                                     STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Appeal of Mutchler & Canning }
                                            }         Docket No. 134-8-03 Vtec
               Appeal of Mutchler, Canning &}
               Wilkins                      }         Docket No. 260-11-02 Vtec
                                            }

                                        Decision and Order

Appellants William Mutchler and Crystal Canning appealed in Docket No. 134-8-03 Vtec from a
decision of the Zoning Board of Adjustment (ZBA) of the Town of Burke, granting the
application of Scott and Mildred Chappell for a variance1 for a building to house a business
office, storage and carpentry shop on an existing small lot. In Docket No. 260-11-02 Vtec,
Appellants Mutchler and Canning (and an additional appellant, Brenda Wilkins), had appealed
from the grant of an earlier variance application for the same property.

Appellants are represented by Robert R. Bent, Esq.; Appellee-Applicants Scott and Mildred
Chappell are represented by Peter J. Morrissette, Esq. (when used in the singular, Appellee-
Applicant refers to Mr. Chappell); and the Town of Burke is represented by Jill L. Broderick,
Esq. An evidentiary hearing was held in this matter before Merideth Wright, Environmental
Judge, who also took a site visit alone, by agreement of the parties. The parties made oral
argument on the record. Upon consideration of the evidence, the site visit, and the argument of
the parties, the Court finds and concludes as follows.

Appellee-Applicants Scott and Mildred Chappell own a small (approximately .37-acre) and
narrow piece of property between Kirby Road and Dish Mill Brook, in the Town of Burke. It is
bounded on the east by property of Norcross, on the north by the brook, and on the south and
southwest by the road, which curves around to meet the brook at the most westerly point of the
property just before a bridge over the brook. After a proposed property line adjustment between
Appellee-Applicants and Norcross to conform the road frontage of the property to language in a
deed, the property will be smaller in size, but will continue to exceed an eighth of an acre.

The property contains a dilapidated shop building, originally a blacksmith's shop, located very
near to both the stream and the road, near the bridge. In its present condition it poses a hazard to
passers by and may collapse into the stream or the road if left in its present location. It has been
abandoned for a longer period of time than would allow its reconstruction under the provisions
of Article 4 of the Zoning Bylaws, but in any event Appellee-Applicants do not wish to build in
the same location.

The property qualifies as an existing small lot under the zoning regulations, and may be
developed for any purpose otherwise allowed for the property, despite lacking the minimum lot
area or width. § 301. We note that this section only provides an exception for the minimum lot
area and width. That is, any proposal must otherwise qualify for approval under all the other
dimensional and use requirements of the regulation, or must receive a variance. In order to build
in the location in which Appellant-Applicants wish to build, they require a variance from the
front, side and rear setback requirements of the Zoning Bylaws. They propose a 35-foot setback
from the centerline of the road in the front, a 25-foot setback from the rear lot line (which is the
edge of the stream) at one corner of the proposed building, and at least a 25-foot setback from
the easterly (Norcross) property line (after the boundary adjustment, or 60 feet if the boundary
adjustment does not occur). The setback distance that would otherwise be required depends on
the use of the property. The actual proposed use of the property appears to be closest to that of a
home occupation (an office and workshop for Appellee-Applicant's own carpentry and general
contractor business), except that the property is unable to be developed for a dwelling. The
proposed use of the building is most closely categorized either as an office with accessory shop
and storage, or as a very small light industry use with an associated office and storage.

If the property could be developed with a dwelling, only the front setback variance would be
required. However, the limiting factor for its development for a dwelling is an area capable of
disposing of at least 420 gallons per day in on-site septic disposal. After applying the 50-foot
stream setback and the 50-foot water line setback to the septic system (required by state
regulations), an area suitable for the disposal of only approximately 60 to 90 gallons per day is
available on the property. This amount is suitable for a business office or workshop only
occupied for work on an 8-hours-per-day basis, by no more than approximately four people.

The neighborhood is basically residential with a number of home occupations. The neighboring
property has a general contractor's workshop in a garage building. Appellee-Applicant proposes
to build a two-story shop, storage and office building, having the appearance of a residential
building. The shop portion of the building is 24 feet wide and 32 feet in depth, with sliding doors
on the front and back walls to allow for handling oversize lengths of lumber. The remainder of
the ground floor of the building is designated for storage and a half bathroom (toilet and sink
only), set back behind a front porch. The upstairs of the building has an office above the shop,
and additional storage and another half bath. Appellee-Applicant only expects to be using the
shop portion of the building once or twice a week, as an adjunct to his contracting and carpentry
business, not as a separate fabrication business. Most of Appellee-Applicant's fabrication work is
done at the job site, but Appellee-Applicant proposes to furnish the shop with appropriate
machinery to allow him to cut and custom-mill the lumber necessary for his carpentry jobs.
Appellee-Applicant proposes to operate machinery within the shop from as early as 7 a.m. to as
late as 5 p.m. on weekdays, and to use the office at the property as well in the evenings.
Appellee-Applicant was not sure whether Saturday operation would occur either for the shop or
the office use.

In order to qualify for a variance, Appellee-Applicant must meet all five requirements of § 806
of the Town of Burke Zoning Bylaws:

(1) That there are unique physical circumstances or conditions, including irregularity,
narrowness, or shallowness of a lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property, and that 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;
(2) That because 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;

(3) That the unnecessary hardship has not been created by the appellant;

(4) That 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, nor be
detrimental to the public welfare; and,

(5) That the variance, if authorized, will represent the minimum variance that will afford relief
and will represent the least deviation possible from the zoning regulation and from the plan.

Appellee-Applicants' property meets all of the standards for issuance of a variance from the
setback requirements. It is unusually narrow and small, and is further constrained by its location
between the brook, the road, and the bridge. The hardship inherent in its shape and size was not
created by Appellee-Applicants. The property cannot be developed in strict conformity with the
zoning bylaws and cannot be developed for a dwelling, which would only have required a front
setback variance. It could not be used for a farm stand as that would have much more traffic than
the proposed use. The requested variance is therefore the minimum necessary to make a
reasonable use of the property, and the least deviation from the zoning bylaws. The requested
variance will not alter the essential character of the area or impair the use of neighboring
property, or reduce access to renewable energy resources or be detrimental to the public welfare,
as the proposal also requires conditional use approval, and suitable conditions could be imposed
to limit the use of the property to the equivalent of that allowed for a home-occupation-type of
office and shop, consistent with other neighborhood uses.

Appellants are concerned that noise from the machinery will disturb their enjoyment of their
residence, which is located across the street and directly uphill from the property. Over the
longer term, they are concerned that the use could expand on the property to be a full-fledged
industrial use with too much traffic and noise for this neighborhood. These are concerns that
could be addressed with appropriate conditions in a conditional use proceeding, such as
conditions that would restrict the use of the property to that accessory to Appellee-Applicant's
business and appropriate for a home occupation in a residential neighborhood, including
limitations on the number of employees, the hours of operation of the shop machinery, or
requirements that the shop doors be closed during machinery operation except as necessary to
handle oversized lumber. Any expansion of the conditional use beyond those limitations would
then have to be the subject of a future amendment application under whatever zoning bylaws are
in effect at that future time.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-Applicants'
application for a variance from the front, side and rear setbacks is GRANTED.
Because Appellee-Applicants' application did not check "conditional use" and because the public
hearing was not warned as a conditional use application and because the ZBA did not rule on
conditional use approval, this Court cannot rule on conditional use approval. They are free to
apply to the ZBA for that approval. However, if the ZBA's ruling on conditional use approval is
again appealed, we will waive the filing fee, will expedite the consideration of the case and, if no
other parties come into such appeal, will determine whether the parties wish the Court to rule on
that appeal on the basis of the evidence already taken in the present appeals, together with any
supplementary evidence, to avoid unnecessary duplication of effort.

Dated at Barre, Vermont, this 9th day of September, 2004.




______________________________________

Merideth Wright

Environmental Judge



                                             Footnote
1.
     The application form requires an applicant to select either ‘variance’ or ‘conditional use’
and does not provide for an application for both, although in the present case Appellee-
Applicants needed both a setback variance and conditional use approval, and it would have been
much more efficient for the ZBA to have considered the application under both the variance
standards and the conditional use standards.
