                                    STATE OF VERMONT

                                ENVIRONMENTAL COURT

               In re: Appeal of Allen           }
               Mulheron                         }
                                                } Docket No. 172-8-00 Vtec
                                                }
                                                }



               Town of Highgate, Plaintiff,     }
                                                }
               v                                } Docket No. 217-9-00 Vtec
                                                }
               Allen Mulheron, Defendant.       }



   Decision and Order on Appellant= s Motion for Summary Judgment and Motion to Amend
                                          Answer

In Docket No. 172-8-00 Vtec, Appellant Allen Mulheron appealed from a decision of the Zoning
Board of Adjustment (ZBA) of the Town of Highgate, denying his appeal of a notice of
violation, his request for a stay of enforcement, and his request for a variance from the front
setback requirements. In Docket No. 217-9-00 Vtec, the Town has filed an enforcement action to
enforce the front setback requirements. Appellant is represented by Michael S. Gawne, Esq.; the
Town is represented by David A. Barra, Esq.; Interested persons Lee and Lori Olds and Davey
and Katherine LaFar, who own Lots 4 and 5 in the so-called Misty Meadows subdivision, have
entered their appearance and represent themselves. Appellant and the Town have moved for
summary judgment on Question 1 of the Statement of Questions: the method for measuring the
front setback.

The following facts are undisputed unless otherwise noted.

Appellant obtained subdivision approval in 1995 for a six-lot subdivision known as Misty
Meadows. The subdivision is served by a 50-foot-wide right-of-way, ending in a 110.8-foot-
diameter cul-de-sac providing access from the lots to Carter Hill Road. According to the
subdivision plan, the right-of-way was to be deeded to the Town. No facts have been presented
as to whether the right-of-way has been deeded to the Town, and whether it was deeded in fee or
as an easement interest. The property is in the Agricultural zoning district, in which the
minimum front setback is 60 feet.

Appellant owns Lot 6 in the subdivision, which according to the subdivision plan has 234.69 feet
of frontage on the right-of-way and 23.17 feet of frontage along the curve of the cul-de-sac.
Appellant constructed or placed a single family home on Lot 6. The Zoning Administrator= s
measurements are that the house is located 40 feet from the edge of the straight portion of the
right-of-way, and 53 feet from the traveled portion of the right-of-way.

Appellant argues that the measurement should be made from the edge of the traveled portion of
the right-of-way, but also contests the Zoning Administrator= s measurement method for locating
the edge of the right-of-way, arguing that the Zoning Administrator measured outward from the
centerline of the traveled portion. As, in the present case, a survey was made and recorded in
connection with the subdivision permit, the measurements should be made using the surveyed
right-of-way, not an assumed right-of-way location. We expect that the parties will submit an
agreed copy of the subdivision survey in evidence for the remainder of the merits hearing, and
that they will be able to locate the as-built location of the house on that survey.

The Zoning Bylaws define > setback= in pertinent part as A [t]he nearest distance between a
building face and a street line or a property line.@ The Zoning Bylaws define > street= as a road,
but do not define > street line.= In turn, the Zoning Bylaws define > road= as A including streets or
right of ways.@

The definition of the term > setback= is used in addressing not only the front setback, but also the
rear or side setbacks, which must necessarily be measured to the private property line when the
side or rear of a property does not adjoin a street. Reading the Zoning Bylaws1 as a whole, the
only interpretation of A street line@ that is consistent with establishing a building setback is the
edge of the street right-of-way. If the setback were to be measured from the edge of the traveled
way, then the allowed setback on a particular road or street would vary over time, as the road
was improved or widened. That interpretation would permit the installation of nonconforming
buildings, contrary to the purposes of zoning.

Accordingly, based on the foregoing, the Town= s Motion for Summary Judgment is GRANTED
and Appellant= s Motion for Summary Judgment is DENIED: The front setback is measured to
the edge of the road right-of-way. However, we note that the edge of the road right-of-way is to
be measured from its surveyed location, and not an assumed location relative to the traveled way.

Appellant also moved in Docket No. 217-9-00 Vtec to amend his answer to add a defense of A
insubstantial violation.@ That motion does not appear to have been docketed and so was not
brought to the attention of the Court. It is hereby granted.

We will hold a telephone conference on May 4, 2001, at a time scheduled in the enclosed notice,
to discuss what remains for the trial on the merits of these matters, and to schedule that trial. If
the Olds and LaFars wish to participate, they should be available at a single telephone number;
please advise the Court on or before May 2, 2001 of the number at which you wish to be
reached.

Done at Barre, Vermont, this 23rd day of April, 2001.
___________________
Merideth Wright
Environmental Judge



                                           Footnotes
1.
     Or at least those portions of the Zoning Bylaws supplied to the Court.
