                                  STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                          }
In re: Swierz Loft Addition               }       Docket No. 84-5-08 Vtec
In re: Swierz Enclosed Porch Addition     }       Docket No. 88-5-08 Vtec
        (Appeals of Supeno and Ernst)     }
                                          }

                 Decision and Order on Motion for Summary Judgment

       Appellants Barbara Supeno and Barbara Ernst appealed from decisions of the

Development Review Board (DRB) of the Town of Addison, approving additions to an

existing building as conditional use review under §§ 3.7(B)(3) and 5.7 of the Zoning

Regulations, and that no variance was required for either addition. Appellants are

represented by Vincent A. Paradis, Esq. and Chad V. Bonanni, Esq.; Appellee-

Applicants Gregory Swierz and Joanne Swierz have appeared and represent

themselves; the Town is represented by Donald R. Powers, Esq.; and interested parties

Roger Sleeper, Jack Anderson and Louisa Anderson have appeared and represent

themselves.   Appellants have moved for summary judgment on Question 2 of the

Statement of Questions as to whether a variance is required for either application.

       In the entry order dated October 13, 2008, the Court asked for additional briefing

to explain the parties’ positions as to the location of the front setback line. With respect

to any new construction within the setback areas, that entry order asked the parties to

address the concept that increases in height within the setback area represent an

increase in the degree of noncompliance of the noncomplying structure, as discussed in,

e.g., the following cases and cases cited therein: In re Snelgrove Permit Amendment,

No. 25-1-07 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. July 18, 2008) (increase in volume of

noncomplying structure within required setback area); In re Bloch Occupancy Permit,

No. 94-5-05 Vtec, slip op. at 1–2 (Vt. Envtl. Ct. Oct. 24, 2005) (additional height within
                                              1
setback); Appeal of Barnes, No. 154-8-04 Vtec, slip op. at 6–7 (Vt. Envtl. Ct. May 18,

2005) (additional height added to pre-existing noncomplying structure within setback);

see In re Appeal of Dunnett, 172 Vt. 196, 202–03 (2001) (affirming denial of enlargement

of portion of building within side setback area under nonconforming structure

provisions of bylaw); In re Appeal of Tucker, No. 123-7-98 Vtec (Vt. Envtl. Ct. Aug. 2,

1999); aff’d No. 1999-399 (Vt., Mar. 10, 2000) (unpublished mem.) (three-justice panel)

(permit allowing one-story building extending into side setbacks does not authorize

expansion to two stories).

      Appellants and Appellee-Applicants appear to agree that the 75-foot front

setback is to be measured from the centerline of the private right-of-way serving the

property, even though the property does not appear to have any frontage along that

right-of-way, but instead appears only to have a driveway leading from that right-of-

way onto Appellee-Applicants’ property.           The Town has not provided any

interpretation of its Zoning Regulations on this point.      The source of this setback

requirement is unclear to the Court from the Zoning Regulations; the parties should be

prepared to address whether the property has any frontage, and therefore has a front

setback area, or whether it has only side, rear and shoreline setbacks, if it has no

frontage on a private or public road or right-of-way.

      From the diagrams most recently submitted by the parties, it appears that in the

area of the Swierz driveway, Appellants are measuring the 75-foot setback from the

point at which the Swierz driveway crosses the Swierz property line, and not from the

centerline of the private right-of-way, while Appellee-Applicants, on the other hand, are

measuring the 75 foot setback from the centerline of the right-of-way without regard to

the driveway. In the area to the west of and including the southerly corner of the

Swierz house, material facts are disputed as to the measurement from the right-of-way

to the property line, and from the right-of-way to the corner of the house.


                                            2
      Summary judgment must be denied, as material facts are in dispute as to the

location and extent of the required setback, although it appears to the Court that the

measurements from the centerline of the right-of-way to the corner of the Swierz house

should be capable of being ascertained. However, for the guidance of the parties in

their scheduled mediation, if no parts of the horizontal or vertical additions extend into

a required setback, then, as the existing structure is noncomplying, the enlargements

only require conditional use approval under § 3.7(B)(3), and do not require a variance.



      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellants’ Motion for Summary Judgment is DENIED.



      Done at Berlin, Vermont, this 29th day of October, 2008.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




                                            3
