                                 STATE OF VERMONT
                      SUPERIOR COURT - ENVIRONMENTAL DIVISION

                                                     }
In re Gould Accessory Building                       }                   Docket No. 14-1-12 Vtec
   Permit (After Remand)                             }
                                                     }

                                       Decision on the Merits

        Donald and Julie Gould (Applicants) appeal a decision by the Town of Monkton
Development Review Board (the DRB)1 denying their application for a building permit to construct
an accessory dwelling on property they own in the Town of Monkton, Vermont (the Town). The
Gould’s property has an address of 148 Piney Woods Road (the Property).
        The Court conducted a site visit to the Property on June 19, 2012, immediately followed by
a single day merits hearing at the Superior Court, Addison Civil Division’s courthouse in
Middlebury, Vermont. Appearing at the site visit and trial were Donald and Julie Gould,
appearing pro se, and David Rath, Esq., Attorney for Appellee Town of Monkton.
        Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact and Conclusions of Law.

                                          Findings of Fact
1. The Property, also referred to as Lot 8, is located at 148 Piney Woods Road, Monkton, Vermont
    and is approximately 11.4 acres in size.
2. The Goulds seek a building permit for a single story accessory dwelling to be located on the
    Property where they have an existing 3 bedroom single-family home (Gould residence).
3. The accessory dwelling is proposed to be a prefabricated structure with exterior dimensions as
    follows: 14 feet high, 10 feet wide, and 50 feet long. The Goulds also propose to attach a 12 foot
    by 12 foot addition and an 8 foot by 12 foot deck to the prefabricated structure.
4. The total exterior size of the proposed accessory dwelling, excluding the deck, is 644 square
    feet.
5. The proposed accessory dwelling will have one bedroom and one bathroom.
6. In addition to the Gould residence, the Property also has several additional buildings including
    a barn, sheds, and a workshop.



1This matter was before the DRB after a remand order issued by this Court. See In re Gould Accessory
Dwelling Application, No. 33-3-11 Vtec (Vt. Super. Ct. Envtl. Div. Aug. 23, 2011).
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 2 of 10.


7. The Goulds also own the adjoining lot to the east of the subject property (Lot 7). This lot
    contains a 3-bedroom duplex (Lot 7 duplex), which the Goulds rent to tenants.
8. The proposed accessory dwelling is to be located in the southeast corner of the Gould’s Lot 8,
    set back 75 feet from Piney Woods Road and 50 feet from the common boundary with Lot 7.
9. The proposed accessory dwelling will have an independent curb cut and driveway off of Piney
    Woods Road, and an independent parking area. The driveway and parking area are proposed
    to be located to the east of the accessory dwelling close to the common boundary with Lot 7.
10. According to the Goulds’ Application for a Building Permit for the accessory dwelling, in
    evidence as the Town’s trial Exhibit C, the proposed accessory dwelling was to be served by an
    existing well drilled upon Lot 8, which is presently supplying water to the Lot 7 duplex.
    During the trial, however, Mr. Gould testified that the Goulds had no specific plan for the
    water supply for the proposed accessory dwelling; the supply may be via a new well or the
    supply may be shared with one of two wells already existing on Lot 8.
11. One existing well located on Lot 8 supplies water to the Gould residence as well as to the
    dwelling on Lot 6 located immediately adjacent to the west side of Lot 8. The second existing
    well located on Lot 8 supplies water to the Lot 7 duplex.
12. The Goulds have not yet proposed specific plans for the accessory dwelling’s electric supply.
13. The Gould residence is benefited by a Wastewater System and Potable Water Supply Permit
    WW-9-1311-1. This ‘-1’ permit amends a previous permit (WW-9-1311). Permit WW-9-1311
    had authorized the current configuration of the property, with a three-bedroom duplex on 1.3
    acres delineated as Lot 7 and the Gould residence on 11.45 acres delineated as Lot 8.At present
    the Goulds have not applied for, and thus have not obtained, any permitting or approval for
    the handling and treatment of wastewater from the proposed accessory structure. The Goulds
    propose that the new accessory dwelling will share the septic system currently servicing the
    Gould residence. The Goulds intend to seek an amendment to the Wastewater System and
    Potable Water Supply Permit WW-9-1311-1 whereby their existing single-family dwelling
    approval for the 3-bedroom Gould residence will be reduced to an approval for a 2-bedroom
    residence, and the extra capacity for the third bedroom will be transferred to the new accessory
    dwelling.
14. The proposed accessory dwelling would be located approximately 160 feet from the Gould
    residence and 100 feet from the Lot 7 duplex.
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 3 of 10.


15. The distance between the existing driveway at the Gould residence and the proposed driveway
     which will serve the accessory dwelling is approximately 264 feet.
16. The area of the Town within which the Property is located is rural in nature with dispersed
     development.
17. The second floor of the Gould residence has knee walls on two sides of the structure which are
     approximately 34.5 inches high. These knee walls extend from the floor to the sloped ceiling.
18. The total habitable floor area of the Gould residence is as follows:
        a. First Floor (including the mud room): 1,061 square feet;
        b. Second Floor (calculated as area between the knee walls): 878 square feet
        c. Total area: 1,939 square feet.
19. Thirty percent of the total habitable floor area of the residence is 581.70 square feet.

                                             Conclusions of Law
        The legal questions presented in this appeal as to whether Applicants’ proposed accessory
dwelling complies with 24 V.S.A. § 4412(1)(E) and with the Town of Monkton Zoning Regulations
§ 320(5) fall into three categories: 1) whether the accessory dwelling use is subordinate to that of
the principal dwelling (the Gould residence), 2) whether the proposed accessory dwelling exceeds
30 percent of the total habitable floor area of the principal single-family dwelling (the Gould
residence), and 3) whether the Property has sufficient wastewater capacity. Applicants also raise
other issues relating to alleged procedural errors and constitutional protections. We first review
whether Applicant’s proposed accessory dwelling complies with 24 V.S.A. § 4412(1)(E).
I.      Accessory Dwelling Subordinate to Principal Dwelling
        Title 24, Section 4412(1)(E) of the Vermont Statutes Annotated provides, in pertinent part,
that
         “[n]o bylaw shall have the effect of excluding as a permitted use one accessory
        dwelling unit that is located within or appurtenant to an owner-occupied single-
        family dwelling. An accessory dwelling unit means an efficiency or one-bedroom
        apartment that is clearly subordinate to a single-family dwelling . . . .”


        24 V.S.A. § 4412(1)(E) (emphasis added).            The Town of Monkton Zoning Regulations
(Regulations) define “accessory use or building” as “a use or building customarily incidental and
subordinate to the principal use [or] building and located on the same lot.” Regulations § 130. The
Vermont Supreme Court has previously interpreted “subordinate” to mean “holding a lower rank,
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 4 of 10.


class, or position.” In re J.D. Associates, No. 2003-294, slip op. at 2 (Vt. 2004) (unpublished mem.)
(quoting Black’s Law Dictionary 1439, 1540 (7th ed. 1999)); see also E.C. Yokley, Zoning Law &
Practice 8-2 (4th ed. 2001) (“‘Incidental and subordinate’ means a use that is minor in relation to
the permitted use and bears a reasonable relationship to it.”).
        As discussed within our June 7, 2012 entry order denying the Town’s motion for summary
judgment, Section 2730(b)(4) of the 2006 Vermont Fire and Building Safety Code lists mere
examples of factors that may indicate that an accessory dwelling is subordinate to a single-family
dwelling. In re Gould Accessory Building Permit (After Remand), No. 14-1-12 Vtec, slip op. at 2
(Vt. Super. Ct. Envtl. Div. June 7, 2012) (Walsh, J.); see also In re Appeal of Trahan, 2008 VT 90, ¶
19, 184 Vt. 262 (stating that when interpreting zoning ordinances and statutes, courts will
“construe words according to their plain and ordinary meaning”). The listed examples include a
common driveway, shared water and wastewater systems, and a common electrical service
entrance. Vermont Fire & Building Safety Code § 2730(b)(4). There is nothing to indicate that the
list of factors is comprehensive, or that an accessory dwelling must possess each of these features
to be considered subordinate to the principal dwelling.
        The Town argues that the proposed accessory dwelling and driveway serving the accessory
dwelling are not subordinate to the Gould residence because the accessory dwelling and its
driveway are closer in proximity to the Lot 7 duplex than to the Gould residence.
        We conclude that the proposed accessory dwelling is subordinate to the Gould residence
for the following reasons. Both dwellings are located on the same lot and will have residential use.
The existing Gould residence presently has 3 bedrooms, and under the Goulds’ plan of
development this dwelling will be renovated to have 2 bedrooms while the accessory dwelling will
have 1 bedroom. Furthermore, the square footage of the proposed accessory structure is much
smaller than the Gould residence. As such, the proposed accessory dwelling use is minor as
compared to the use of the Gould residence. The proposal indicates that the two dwellings would
share the existing wastewater system. Although the Goulds propose a separate driveway for the
accessory dwelling, nothing in the Town’s regulations prohibit two access driveways for the two
structures. It remains unclear whether the Gould residence and the proposed accessory dwelling
will share electric service or a water supply well. Even if the accessory dwelling were to have
independent electric service and water supply, however, this would not change our overall
conclusion that the proposed accessory dwelling is subordinate to the Gould residence.
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 5 of 10.


        The proposed accessory dwelling is approximately 160 feet from the Gould residence and
approximately 100 feet from the Lot 7 duplex. Absent limitations expressly stated in the Town’s
bylaws, however, the distances separating the Gould residence, the proposed accessory structure,
and the Lot 7 duplex do not alter our conclusion that the proposed use is subordinate to the Gould
residence. Similarly, and again absent limitations expressly stated in bylaws, the 264-foot distance
between the existing driveway at the Gould residence and the proposed driveway which will serve
the accessory dwelling does not negate our conclusion of subordinate use. While it is possible to
conceive of a distance between a principal and an accessory structure so large that the accessory
structure could not be considered subordinate, the Goulds’ proposal has not reached this
magnitude. The question of whether a proposed subordinate use sits physically too far from its
related principal use depends, in part, upon the nature of the area involved. In the case before the
Court, the area of the Town in which the property is located is rural in nature with dispersed
development. Within this context, we do not regard 160 feet as so distant as to disqualify the
proposed structure as “accessory,” even though a different structure happens to be closer in
proximity.
II.     Habitable Area
        The maximum size of the proposed accessory dwelling in this appeal is controlled by 24
V.S.A. § 4412, which provides, in relevant part, that no town’s zoning bylaws may prohibit an
accessory dwelling as a permitted use if the accessory dwelling unit does not exceed 30 percent of
the total habitable floor area of the single-family dwelling. 24 V.S.A. § 4412(1)(E)(ii). In analyzing
the maximum size allowed, we first must determine the “total habitable floor area” of the Gould
residence.
        The total habitable floor area of the Gould residence is 1,939 square feet. We reach this
conclusion by considering the measurements undertaken by the parties. The Town’s Regulations
do not define “habitable floor area” or explain how to measure for this area. The parties agree that
habitable floor area is calculated by measuring the area inside of a dwelling in which people live.
Both parties provided measurements from the interior side of the exterior walls of one side of the
dwelling to the interior side of the exterior walls of other side of the dwelling. The parties also
agree that areas such as basements, garage spaces, and attic spaces are not included in habitable
area.
        The parties disagree on how to account for stairways and areas under sloped ceilings. The
Town suggests that stairways connecting a first floor to the second floor should only be included
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 6 of 10.


in the area calculation for one of the floors. We disagree with this exacting approach as it could
lead to absurd results. If the Town’s rationale were extended to other structural characteristics,
then a calculation of habitable floor area may have to be reduced by the area occupied by interior
dividing walls and the like. Such an approach would be difficult and unnecessary absent an
express regulatory provision clearly requiring such a detailed effort. The Town also argued that
for the second floor of the Gould residence where the pitch of the roof causes the ceiling to slope,
the limits of habitable area reaches to imaginary walls which are four feet tall when extended from
the floor to the ceiling. In the Gould residence’s second floor, the knee walls extending from the
floor to the ceiling are approximately 34.2 inches high. The floor area interior to these walls is
usable living space, and therefore, we include the area up to the interior side of the knee walls as
habitable floor area.      Therefore, we determine habitable floor area to be the square footage
measured between the interior sides of exterior walls or the interior sides of the knee walls in areas
with sloped ceilings.
        Based upon these principles, the Town measured the first floor of the Gould residence to be
approximately 445 inches by 303 inches, exclusive of the mud room, equating to approximately 938
square feet. The Goulds measured the first floor, exclusive of the mud room, to be 445 inches by
301 inches, equating to approximately 931 square feet. The Town calculated the mud room area to
be approximately 66 square feet; however, the Town did not include a stairway. The Goulds
calculated the area of the mud room, including the stairway, to be 130 square feet. Thus, we find
that the square footage of the habitable area of the Gould residence’s first floor (including the mud
room and including the stairways) to be approximately 1,061 square feet.
        The Town measured the second floor of the Gould residence to be approximately 445
inches by 260 inches using an imaginary 4-foot high wall in the area of the sloped ceiling, equating
to approximately 805 square feet. The Goulds measured the second floor, including the area
behind knee walls, to be 445 inches by 301 inches equating to approximately 931 square feet. We
conclude that the area behind the knee wall is not habitable area; however, we conclude that the
area up to the existing 34.2 inch high knee walls is habitable. Thus, we find the square footage of
the habitable area of the Gould residence’s second floor to be approximately 878 square feet. We
do not subtract stairways from either floor, and therefore, we find a total habitable floor area of
1,939 square feet. Thirty percent of the total habitable floor area of the Gould residence is therefore
581.70 square feet.
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 7 of 10.


          Next we must determine how to calculate the size of the proposed accessory dwelling. The
Goulds assert that the habitable area of the accessory dwelling may not exceed 30 percent of the
habitable area of the primary dwelling. The Town asserts that the square footage of the accessory
dwelling as measured by its exterior walls may not exceed 30 percent of the habitable area of the
primary dwelling.
          The dispute arises regarding the interpretation of the following condition for accessory
dwellings: “The unit does not exceed 30 percent of the total habitable floor area of the single-
family dwelling.” 24 V.S.A. § 4412(1)(E)(ii). In interpreting statutory provisions such as this one,
we are directed to give effect to the intent of the Vermont Legislature. Town of Killington v. State,
172 Vt. 182, 188 (2001). To do this we refer to the common and ordinary meaning of the statute’s
plain language, taking into account the statute as a whole.                 Delta Psi Fraternity v. City of
Burlington, 2008 VT 129, ¶ 7, 185 Vt. 120. We accept this interpretation unless doing so would
make a provision ineffective or create irrational results. Town of Killington, 172 Vt. at 188.
          The parties dispute whether the word “unit” refers only to the habitable floor-area or the
square footage of the building as measures by the building’s exterior walls. We note that 24 V.S.A.
§ 4412(1)(E)(ii) contains one general reference and one specific reference. The general reference is
to the accessory dwelling “unit” and the specific reference is to the “habitable floor-area” of the
primary dwelling. To give effect to the intent of this statutory provision, the general term “unit”
should be interpreted to refer to the specific measurement of “habitable floor-area.” Thus, the
statute would read: “the [habitable floor-area of the] unit may not exceed 30 percent of the total
habitable floor area of the single-family dwelling.” We also reach this interpretation because the
term “unit” encompasses accessory dwellings wholly separate from primary dwellings and
accessory dwellings wholly within existing primary dwellings, and therefore, we must consider
the feasibility of applying the statute to both scenarios. Because there is no way to measure the
external footprint of an accessory dwellings wholly located within the interior portion of a larger
house, we conclude that the statute limits the habitable area of accessory dwelling units.
          In further support of this interpretation is the principle that zoning regulations are in
derogation of private property rights, and therefore, property owners are entitled to all property
rights that are not expressly prohibited by statute or regulation. Appeal of Weeks, 167 Vt. 551, 555
(1998) (internal citations omitted). Thus, we adopt the more permissive interpretation of 24 V.S.A.
§ 4412.    We conclude that 24 V.S.A. § 4412 restricts the size of the “habitable floor-area” of
accessory dwellings.
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 8 of 10.


        The Goulds’ proposed accessory structure may therefore have a maximum habitable floor-
area of 581.70 square feet, which represents 30 percent of the habitable floor area of the Gould
residence. The accessory structure proposed in the application has an area as measured by its
exterior walls of 644 square feet. Mr. Gould testified that by necessity the interior habitable floor
area must be less than 644 square feet, a statement with which we generally agree. Mr. Gould
testified further that the accessory dwelling unit would have a habitable floor area of less than 598
square feet. Other than this conclusory statement, the Goulds provided no additional evidence of
the habitable floor area of the proposed accessory dwelling.
        Thus, while we conclude that the proposed accessory dwelling may have up to 581.70
square feet of habitable floor area, we are without evidence specifying the total habitable floor area
of the Goulds’ proposed accessory dwelling.
III.    Sufficient Wastewater Capacity
        Title 24, Section 4412(1)(E)(i) of the Vermont Statutes Annotated requires as a condition of
permitting an accessory dwelling that the Property have sufficient wastewater capacity. 24 V.S.A.
§ 4412(1)(E)(i). At present the Goulds have not applied for, and thus have not obtained, any
permitting or approval for the handling and treatment of wastewater from the proposed accessory
structure. The Goulds propose that the new accessory dwelling will share the septic system
currently servicing the Gould residence, which operates under Wastewater System and Potable
Water Supply Permit WW-9-1311-1. This ‘-1’ permit amends a previous permit (WW-9-1311).
Permit WW-9-1311 had authorized the current configuration of the property, with a three-bedroom
duplex on 1.3 acres delineated as Lot 7 and the Gould residence on 11.45 acres delineated as Lot 8.
The current approved and permitted wastewater disposal capacity for Lot 8 is in full use by the
existing 3-bedroom Gould residence.
        The Goulds intend to seek an amendment to Permit WW-9-1311-1 whereby their existing
single-family dwelling approval for 3-bedrooms will be reduced to 2-bedrooms, and the extra
capacity for the third bedroom will be transferred to the new accessory dwelling. Again, the
Goulds have not applied for, and thus have not obtained, any permitting or approval for this
amendment.
        At trial, neither party provided any evidence relating to the technical requirements
necessary to achieve the amendment to the existing wastewater permit. Nor did either party
provide any evidence relating to whether the Goulds might be successful in achieving the
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 9 of 10.


amendment. Thus, the proposed amendment remains a possibility, nothing more and nothing
less.
          Regulations § 320(5) states that the Town’s Administrative Officer shall not issue a permit
unless the application for the permit is accompanied by “[w]ritten approval of any Federal, State,
County, or Town agency or governmental body which may be required under existing laws.”
Thus, the Town argues that the permit for the accessory dwelling cannot be issued because the
Goulds have not yet obtained the required state Wastewater System and Potable Water Supply
Permit.
          Regulations § 320(5) is relevant here, because this case began as an appeal before the DRB
of the Town Administrative Officer’s denial of the Goulds’ application.                       While the DRB
subsequently denied the Goulds’ application as well, development review boards in Vermont also
have discretion to conditionally grant approvals or permits. 24 V.S.A. § 4464(b)(2) (“In rendering a
decision in favor of the applicant, the panel may attach additional reasonable conditions and
safeguards as it deems necessary to implement the purposes of this chapter and the pertinent
bylaws and the municipal plan then in effect.”). This Court, on appeal, has the same discretion. In
re King Garage Const. Permit, No. 202-9-08 Vtec, slip op. at 13 (Vt. Envtl. Ct. July 9, 2009) (Durkin,
J.) (“We are afforded all the powers and responsibilities as provided to the DRB in its review below
of Applicant's proposed garage. . . [including] the discretion to attach ‘reasonable conditions and
safeguards as [the DRB in the first instance, and this Court on appeal] deems necessary.’” 24 V.S.A.
§ 4464(b)(2) (quoting In re Torres, 154 Vt. 233, 235 (1990)).
          As addressed above, we conclude that the Goulds’ proposed accessory dwelling use is
subordinate to that of the principal single-family dwelling, the Gould residence. We also conclude
that the proposed accessory dwelling may not exceed 581.70 square feet of habitable floor area,
which is the equivalent of 30 percent of the total habitable floor area of the Gould residence.
Lastly, we conclude that although the Goulds have not demonstrated that the Property has
sufficient wastewater capacity, the Goulds have testified to their general plan for obtaining state
approval for the needed wastewater capacity. Thus, we approve the Goulds’ application for a
building permit for the proposed accessory dwelling on the following conditions:
    1. The Goulds must obtain State of Vermont approval for sufficient wastewater capacity;
    2. The Goulds must develop plans for their accessory dwelling showing that the habitable
          floor area, as defined and described above, totals 581.70 square feet or less.
In re Gould Accessory Bldg. Permit (After Remand), No. 14-1-12 Vtec (Merits Decision) (10-31-2012)   Pg. 10 of 10.


IV.      Constitutional and Process Challenges
         In their Statement of Questions the Goulds allege procedural errors and violations of
constitutional protections. As we conditionally approve the Goulds’ application for an accessory
dwelling, we need not consider these additional issues; they are now moot.

                                                  Conclusion
         For the reasons discussed above, we conclude that Applicants are entitled to a building
permit for their proposed accessory dwelling.             We condition our approval on the following
requirements:
      1. The Goulds must obtain State of Vermont approval for sufficient wastewater capacity for
         the accessory dwelling;
      2. The Goulds must develop plans for their accessory dwelling showing that the habitable
         floor area, as defined and described above, totals 581.70 square feet or less.
         Once the Goulds satisfy these conditions, the Goulds may present documentation
supporting their compliance with these conditions to the Town of Monkton Administrative Officer
to complete the ministerial act of issuing a building permit for an accessory dwelling that is
consistent with the conditions set forth in this opinion.
         A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
         Done at Berlin, Vermont, this 31st day of October, 2012.



                                                   _________________________________________
                                                    Thomas G. Walsh, Environmental Judge
