                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

                In re: Appeals of Christopher      }
                Denio                              }
                                                     Docket Nos. 159-8-00 Vtec
                                                   }
                                                     and 250-11-00 Vtec
                                                   }
                                                   }



                                        Decision and Order

   Appellant Christopher Denio appealed from two decisions of the Zoning Board of Adjustment
(ZBA) of the Town of Bennington, one denying his application to amend his zoning permit and
the other upholding a notice of violation regarding the same property.

   Appellant is represented by Alan B. George, Esq.; the Town of Bennington is represented by
Robert E. Woolmington, Esq. An evidentiary hearing was held in this matter before Merideth
Wright, Environmental Judge, who also took a site visit with the parties. The parties were given
the opportunity to submit written requests for findings and memoranda of law. Upon
consideration of the evidence, the site visit, and the written memoranda and proposed findings,
the Court finds and concludes as follows.

   Appellant owns a 106-acre parcel of property on the western slope of the Green Mountains,
with access from Chapel Road through an existing gravel bed area by a gravel driveway. A
portion of the property lies in the RR-80 zoning district, but the area above 1200' elevation lies in
the Forest zoning district. The site of the residential building at issue in these appeals lies in the
Forest zoning district, approximately 200 feet from the border of the Town of Shaftsbury1.

   Under the Zoning Bylaw in effect in 1992, the only private residential use allowed in the
Forest zone was a private recreational camp, allowed as a conditional use under ' 5.22. A A
camp@ is defined in ' 1.3 of the Zoning Bylaw as A a building, not exceeding 800 s[quare] f[eet]
building area and 20 feet building height, having no permanent foundation. In turn, A building
area@ is defined in ' 1.2 as A the ground area enclosed by the walls of a building, together with
the area of all covered porches and other roofed portions.@

   In addition to the general conditional use standards of ' 3.4(3), the following specific
requirements apply to such uses under ' 5.22, among others not at issue in these appeals:

 that the building not be used as a primary or secondary residence, but used occasionally for
 temporary shelter in connection with recreational activity;
 that no sewage discharge from toilets (A black water@ ) into on-site sub-surface disposal
 facilities shall be permitted (the regulations allow incinerating toilets, gas toilets, chemical
 toilets, mulching toilets, A mulbank@ -type toilets and similar devices);
 that a septic system to discharge grey water (household sewerage which comes from sinks,
 showers, washing machines or sources other than toilets) may be permitted when constructed
 in conformance with Chapter 5, Subchapter 10, parts II and III of the Vermont Health
 Regulations; and
 that the applicant engage the services of a qualified engineer to perform soil and percolation
 tests and to develop a design plan of the specifications and installation of a septic system.

   The Planning Commission approved a site plan and the ZBA issued a conditional use
approval to Appellant for a > camp= on the property above his gravel pit in December 1992. The
ZBA required an A approved alternative toilet such as an incinerating toilet@ and approved the
proposed gray water system.

   In 1993, Appellant placed a 10' x 44' mobile home on the property, installed the grey water
system, and installed a small holding tank for the black water without obtaining approval for the
holding tank as an > alternative toilet.= He intended to use the mobile home while constructing the
camp building. The mobile home, with a large attached porch, was inspected and received a
certificate of occupancy in 1993. In or about 1995, without obtaining any permit amendment,
Appellant constructed the 28' x 36' wood building at issue in the present case, and removed the
mobile home. The former Zoning Administrator had advised Appellant that no permit
amendment would be required. In fact, if the placement and occupancy of the mobile home was
done under the authority of the 1992 permit, then the construction of the building should have
required a permit amendment. The original permit does not appear to have been sufficiently
specific to determine if a mobile home or a constructed building was authorized, and the failure
to obtain an amendment would not be enforceable at this time if the building had been built in
compliance with the original permit and the zoning regulations.

    The building has a 72 to 8-foot deep basement constructed of a poured concrete floor and
mortared cement block walls. The building is placed on the basement walls but not tied in, nor
are the basement walls tied in to the poured concrete basement floor. The building has a fully
equipped kitchen and a low-flow toilet. A washing machine and dryer and water heater are
installed in the basement. The building is heated by a wood-burning stove. The refrigerator,
stove, washer and dryer and water heater are powered by propane gas. The building is not
connected to a municipal or private distribution system for water, sewer, electricity or telephone
services. Appellant maintains a residence in Shaftsbury, votes in Shaftsbury, serves on municipal
boards in Shaftsbury and receives mail in Shaftsbury. Appellant spends as much time as he can
at the building, mostly on weekends in the late spring, summer, and fall of each year. He spends
little time at the building in the winter.

    In 2000, Appellant applied to erect a pole barn near the building. The current Zoning
Administrator also requested that he apply for an amendment to his 1992 permit to reflect the
building as built. Appellant made the application on appeal here in Docket No. 158-8-00 Vtec,
and in the course of the proceeding withdrew the request for the pole barn. After the ZBA denied
the as-built application, the Zoning Administrator issued the Notice of Violation on appeal here
as Docket No. 250-11-00 Vtec. The Notice of Violation required that Appellant remove the
permanent foundation, decrease the building area to 800 square feet or less, cease using the
structure as A a dwelling@ and provide evidence that no black water is being discharged into the
ground on the site. It also imposed fines of up to $100 per day. In its trial memorandum, the
Town requested the Court to declare that the property is in violation, and to allow the parties 60
days thereafter to discuss a plan to bring the property into compliance, after which, if no
agreement is reached, the Town requests a briefing schedule on the remaining issue of an
appropriate remedy and sanction.

   The parties first dispute whether the A building area@ is measured from the inside or outside
surfaces of the walls. Although any ambiguity in the zoning regulations must be interpreted in
favor of the landowner, we do not find any ambiguity in the definition. The ground area >
enclosed by the walls= includes the area occupied by the walls themselves, as well as the interior
space. Thus, all measurements will be made from the exterior edge of the walls and will
therefore measure what is ordinarily called the > footprint= of the building.

    The building area, including the area under the enclosed covered porches as required by the
regulations, measures 1158 square feet of building area. This area exceeds the maximum allowed
area by 358 square feet; that is, it is almost 45% larger than the maximum allowed size. The
building therefore falls beyond the definition of A camp@ in the zoning regulations and is not
allowed in the Forest zone without being brought into compliance with the definition of A camp@
as to the 800-square-foot-area requirement.

   The building is located on a A permanent foundation@ as that term is used in the definition of
the term A camp.@ It is not necessary to resort to comparisons with the Aswan Dam or other
massive structures to arrive at a commonly understood meaning of the term A permanent
foundation.@ A basement with a poured concrete floor and concrete block walls is a A permanent
foundation.@ The building therefore falls beyond the definition of A camp@ in the zoning
regulations and is not allowed in the Forest zone without being brought into compliance with the
definition of A camp@ as to the lack-of-permanent-foundation requirement.

    The conventional low-flow toilet discharging into a holding tank fails to meet the condition of
the permit that the building be equipped with an A approved alternative toilet such as an
incinerating toilet,@ nor does it meet the requirements of ' 5.22 of the Zoning Regulations that no
sewage discharge from toilets is permitted into on-site sub-surface disposal facilities. To be
allowed to keep the water-flush toilet and holding tank arrangement, Appellant must prove to the
satisfaction of the Zoning Administrator that the tank does not discharge (and that no overflow
from it would discharge) into the subsurface soils, and thereby obtain approval of the system as
installed. The Town is willing to consider approval of the holding tank if it is uncovered,
inspected by a Vermont-licensed engineer, and certified that it cannot discharge to the
environment and that it otherwise complies with the Environmental Protection Rules (formerly
the Health Department Rules, as required by ' 5.22.

   The Town also argues that Appellant= s use of the building exceeds the definition of the term A
private recreational camp,@ but rather that the building is being used as a secondary residence, if
not as a primary residence. Unfortunately, the zoning regulations do not provide a definition of
primary or secondary residence, to assist in distinguishing a A secondary residence@ level of use
from a A private recreational camp@ level of use. Although the regulations do define a single-
family dwelling, that definition does not assist the Court in this particular task, because primary
and secondary residences and camps may all meet that definition of a single-family dwelling.

   Unlike the > size= component or the > lack-of-permanent-foundation= component of the
definition of A private recreational camp,@ the > use= component is hard to interpret and difficult to
enforce, although we may all feel that we know it when we see it. The > use= component is not
cast in terms of the equipment, furnishings or amenities in the building (other than the lack of a >
permanent foundation= ), nor is it cast in terms of the number of days of use, seasons of use, or
regularity of use, nor is it cast in terms of the type of recreational activity with which the use
must be associated (such as hunting or fishing, which have definite seasons). Rather, to qualify
as a A private recreational camp@ allowed in the Forest District, the building must not be used as a
primary or secondary residence, and must be used only A occasionally@ for A temporary shelter@ in
connection with any A recreational activity.@

   We take each of these criteria in turn. Appellant uses the building in connection with
recreation in its broadest sense of renewal, by staying at it as much as he can, as a refuge from
the world of work, rather than as a temporary shelter while hunting or fishing or snowmobiling
or engaging in any other specific recreational activity. Appellant uses the building much more
than the common meaning of the word A occasionally@ as he uses it on weekends throughout the
summer and fall, as well as during the week when he is able to get away. It is not his primary
residence, as he votes, receives mail, engages in civic activities and conducts daily life from his
residence in Shaftsbury. However, his level of use of the building has risen to the level of a
secondary residence, that is, a weekend or vacation home.

    We note for the parties= guidance, however, that it will be difficult to quantify the point at
which a reduction in Appellant= s use of the building would comply with the definition of A
private recreational camp.@ As written, the regulations do not limit the home-like amenities that
may be installed in a A private recreational camp,@ and they do not quantify the limits on the
amounts of time that can be considered A occasional.@ The Town may wish to consider revising
its regulations to address this problem for future cases. Meanwhile, any ambiguities in the
regulations must be interpreted most favorably to the landowner.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED that the building at issue in
these appeals is in violation of the Bennington Zoning Regulations and of the 1992 permit, as it
exceeds the size limit for a private recreational camp, has a permanent foundation, and has an
unapproved alternative > black water= system consisting of a low-flow toilet discharging to an in-
ground holding tank. It is also ORDERED and ADJUDGED that Appellant= s use of the building
exceeds the definition of A private recreational camp@ in the Bennington Zoning Regulations in
that it is used more than occasionally and is used as a secondary residence or vacation home.

   Accordingly, as requested in the Town= s memorandum, on or before March 25, 2002 (60
days from the date of this order), the parties either shall stipulate to and file with the Court a plan
to bring the property into compliance, to be entered as a court order in this matter, or shall file
memoranda on the remaining issue of an appropriate remedy and sanction. If such memoranda
are filed, any responses to them shall be filed within ten days from their date of filing. The Court
will rule on the remedy based on those memoranda, without further oral argument unless
requested by the parties.

    Dated at Barre, Vermont, this 23rd day of January, 2002.

___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1
  It appears from the diagram in Exhibit 4 that Appellant may also own land over the Shaftsbury
border. We make no findings as to whether this structure would comply with any zoning
regulations in the Town of Shaftsbury, if moved over the Town border.
