                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


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In re: Appeal of                           }
 Steven and MaryAnne Freedman                      }     Docket No. 202-11-98 Vtec
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             Decision and Order on Motion to Partially Withdraw Stipulation
              and Decision and Order on Motions for Summary Judgment

       Appellants appealed from a decision of the Development Review Board (DRB) of
the Town of Grand Isle, denying them a conditional use permit to expand a deck on the
lake side of their lakeshore building. Appellants are represented by Todd Hartsuff, Esq.;
the Town is represented by Amanda Lafferty, Esq. The Town has moved to withdraw its
consent to Paragraph 13 of the Stipulated facts, and both parties have moved for summary
judgment.


       The Town=s motion to withdraw its consent to Paragraph 13 of the Stipulation is
GRANTED. The motion was timely, measured from the date of filing of Appellants= motion
for summary judgment, which first put the Town on notice of the issue of the location of
Appellants= lake shore property line. Facts are in dispute as to that element of the
paragraph; moreover, we note that disputes as to the locations of property lines cannot be
decided by the Environmental Court.


       Appellants own a .68-acre parcel of land, improved with a residential building and a
separate garage and separate small shed, located at 8 Cedar Point Road in the
Residential Shoreline zoning district in the Town of Grand Isle. The residential building is a
pre-existing, non-complying structure, built before 1978 when the Town adopted a
requirement that buildings be set back more than 75 feet from the shoreline of Lake
Champlain, defined in the regulations as the 95.5 foot lake level. The ridge line of the roof

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is located at a line 75 feet from the shoreline as so defined.
       An existing deck is located on the east (lake side) and south sides of the main
building. The bulk of the deck is closer than 75 feet from the shoreline. Appellants
propose to replace and expand the existing deck as shown in the plans submitted as
agreed Exhibit A. All portions of the deck where it would be expanded would be closer
than 75 feet from the shoreline. The proposed deck is adjacent to but free-standing of the
house structure, is uncovered, is elevated off the ground and is not in contact with the
ground other than its support posts and stair landing. The proposed deck is located more
than 25 feet from the northerly side property line, more than 25 feet from the southerly side
property line, and more than 40 feet from the westerly (road side or front) property line.
       The parties dispute whether the proposed deck will be located more than 25 feet
from the lake side property line, due to a dispute as to whether Appellants own to the low
water mark of the lake. It may be necessary to resolve the location of their lake side
property line before a final order can issue (on that question only) in this appeal; however,
any such action to quiet title or establish a boundary line must be filed and resolved in
Superior Court. That boundary, however, need not be resolved in order to address the
remaining issues raised in the summary judgment motions now before the Court.


       Section 320 of the Zoning Bylaw contains the following provision applicable to all
Shoreland Districts: AMinimum setbacks from shoreline(at 95.5 ft lake level): (1) Principal
building 75 feet.@ Table 5 of '320 contains a listing of minimum dimensional requirements,
including the following: ASetback: 40 feet from near edge of public and private road right-of-
way@ and AYard: 25 feet@
       The definitions section of the Zoning Bylaw defines the term Astructure@ as anything
constructed, erected or placed and which requires a fixed location on the ground in order to
be used. AStructure@ is defined to include porches and Aany other outbuilding or building
features,@ in addition to Abuildings.@
       The term Abuilding@ is defined as a subset of Astructure:@ one which is designed, built
or used as a shelter for persons, animals or property.
       The term Aaccessory use/structure@ is defined as a use or structure, incidental and

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subordinate to the principal use or structure, Asuch as patios, porches, garages, toolsheds
and the like.@
       The term Asetback@ is defined as Athe nearest distance between a building face and
a public road right-of-way. For the purposes of this definition, a >building face= shall include
porches and patios, whether enclosed or unenclosed, but [does] not include steps.@
       The term Ayard@ is defined in full as Aan open space on a lot, unoccupied by a
structure from the ground upward, except as otherwise provided in these regulations. The
required area of yards shall be determined with reference to the lot line and the Abuilding
face@ in the same manner as the setback (see definition of setback).@ (Emphasis added).
       Ambiguity in zoning regulations is to be resolved in favor of the landowner, Appeal
of Weeks, 167 Vt. 551, 555-56 (1998). However, this principle does not require (or even
allow) the Court to disregard the context of the use of terms in a zoning regulation,
however oddly or awkwardly drafted. From the context, it appears that the term Asetback@
means Afront or roadside setback@ when the term is used by itself in the Adimensional
requirements@ tables in the Zoning Bylaw, or as referenced, for example, in the definition of
Ayard.@ On the other hand, when modified in phrases such as Aminimum setbacks from
shoreline(at 95.5 ft lake level),@ the term Asetback@ is used in its ordinary meaning of the
distance of an object from some identified point or line.
       However, although the Zoning Bylaws contain uncommon definitions and provisions,
they are not ambiguous on the point at issue in the present appeal. The only structure on
a lot which must comply with the 75-foot shoreline setback is the Aprincipal building.@ A
deck, whether free-standing or attached, and whether covered or uncovered, falls within
the definition of Astructure@ but not that of Abuilding1.@ Specific exceptions are made to
include porches and decks when measuring roadside or yard setbacks, but no such
exception is found in the definitions for measuring the shoreline setback.
       Further, even if the deck is considered to be a separate structure from the house, it

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          This interpretation is emphasized by the specific inclusion of decks or porches
in the concept of Abuilding face@ inn the definition of Asetback,@ although they are
otherwise excluded from the definition of Abuilding@ and are defined as a non-building
type of Astructure@ in the definition of Astructure.@


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falls within the definition of accessory structure and would not be considered the Aprincipal@
structure, even if the shoreline setback were measured to the Aprincipal structure@ rather
than, as it is, to the Aprincipal building.@
       The drafters of the Zoning Bylaw could have required the shoreline setback to be
measured from Aany structure@ or from the Aprincipal structure,@ or could have written an
exception for decks and porches for any setback measurement, or could have defined
Asetback@ as the shortest distance or the perpendicular distance between a building face
and the property line, roadway, or shoreline to which the setback is being measured, or
could have provided an exception to the shoreline setback only for structures such as
docks and boathouses that must be located close to the shoreline.              Without such
exceptions or such different definitions, the Court is bound by the language of the Zoning
Bylaw as written.
       We note that this decision does not resolve whether the proposed deck complies
with the 25-foot Ayard@ setback on the lake shore side of the property. However, that issue
depends upon facts as to Appellants= lake shore property boundary beyond the jurisdiction
of this Court to establish, and may also depend upon arguments as to whether the 75-foot
shoreline setback supersedes or is in addition to the 25-foot yard or property line setback.
       Accordingly, based on the foregoing, the Town=s Motion to withdraw its consent to
paragraph 13 of the Stipulated Facts is GRANTED. Appellants= Motion for Summary
Judgment is GRANTED and the Town=s Motion for Summary Judgment is DENIED, in that
the plain language of the Zoning Bylaw does not require the proposed deck to comply with
the shoreline setback.
       On or before July 20, 2000, the parties shall file a brief statement in writing (which
they may fax to the Court if they wish at 479-4487) as to whether this decision and order
concludes this appeal, or whether matters remain to be scheduled for a hearing.

       Done at Barre, Vermont, this 12th day of July, 2000.




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_________________________________________________
     Merideth Wright
     Environmental Judge




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