                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


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In re: Appeal of                          }
 James Harrison and Janet Harrison        }       Docket No. 180-10-98 Vtec
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                                  DECISION and ORDER

       Appellants James Harrison and Janet Harrison appealed from a decision of the
Zoning Board of Adjustment (ZBA) of the Town of St. Albans, denying their application for
a variance. Appellants are represented by William T. Counos, Esq.; the Town of St.
Albans is represented by David A. Barra, Esq. 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, the written memoranda and proposed findings, the Court
finds and concludes as follows.


       Appellants own a pre-existing small lot on Maquam Shore Road, in the Lakeshore
zoning district of the Town of St. Albans. Maquam Shore Road is a four-rod road. In 1989
Appellants received conditional use approval to construct a single-family dwelling, and
received a variance for the setback requirements from the road and from the lake, as the
lot ranges from only 42 to 63 feet in depth, and no construction would have been possible
on the lot in compliance with those setback requirements. The Zoning Bylaws require a
setback of 30 feet from the right-of-way of the road; their variance allowed the house to be
constructed to 19 feet from the traveled edge of the road. In 1991 Appellants received a
building permit and built their house. Bedrooms are located within the house on the
roadside side of the building. Appellants installed a cedar hedge in front of the house
when the house was built.


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       Along Maquam Shore Road in the vicinity of Appellants= property, many of the
properties have decks, wood fences, metal fences, hedges or trees installed close to the
traveled portion of the road and within the Town=s right-of-way. Along some segments of
the road, steel guard rails are installed close to the traveled portion of the road. There
have been fatal accidents on this road or other segments of Lake Road in which vehicles
have hit pedestrians or have hit a wood structure or gone through a wood fence.
       In 1998, Appellants replaced the cedar hedge with a concrete planter wall, in
approximately the same location as the hedge. The cedar hedge had died back, possibly
due to exposure to salt from the maintenance of the roadway. No evidence was presented
as to whether Appellants investigated the availability of other, more salt-resistant species of
trees to replace the cedars. The concrete planter wall is 82 feet long, 27 inches high and
18 inches wide. Appellants did not obtain a zoning permit1 to construct the concrete
planter wall. Appellants= purpose in replacing the cedar hedge with the concrete planter
wall was to protect the house and its residents from the possibility of Aerrant traffic@ going
off the road and colliding with the house. A steel guard rail could have been installed along
the road in front of Appellants= house, but Appellants and their consultant chose the
concrete planter wall as a more aesthetically pleasing alternative.           In the present
proceeding, Appellants= sought a variance from the setback requirements to obtain a
permit for the concrete planter wall.
       Appellants first argue that the concrete planter wall falls within an exemption (for
>fences=) from the definition of Astructure@ in the Zoning Bylaws, and that therefore no
zoning permit or variance is or was required for it. Under '302(b)(i) the Zoning Bylaws
require that a permit be obtained prior to new construction, relocation or substantial
improvement of Aany structure.@
       The term Astructure@ is defined in the Zoning Bylaws (Part V - Definitions) as:
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     The question of whether other permission may be required from the Town to place
the concrete planter wall within the road right-of-way is not before this Court in this
case.




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       Anything constructed, erected or placed and which requires a fixed location on the
       ground in order to be used. Included, in addition to buildings, are garages,
       carports, porches, patios, swimming pools and any other outbuildings and building
       features. Not included are signs, sidewalks, driveways, fences and temporary
       docks or floats.

       Zoning bylaws are to be construed most favorably to the property owner, as they are
in derogation of common law property rights. Appeal of Weeks, 167 Vt. 551, 555 (1998).
However, the court is equally bound by the plain language of the bylaw, if it can resolve an
apparent conflict without doing violence to intent of the bylaw. Id. at 554.
       The plain language of the definition of Astructure= is all-inclusive, except for a few
listed exceptions, as it includes anything and everything which meets the two criteria of
being Aconstructed, erected or placed@ and requiring Aa fixed location on the ground in
order to be used.@ Thus, plant materials including trees do not come within the term
Astructure@ and do not require a permit, no matter how substantial they may be. On the
other hand, patios and swimming pools, which are not buildings and which may or may not
extend above the ground level, but which are fixed on the ground, are specifically
mentioned as included within the concept of Astructure.@ Also included in the definition of
Astructure@ are Aany other . . . building features.@ Walls are a common building feature.
       Contrasted with the inclusive language of the main definition of Astructure,@ the only
exceptions to that definition are those specifically listed. That is, the exception provision
does not by its terms cover other structures similar to signs, sidewalks, driveways, fences
and temporary docks or floats. Appellants argue that the low concrete wall is instead an
exempt Afence2.@ However, the specific list of exceptions shows that the intent of the
bylaws was to make an exception for only these specific uses. If the intent of the bylaws
had been to exempt walls below a certain height, or to exempt garden or patio walls, they
could have been specifically listed. We must conclude that even though Appellants=
concrete planter wall may serve the same function as a guard rail or other reinforced fence,
it does not fall within an exception to the term >structure=, and therefore requires a permit.


   2
     The dictionary definitions of fence proffered by Appellants are of little help, since
they all define a fence as a structure, rather than as an exception to the term structure.


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       Appellants also argues that the concrete planter wall qualifies for a variance. In
order to qualify for a variance, Appellants must meet all five requirements of '305(e) of the
Zoning Bylaws. The property has the requisite physical conditions required by subsection
(1), in that is a preexisting small lot which is too shallow to meet both the roadside and the
lakeshore setbacks of the Zoning Bylaws. Allowing the wall to remain would not alter the
essential character of the neighborhood.            While the Town argued that the wall is
detrimental to the public welfare by posing a risk of serious damage to the very Aerrant
traffic@ from which Appellants seek to protect themselves, we cannot make that finding
from the evidence as presented to the Court, and therefore cannot conclude that the
property fails to meet subsection (4).
       However, the property fails to meet the three remaining requirements of '305(e). It
fails to meet subsection (2) because a reasonable use was being made of the property
from the time the house was built and hedge was installed in 1991. Appellants may prefer
the protection of the wall as opposed to that provided by trees or a guard rail in the same
location, but the wall is not necessary to enable a reasonable use of the property. Sorg v.
N. Hero Zoning Bd. of Adjustment, 135 Vt. 423, 426-27 (1977). The property fails to meet
subsection (3) in that Appellants replaced the cedars with the concrete planter wall rather
than replacing them with other more substantial trees or a guard rail to provide the desired
protection without the need for a variance.
       Finally, it fails to meet subsection (5) in that the variance, if authorized does not
represent the minimum variance that will afford relief and does not represent the least
deviation possible from the setback requirement of the Zoning Bylaws, both because the
wall is located eleven-and-a-half feet away from the front of the house, and could have
been located closer to the house and farther from the traveled portion of the road, and
because a fence or alternate tree plantings could have been installed which would not have
required a variance.
       Appellants= parcel fails to meet subsections (2), (3), and (5) of these five provisions;
therefore it fails to qualify for a variance.


       Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants=

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application for a variance is DENIED.


      Dated at Barre, Vermont, this 23rd day of February, 2000.




                                 ______________________________________
                                 Merideth Wright
                                 Environmental Judge




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