                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT


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In re Appeal of                                    }      Docket No. 161-9-99 Vtec
       Thomas and Jeanice Bachelder                }
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                  Decision and Order on Motion for Summary Judgment

       Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the
Town of Fairfield denying their request for a variance from the lot access requirements of
the zoning ordinance. Appellants are represented by Robert E. Farrar, Esq.; the Town of
Fairfield is represented by Michael S. Gawne, Esq.; Larry Bouchard has entered his
appearance as an interested person and represents himself, but has not participated in the
briefing of the present motion. The Town has moved for summary judgment on the
grounds that the Appellants or their predecessors created the hardship for which the
variance is sought.
       Both lots at issue in the present case are located in the Agricultural zoning district of
the Town of Fairfield, on a large tract of land formerly owned by Auguste Lussier and
acquired by him prior to the adoption of zoning in the town. As of 1973 and continuing
through at least 1985, the Zoning Ordinance provided in 'A(4.3) that the minimum
requirements for a single-family detached dwelling were a 1-acre lot size and 200 feet of
road frontage.1 Section A(4.2) prohibited dwelling units on lots without frontage either on a
public road2 or public waters. In 1978 and continuing through at least 1985, the Town of
Fairfield did not have subdivision regulations.

       1
           The current ordinance continues to require 200 feet of road frontage. '5.
       2
         The current ordinance allows the Planning Commission to approve access
from an interior lot to a public road by a right-of-way at least 50 feet wide, provided that
the property over which the right-of-way runs has at least 200 feet of road frontage.
'29(a).


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        In 1978, Auguste Lussier created a subdivision, including the two lots at issue in the
present case. The lots created by that subdivision do not qualify for the protections of
provisions for pre-existing small lots because they were created after the adoption of the
Town=s zoning ordinance which established the frontage requirements. Because the lots
do not meet the definitions of contiguous pre-existing small lots, we need not consider
whether or when the merger requirements of the current Zoning Ordinance ever applied to
them.
        Mr. Lussier received a state subdivision permit EC-6-0635 (referenced in the deeds
for each lot). The state permit may have required that future state water supply and
wastewater permits be obtained before any construction of buildings requiring water supply
or septic systems; that state permit was not provided in connection with the present motion
and is not material to the present motion.
        Lot 5 is an interior lot 1.57 acres in area, and is located partly in the Town of St.
Albans and partly in the Town of Fairfield. It has no frontage on a public road in either
town, but has access by a 30-foot-wide right-of-way across Lot 7, which is located entirely
within the Town of Fairfield. Mr. Lussier conveyed the vacant Lot 5 to one J. Robert
Audette in September of 1979. Appellants acquired it from Mr. Audette in May of 1980 and
built a house on it pursuant to some town permit or approval not in evidence. At the time of
its conveyance to Mr. Audette and at the time of its conveyance to Appellants, Lot 5 did not
qualify under the Zoning Ordinance for the construction of a single-family dwelling, due to
the lack of any road frontage.
        Lot 7 is 1.80 acres in area, and has 30 feet of frontage on Rugg Road, a public road
in the Town of Fairfield. Mr. Lussier conveyed the vacant Lot 7 to Appellants in May of
1982. At the time of its conveyance to Appellants, Lot 7 did not qualify under the Zoning
Ordinance for the construction of a single-family dwelling, due to the lack of sufficient road
frontage. The deed to Lot 7 also contains so-called Adeferral of permit@ language in
compliance with the state subdivision permit, stating that Appellants Ashall not construct or
erect a structure or building . . . , the useful occupancy of which will require the installation
of plumbing and sewage treatment facilities@ without first complying with the state
regulations governing water supply and sewage disposal. Lot 7 is unimproved. Appellants

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grow Christmas trees on it.
       During the period from 1982 to 1985 during which Appellants held both Lot 5 and
Lot 7, no specific merger requirement seems to have applied to the lots. See, In re Appeal
of Weeks, 167 Vt. 551 (1998). In any event, merger of the two lots would not have
rendered them conforming as to the frontage requirements of either lot. In May of 1985,
Appellants conveyed Lot 5, improved with the single-family dwelling, to an unrelated party
who has not entered an appearance in the present appeal.
       In 1999, Appellants applied for a building permit to construct a dwelling on Lot 7.
Nothing has been provided to the court regarding that application or any ruling on it; it is
not the subject of the present appeal. Presumably it was the denial of that permit
application that caused them to apply to the ZBA for a variance from the 200-foot road
frontage requirement of '29. (The application for variance was not supplied in connection
with the motions for summary judgment).
       In order to qualify for a variance, an applicant must meet all five requirements of 24
V.S.A. '4468(a) as incorporated into the particular municipal ordinance. Only the third
requirement, that the unnecessary hardship has not been created by the appellant, is at
issue in the present motion. To meet that requirement, the hardship must result from
circumstances beyond the control of the property owner. In re Application of Fecteau, 149
Vt. 319 (1988).
       When Appellants purchased Lot 7, they already owned Lot 5 and were familiar with
the configuration of the surrounding lots in the Lussier subdivision and in particular with the
amount of frontage enjoyed by Lot 7, as the Lot 5 right-of-way occupies the whole of the
Lot 7 frontage. They were at least on record notice that Lot 7 could not be built upon
without obtaining a state water supply and wastewater disposal permit, and were at least
on record notice of the frontage requirements of the Fairfield Zoning Ordinance.
       Even without their former ownership of Lot 5, by purchasing Lot 7 with actual or
constructive knowledge of the frontage restrictions applicable to it, Appellants are
considered to have created for themselves whatever hardship those restrictions entail. The
Vermont Supreme Court has consistently maintained this principle in appropriate cases.
DeWitt v. Brattleboro Zoning Board of Adjustment, 128 Vt. 313, 321 (1970); L.M. Pike &

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Son v. Town of Waterford, 130 Vt. 432 (1972); Lewis v. Pickering, 134 Vt. 22, 26-27
(1975); In re Ray Reilly Tire Mart, Inc., 141 Vt. 330 (1982); LeBlanc v. City of Barre, 144 Vt.
269 (1984); In re McDonald=s Corp., 151 Vt. 346, 349 (1989); Blow v. Town of Berlin
Zoning Adm=r., 151 Vt. 333 (1989).


       Accordingly, based on the foregoing, the Town=s Motion for Summary Judgment is
GRANTED. Appellants do not qualify for a variance, as they are said to have created the
hardship from which they now seek relief, by purchasing Lot 7 with actual knowledge of its
size and amount of frontage, and actual or constructive knowledge of the requirements of
the Zoning Ordinance at the time of their purchase of it. This decision does not address
whether they meet any of the other four requirements for a variance, or whether they may
qualify for any other exception which would allow them to build a dwelling on Lot 7.

                                      th
       Done at Barre, Vermont, this 13 day of September, 2000.




                             _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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