      For purposes of this order, Aresidential use@ shall mean the use of the
       building for overnight occupancy, whether within the camper or within the building.
       There shall be no residential use without a change of use permit.
       G. The Town of Hyde Park shall not attempt to have these provisions amended or
       struck by its Zoning Administrator, Zoning Board of Adjustment, or any court during
       any process of enforcement or other action nor shall it consent to the withdrawal of
       the permit on which these conditions are based by Applicants or their successors
       and assigns; however, the Town may return to this Court for amendment of this
       order.
Of these proposed conditions, portions of the first four are necessary to mitigate even the
exterior changes and repairs to the structure which are the subject of the present
application, and will be imposed by the Court. They relate directly to whether the changes
to the doorways opening into the building proposed in the application and already made to
the building should be allowed, or whether they should be denied under 'III(C)(1) due to
the proximity of the front of the building to the roadway.
       On the other hand, the screening requirement in proposed condition E, which the
Court found necessary to impose in the 1996 ruling, remains important and would be
imposed in some similar form by the Court in any change of use or conditional use permit
that came before the Court. However, it cannot be justified by the exterior repairs and
construction application which is all that is before the Court in the present case. It can only
be justified if some use is being made of the land to the east of the building and behind the
building, which has the potential to interfere with Appellants= use and enjoyment of their
property. Similarly, proposed paragraph F is beyond the scope of the present application.
The present application before the Court covers only the proposed exterior repair work,
and does not involve any application for a ruling as to whether Applicants= residential use of
the building on approximately two weekends a month, requires a change of use permit.
This Court cannot address that question unless it was before the ZBA in the decision
appealed from. Further, there is no authority in the zoning statute or the rules of civil
procedure for the Court to enjoin the Town in the manner proposed in Paragraph G above.


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       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that a
permit for the exterior changes and repairs to the structure is hereby GRANTED, subject to
the following conditions.
       1.     No vehicles, boats or other equipment shall be parked and no materials shall
       be placed within the front setback or within the public right-of-way of Diggins Road.
       A driveway may be located and constructed to the east of the building or to the west
       of the building, with any parking area to be located and constructed on the north
       side of the building, not to extend beyond the northeast or northwest corners of the
       building. In determining whether to place a driveway to the east of the building,
       Applicants should bear in mind that evergreen screening may be required as a
       condition to any use permit for the building.
       2.     Any snow plowed from the front setback area and remaining on the property
       shall be placed northerly of the roadside face of the building.
       3.     The main entry door shall be located and constructed on the north side of the
       building. The front sliding door may be repaired and used for deliveries of materials
       and/or boats and vehicles that are too large to pass through the main door. Other
       than during such deliveries, the front sliding door shall remain closed.
       4.     Applicants or their successors may install exterior lighting installed on the
       south or the east side of the building so long as it is pointed downwards and
       shielded so that no direct light shines beyond the southern edge of the traveled way
       of the road and so that no glare is visible from Appellants= property.


       With respect to the reasons that Appellants proposed their condition G, the Court
wishes to note that, to avoid problems in the future, the Town of Hyde Park should not file
any enforcement action, whether in this or in any other court, nor hold any hearing of its
now-Development Review Board, with regard to the premises at issue in this appeal,
without prior notice to Appellants or their successors, to enable them to participate in,
intervene in, or appeal from such actions to protect their own interests.



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       Dated at Barre, Vermont, this 29th day of December, 2000.




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                                              Merideth Wright
                                              Environmental Judge




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