                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

                Appeal of Waters                 }
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                                                 }     Docket No. 186-10-03 Vtec
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                  Decision and Order on Cross-Motions for Summary Judgment

Michael Waters appeals from the September 21, 2003 decision of the Zoning Board of
Adjustment (ZBA) of the Town of North Hero, granting approval to Kenneth and Teresa
Kajenski to modify their residential dwelling by adding a second story and a basement. The
parties each move for summary judgment. Appellant Michael Waters represents himself;
Appellee-Applicants Kenneth and Teresa Kajenski (Applicants) are represented by Ronald A.
Shems, Esq.; and the Town of North Hero is represented by Richard C. Whittlesey, Esq. The
following facts are undisputed unless otherwise noted.

Applicants own a small trapezoidal parcel of property located at 6798 U.S. Route 2 in the Town
of North Hero. Route 2 is the western boundary of the property and Lake Champlain is its
eastern boundary. Appellant owns the abutting property to the north.

A 24' x 36' house has been located on Applicants= property since approximately 1963, prior to
the enactment of the Town= s first zoning bylaws in 1972. In 2000 a variance was issued by the
ZBA allowing the addition of a 14' x 36' deck on the east side of the house, facing the lake. The
variance decision was not appealed, became final, and is not at issue in this appeal; the deck was
built in 2001.

The house is located in the northwestern corner of Applicants= lot, at an angle to Route 2 and to
Appellant= s property line. Based on the diagram in the application, it is oriented so that its front
(west) side is located at a distance of from 39 feet to 49 feet from Route 2, and its north side is
located at a distance of from 172 feet (at its northwestern corner) to 42 feet (at the northeastern
corner of the deck) from Appellant= s property line. Due to this orientation, the northwestern
corner of Applicants= house is located, at its closest point, approximately 40 feet from Appellant=
s house.

Applicants= house is therefore a preexisting, non-complying structure, because it is located closer
to Route 2 than the 100-foot setback required by ' 402 and because some portion of the house is
located closer to Appellant= s property line than the 25-foot side setback required by ' 402.
Applicants= lot is also non-complying in that it is smaller than the minimum lot size required for
the district.

Due to the limitations of the soils found in the area, the leach field for the septic system serving
Appellant= s house is located in the southwest corner of Appellant= s front yard, adjacent to
Applicants= property, and extends into the side yard area between Appellant= s house and a shed
located on Appellant= s property near the property line. Appellant is concerned that the proper
functioning of his leach field is dependent on evaporation from it, which, in turn, is assisted by
sunlight falling on the surface of the ground above the leach field, and that any additional height
on Applicants= house would block the sunlight now able1 to fall on his leach field.

The Zoning Bylaws provide for one type of permit (referred to in the bylaws as a A Building
Permit,@ A Land Use Permit,@ or simply A Permit@ ) to be issued by the Zoning Administrative
Officer (Zoning Administrator) under ' 225, upon a determination that the proposal complies
with the bylaws. Under ' 227, if a proposed use or structure requires a Conditional Use Permit,
the Administrative Officer is prohibited from issuing the ' 225 Permit until the ZBA first grants
conditional use approval. Under ' 227(E), A [a]ny proposed Conditional Use shall not adversely
affect [. . . ] [u]tilization of renewable energy resources.@ Thus, if conditional use approval were
required for Applicants= proposal, the ZBA (and hence this court on appeal) would have to
consider whether and to what extent the proposal would block sunlight that otherwise would fall
on Appellant= s property.

The distinction between a permitted use Permit issued by the Administrative Officer under ' 225
and a Conditional Use Permit or approval issued by the ZBA under ' 227 is reflected in two
subsections of ' 275 which address additions to non-complying buildings and structures. Section
275(B) provides that:

[v]ertical additions to non-complying buildings and structures may be allowed by Permit as long
as the additions do not extend horizontally beyond the outside walls enclosing the original
building, or beyond the perimeter of the original structure.

By contrast, an applicant may still apply for an addition that does not qualify under ' 275(B), but
such an application must go before the ZBA for conditional use approval under ' 275(C), which
provides that:

[a]dditions to any non-complying building or structure which was in existence prior to the
adoption of Zoning Regulations in North Hero (February 1, 1972) may be allowed by
Conditional Use Permit. No portion of any addition can project further into a required setback
than the existing building projects. The maximum area of any such addition cannot exceed the
greater of 120 sq. ft. or 10% of the building area.

In 2003, Applicants filed an application to the ZBA to add a second story and a basement to their
existing residential dwelling. On the application, a check was placed next to A Conditional Use
permit or Change of Conditional Use permit,@ however, the application also stated that the A
provision of the zoning ordinance in question@ was ' 275(B). Section 275(B) requires only a
zoning permit from the Administrative Officer, not Conditional Use approval from the ZBA.

Applicants propose to add a second story to their existing house, raising the height of the house
to less than thirty feet at the peak, in compliance with the height limitation of ' 322. The
proposed second story is designed to be wholly within the perimeter of the existing structure,
simply raising the roof to add the second story. The second story as proposed includes an
unroofed open deck area in the center of the second story, within the perimeter of the existing
structure. A separate balcony, projecting less than four feet from the house wall, is proposed to
run along the length of the second story, on the east side of the house facing the lake.

Applicants also propose to construct a basement above 102 feet in elevation. However, the
application stated that if the basement were to extend below 102 feet in elevation, it would be
flood proofed to meet the requirements of ' 370 of the Zoning Bylaw, containing the Flood Plain
Regulations.

A hearing before the ZBA was set for September 18, 2003. Notice of the hearing appeared in the
local paper, A The Islander,@ on September 2, 2003. The notice stated: A Hearing: Application
#8943-C, applicants Kenneth & Teresa Kajenski, tax map # 05-01-51, located on US Rte 2, is
seeking to replace the foundation, add second floor and deck to an existing dwelling.@ Notice of
the hearing was also posted in the town. Adjacent property owners, including Appellant, were
notified by regular mail of the application and the time and date of the ZBA hearing. Appellant
asserts that he received the notice approximately five days prior to the September 18, 2003
hearing. He attended the meeting and expressed his concerns regarding the potential for loss of
privacy and sunlight, his views, blocking of air currents, Applicants= fence, and the potential for
additional noise from additional occupants and their watercraft.

At the September 18, 2003 ZBA meeting, all seven board members were present and voted
unanimously to approve Applicants= application. The September 21, 2003 written decision stated
that, A [b]y action of the majority of the Board of Adjustment, it is found that the activity is
permitted.@ The decision granted approval for the proposed project under ' 275(B), and required
that A [a]ny horizontal construction beyond the existing footprint must comply with Section 401@
and that A [i]f the basement is to be constructed at less than 102 feet of elevation, it must be
constructed in compliance with Flood Plain Regulations, see Section 370.@ The decision was
signed by Edward W. Porter, ZBA Co-Chair.

Question 1 of Appellant= s Statement of Questions claims that the ZBA= s written decision is
defective A because it wasn= t physically signed by a majority of the North Hero Board of
Adjustment.@ In this case, all seven board members were present and voted on Applicants=
application at the September 18, 2003 ZBA meeting. The minutes reflect that the roll-call vote to
approve was unanimous. Thus, the ZBA met the majority requirement and the procedures
outlined in 24 V.S.A. ' 4464(a).

The written decision stated that the conclusion was reached by A action of the majority of the
Board of Adjustment.@ The written decision was signed by one of the two co-chairs of the ZBA.
The chairman or vice chairman of a board is authorized by statute to sign a decision that has been
approved for issuance by the board, when such decision is required to be in writing. 24 V.S.A. '
1141. Thus, the lack of the signatures of the other members of the ZBA does not render the
written decision defective.

Questions 2, 3 and 5 relate to whether the Town provided proper notice of the ZBA hearing on
Applicants= application. Questions 2 and 3 claim that the approval should be voided A because
appellant had no prior knowledge of the case to be heard and where the town did not share
details of the submitted proposal so that appellant could prepare and argue his case,@ and because
the notice of hearing A did not indicate that the hearing involved either a Conditional Use or
Variance review.@ Question 5 inquires whether the Town A has a responsibility to make a citizen
aware that a neighbor applied for a permit . . . so that the citizen may visit the town office and
see what it= s all about, prior to being called to a ZBA hearing where a final decision is made
without further review.@
