                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                          }
In re: Dufault Variance Application       }       Docket No. 287-12-07 Vtec1
        (Appeal of Dufault)               }
                                          }

                  Decision and Order on Motion for Summary Judgment


        Appellants André and Madeline Dufault appealed from a second decision of the

Development Review Board (DRB) of the Town of St. Albans, issued after remand,

denying Appellants’ variance application. Appellants are represented by Michael S.

Gawne, Esq., and the Town of St. Albans is represented by David A. Barra, Esq.

        Issues of deemed approval were addressed by summary judgment, and

Appellants have now moved for summary judgment on Question 3 of their Statement

of Questions, requesting the Court to strike that portion of the St. Albans Town Zoning

Ordinance requiring ten feet of separation between a principal and an accessory

structure in order for an accessory structure to qualify for a reduced setback. The

following facts are undisputed unless otherwise noted; the description of the property

and its development history already stated in the August 4, 2008 Decision and Order

will be reiterated only as necessary to this decision.

        In the Lakeshore zoning district, the dimensional requirements for the yard2

setbacks distinguish between the setback applicable to a principal structure, which is 25

feet, and that applicable to an accessory structure, which is 15 feet. Zoning Bylaws and

Subdivision Regulations, § 315(3). The term “accessory structure” is defined in Part V,

Definitions, as being “incidental and subordinate to” the principal structure.       The


1
    Please note that this is the correct docket number, not 129-6-07 Vtec.
2   That is, other than the setbacks to a road and to the mean water mark.
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examples in the definition include “detached garages,” suggesting that attached garages

would be considered to be part of the principal structure.

       Note 2 to the dimensional requirements in § 315(3) provides in full as follows:

               In order to qualify for the accessory structure yard setback of 15
       feet, there has to be 10 feet [of] separation between the closest parts of the
       principal and the accessory structures. If the structures are less than ten
       feet apart, then the yard setback for a principal structure is to be applied
       to the accessory structure as well.
       Appellants argue that this disparate treatment is not supported by

“considerations of public health, safety, morals, or general welfare,” and is not

supported by the purposes in the enabling legislation: 24 V.S.A. § 4302(a).

       Although any ambiguity in a zoning ordinance is to be decided in favor of the

landowner because zoning ordinances are in derogation of the common law, In re

Appeal of Weeks, 167 Vt. 551, 555 (1998) (citing In re Vitale, 151 Vt. 580, 584 (1989)), no

ambiguity presents itself in the ordinance section at issue in the present case. Rather,

Appellants argue that the quoted section of the ordinance is unconstitutional as being

clearly unreasonable, irrational, arbitrary and discriminatory, and that the Court should

declare it to be invalid. See, e.g., In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶ 13–14,

17; McLaughry v. Town of Norwich, 140 Vt. 49, 54–56 (1981).

       Zoning bylaws are presumed to be valid, and thus will not be overturned by

courts unless the bylaw at issue “’clearly and beyond dispute is unreasonable,

irrational, arbitrary or discriminatory.’” In re Appeals of Letourneau, 168 Vt. 539, 544

(1998) (quoting City of Rutland v. Keiffer, 124 Vt. 357, 367 (1964)); see McLaughry, 140

Vt. at 54. Zoning ordinances are construed according to the same rules that are used to

interpret statutes. In re St. Mary’s Church Cell Tower, 2006 VT 103, ¶ 4, 180 Vt. 638

(mem.) (citing In re Nott, 174 Vt. 552, 553 (2002) (mem.)).

       The parties do not claim that any fundamental right or suspect class is involved

in this argument. In the absence of a fundamental right or suspect class, “challenges

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under the equal protection clause are reviewed by the ‘rational basis’ test.” Colchester

Fire Dist. No. 2 v. Sharrow, 145 Vt. 195, 198 (1984) (citing Pabst v. Comm’r of Taxes, 136

Vt. 126, 132–33 (1978)).    If there is a rational basis for the distinctions, serving a

legitimate policy objective, there is no equal protection violation. State v. Stewart, 140

Vt. 389, 402 (1981) (citing State v. Carpenter, 138 Vt. 140, 142–43 (1980)). “In applying

this standard, we must look at any of the purposes that are conceivably behind the

statute.” Smith v. Town of St. Johnsbury, 150 Vt. 351, 357 (1988) (citing State v. Stewart,

140 Vt. at 402).

       Due to the presumption of constitutionality, that is, the presumption that the

legislative body has not acted unreasonably or without purpose, Andrews v. Lathrop,

132 Vt. 256, 259 (1974), the Court must “uphold the classification if we can conceive of

any reasonable policy or purpose for it.” M.T. Assocs. v. Town of Randolph, 2005 VT

112, ¶ 12, 179 Vt. 81 (citing Hoffer v. Dep’t of Taxes, 2004 VT 86, ¶ 10, 177 Vt. 537

(mem.)). It is not a question of whether an explicit purpose statement in the ordinance

supports the classification, but whether the classification “serves any legitimate purpose

that is conceivably behind the statute.” See Quesnel v. Town of Middlebury, 167 Vt.

252, 257 (1997) (citing State v. Stewart, 140 Vt. 389, 402 (1981)). As long as the court can

conceive of a possible rational basis for a legislative distinction, the classification should

be upheld. See Smith v. Town of St. Johnsbury, 150 Vt. 351, 359 (1988).

       Regardless of whether the distinction in the ordinance should have been applied

to Appellants’ case, or whether the existing layout of Appellants’ property became

grandfathered as nonconforming when the property was internally subdivided, there is

an evident rational basis for the distinction between accessory structures that are

attached or very close to the principal structure, and those that are more than ten feet

from the principal structure.

       By definition, an accessory structure and the use it houses (for example, a garage

or storage shed) is “incidental and subordinate to” the principal structure and use, and
                                              3
therefore can be expected to be less obtrusive to the neighbors. Appellants do not

contest that it is rational to require a larger setback for a principal structure (for

example, a residence) than for an accessory structure (for example, a detached garage or

storage shed). Appellants also do not claim that it is irrational to require an attached

addition to the principal structure, such as a porch or a deck, to be held to the same

setback requirements as the principal structure.

         A conceivable rational basis for the contested distinction is to prevent persons

from achieving a reduced setback for a series of additions to a principal structure that

would not have been allowed if the additions had all been built or proposed at the same

time. That is, it is rational for the Town to seek to preclude landowners from first

building a house and a detached garage with the reduced setback, and then later

building a connecting segment between the two, thereby effectively avoiding the full

setback requirement for additions to the principal structure. The selection of ten feet of

separation is also a rational choice, as it represents the additional setback that otherwise

would have been required on the boundary side of the accessory structure, that is, if the

principal and the accessory structures had been built as attached structures in the first

place.

         Of course, there are other ways in which the zoning ordinance could have

achieved this same goal.       But the test for constitutionality is whether there is a

conceivable rational basis for the distinction, not whether the ordinance is the ideal way

to achieve the intended result. In re Appeals of Letourneau, 168 Vt. 539, 544 (1998).



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

that Appellants’ Motion for Summary Judgment is DENIED, Summary Judgment is

GRANTED to the Town on Question 3 of the Statement of Questions. A telephone

conference has been scheduled (see enclosed notice) to discuss the issues that remain in

the case, and whether an evidentiary hearing should be scheduled. Please also be
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prepared to discuss the issues raised in footnotes 1 and 2 of the August 4, 2008 Decision

and Order.



      Done at Berlin, Vermont, this 18th day of March, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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