                                  STATE OF VERMONT


                               ENVIRONMENTAL COURT


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Appeal of T & M Construction & Development Corp.         }   Docket No. 172-10-03 Vtec
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                                   Decision and Order

       Appellant T & M Construction & Development Corp. appealed from a decision of

the Zoning Board of Adjustment (ZBA) of the Town of Swanton, denying Appellant=s

application for a variance from both side setback requirements for an existing narrow lot.

Appellant-Applicant is represented by Vincent A. Paradis, Esq.; Interested persons Lonija

Vitols, John F. McEnrue, John W. Kralik, David Reissig, Gene Prouty, Thomas K. Pierce,

Robert L. Barker and Carolyn Wheeler appeared and represented themselves. The Town

of Swanton did not enter an appearance in this appeal.

       An evidentiary hearing was held in this           matter   before Merideth Wright,

Environmental Judge.    A site visit was taken at the conclusion of the hearing with the

parties and their representatives. The parties were given the opportunity to submit written

memoranda and requests for findings. Upon consideration of the evidence, as illustrated

by the site visit, and of the written memoranda and requests for findings filed by the
parties, the Court finds and concludes as follows.

           Appellant-Applicant T & M Construction & Development Corp. owns a small parcel

of land, greater than an eighth of an acre in size, located on the shore of Lake Champlain

at 174 Maquam Shore Road (Vermont Route 36), in the Shoreland Recreation zoning

district of the Town of Swanton. The lot has existed in its present size and shape since

before the adoption of zoning in Swanton.            The lot is 43.7 feet in width at its road

frontage, tapering slightly to 42 feet at its lake frontage. Its northerly side lot line is 163

feet in length, and its southerly side lot line is 153 feet in length. It slopes gently from the

roadside elevation towards the lake, and then falls off abruptly to the lake elevation

approximately 322 feet from the lake.

           In the Shoreland Recreation zoning district (Table 2.2(E)(1)), an existing lot of

this size requires a 35-foot front setback from the street line, a rear setback1[1] of 20 feet,

and a 15-foot setback to each side. Distances on a lot are customarily measured in a

horizontal plane, for example, as specified in the Land Use and Development Regulations




    1[1]
            The setback exceptions for existing small lots in Table 2.2(E)(1) state that they apply

Anotwithstanding dimensional standards under subsection (D).@            Subsection D contains the

minimum front (75-foot), side (50-foot) and rear (50-foot) setbacks that would otherwise apply,

and also contains a minimum setback of 50 feet from Lake Champlain. In the present case, the

lot=s rear lot line is Lake Champlain. Appellant-Applicant proposes to meet a 20-foot setback to

the lake, under the exception in Table 2.2(E)(1) for the rear setback.
under the definition of the term Alot depth@ in Article 10.            Appellant-Applicant=s proposal

provides more than the required front setback of 35 feet and provides more than the

required rear setback of 20 feet.

           The lot is served by municipal water supply, and by an approved septic system with

sufficient capacity to serve a three-bedroom residence.              In 2002, Appellant received a

building permit to install a 12' x 68' single-family mobile home on the lot, oriented to

comply with all the required setbacks.

           Instead of installing the permitted mobile home on the lot, Appellant-Applicant has

applied in the present application for a variance of five feet on each side from the 15-foot

side setback applicable to this property, to construct a stick-built, wheelchair-accessible2[2],

single-family house on a 22' x 40' footprint. The house is proposed to be 22 stories in

height and to have three bedrooms.                 However, the exterior elevations, design or

appearance of the house, and particularly its height and appearance within the five feet of

side setback on each side for which the variance is sought (the >variance setback areas=),

was not proposed in this application nor presented in evidence.

           In order to obtain a variance any application must meet all five requirements of


    2[2]
             While Appellant-Applicant is correct that accessibility is a policy goal for both public and

residential buildings in Vermont (see 21 V.S.A. ''271 et seq. and '286), it is not required for

premanufactured homes. In addition, we note that residential entry stairs and ramps do not require

a zoning permit. '9.1(A)(2).
'9.4(A). Two of those five criteria for a variance, ''9.4(A)(1) and (3), are not at issue

in this appeal, as the ZBA found that they had been met and no party appealed.

However, the ZBA denied the variance based on the failure of the application to meet the

other three requirements for a variance, ''9.4(A)(2), (4) and (5), making those criteria at

issue in this appeal.

       The 8' x 40' recreational travel trailer now on the site is not designed for year-

round use, is not wheelchair-accessible, and is not permanently affixed to the real estate

or permanently connected to the municipal water supply or the on-site septic system.

Unlike a residential mobile home, it does not have or qualify for a federal Housing and

Urban Development certification that it is acceptable for residential use. The fact that this

recreational trailer will fit on the site without the need for a side setback variance therefore

does not demonstrate a reasonable use of the property without the need for a variance.

       Unlike the foundation proposed in the present application, the existing concrete pad

on which the recreational travel trailer is located does not follow the slope of the lot. Such

a pad would also be necessary to create a level surface for the placement of the approved

mobile home or any other prefabricated mobile home on the site. The concrete pad raises

the central portion of Appellant-Applicant=s lot above the ground level of the two lots on

either side of it, causing the potential for ground-level drainage onto the neighboring
lots.3[3] Appellant-Applicant proposes to remove the existing concrete pad and to reduce

the grade at both side setbacks to match the grade of the two adjacent properties, to

eliminate ground-level drainage onto the neighboring lots.

           However, Appellant-Applicant proposes a 22-story house, yet has not provided any

elevations, plan or roof design of a proposed building, although it is proposed to be two

stories high at the eaves within the side setback variance area, with a total height from 29

to 33 feet, and not more than the 35-foot height limit in the zoning regulations. Without

presenting evidence as to the roof orientation, type, and drainage, and as to the bulk of

the building, Appellant-Applicant has not met its burden of proof to show that the volume

or shape of the proposed house within the setback variance areas would not conduct

drainage of water onto the adjacent properties and thereby impair their appropriate use, or

to show that its bulk would not loom over the adjacent properties and thereby impair their

appropriate use and reduce their access to solar energy. Accordingly, the variance must

be denied, without prejudice, as Appellant-Applicant has not shown that it meets

'9.4(A)(4).




    3[3]
            Any damage from such drainage in the past is beyond the scope of this proceeding.
       That is, a house with the proposed footprint could be designed with a flat roof, or

with a peaked or gambrel roof aligned north to south with the drainage to the east and

west, or with a peaked or gambrel or A-line roof aligned east to west with the drainage to

the north and the south, or with a shed roof sloping and draining to the east. A house

with the proposed footprint also could be designed in any number of different ways, for

example so that it is as much as 22 stories high all the way out to the edge of the

footprint, with a flat or shed roof, or so that it is 22 stories at the center of a peaked or

gambrel or A-line roof and slopes down to a lower height within the setback variance

areas, or as a group of sections with a higher section nearer the road and one or more

lower sections nearer the adjoining houses. The drainage designed for a house with the

proposed footprint could result in drainage from the roof onto the adjacent properties, or

through gutters conducting drainage from the roof towards the lake, or even with a shallow

internal valley, rather than a peak, to conduct drainage without affecting the neighboring

properties.   Without a design to consider in relation to the variance criteria, the Court

cannot make a positive findings that it will meet the variance criterion regarding the effect

of the proposal on the neighboring properties. '9.4(A)(4)

       The available building envelope on the property, without a sideline setback variance,

would only allow construction of a 13-foot-wide house in the front of the lot, tapering to

approximately 12 feet wide at the rear of the lot (due to the tapered shape of the lot), or
the placement of a 12-foot-wide mobile home.4[4]          As these are the maximum exterior

dimensions without some variance, the interior finished width of even an open-plan space

would be only about 102 feet.            It is probable that some side setback variance is

necessary to make reasonable residential use of the property, whether for ramp landings

and a 14-foot-wide mobile home or for some design of stick-built home.               '9.4(A)(2).

However, based on the present evidence, Appellant-Applicant has not shown that the

requested variance is the minimum necessary to obtain relief, and particularly has not

shown that a two-story height within the setback variance area is necessary. '9.4(A)(5).




    4[4]
           The current standard residential pre-manufactured mobile home has a uniform width of 14

feet and is not commonly designed with an accessible interior.
        The property adjacent to Appellant-Applicant=s property to the north, at 170

Maquam Shore Road, contains a stick-built, year-round single-family residence.      A shed

extends into the side setback adjacent to Appellant-Applicant=s property.     The property

adjacent to Appellant-Applicant=s property to the south, at 178 Maquam Shore Road,

contains a concrete-block, year-round single-family residence.     A preexisting garage is

located within the side setback adjacent to Appellant-Applicant=s property and partially

screens the 178 Maquam Shore Road house from Appellant-Applicant=s property,

depending on the height, design and orientation of the house that would be built within the

proposed footprint.

       Many of the other properties along Maquam Shore Road in the area are relatively

small lots containing at least existing accessory structures extending into the sideline

setback area.   Of the 141 lots on Maquam Shore Road for which data was presented,

Appellant-Applicant=s lot is the third smallest lot. Of the 21 lots closest to the property,

Appellant=s lot is the smallest lot. On some of those lots, some of the existing houses do

not meet the setback requirements. There are no mobile homes within the 21 closest lots.

The characteristic housing types in the neighborhood are predominantly stick-built or

concrete block year-round or seasonal (camp) residences of one or two stories.

       Depending on the design and height of the proposed structure and especially the

height within the side setback variance areas, it is possible that the requested variance
would not alter the essential character of the neighborhood if the height at least within the

side setback variance areas did not exceed a single story, and if the bulk or volume of the

remainder of the house were designed so as to be compatible with the other neighborhood

houses and camps. An appropriately-designed and -sized stick-built house might be as or

more compatible with the character of the neighborhood than a mobile home, even though

a 14-foot-wide mobile home with its associated ramps and landings would occupy a

smaller volume of the setback variance area. However, without a design and elevations

for a proposed structure within the proposed footprint, the Court cannot find that the

proposed setback variance will meet '9.4(A)(4).
      Based on the foregoing, it is hereby ORDERED and ADJUDGED that the variance

requested by Appellant-Applicant is DENIED, without prejudice to any future application

showing the design or height of the proposed structure within the requested variance

setback area, so that the potential effect of the proposal on the appropriate use or

development of adjacent property and the other requirements of ''9.4(A)(2), (4) and (5)

could be evaluated.




      Dated at Berlin, Vermont, this 8th day of August, 2005.




                                 ______________________________________
                                 Merideth Wright
                                 Environmental Judge
