                                       STATE OF VERMONT

                                ENVIRONMENTAL COURT

                                            }
In re: Bouldin Camp - Noble Road            }       Docket No. 278-11-06 Vtec
        (Appeal of Bouldin)                 }
                                            }

               Decision and Order on Appellant’s Motion for Reconsideration

       Appellant-Applicant Dennis Bouldin appealed from a decision of the Development

Review Board (DRB) of the Town of Fletcher upholding the Zoning Administrator’s denial

of an application for construction at a camp on Metcalf Pond. Appellant-Applicant

represents himself; the Town is represented by Chad Bonanni, Esq.

       Appellant-Applicant has moved to reconsider the Court’s April 23, 2007 decision

granting summary judgment for the Town that Appellant-Applicant’s proposed east side

landing and proposed stairs cannot be considered for approval by the Zoning

Administrator as a permitted use under Table 2.4-5(B) of the Zoning Bylaw for the Town

of Fletcher.

       V.R.C.P. 59(e) “allows the trial court to revise its initial judgment if necessary to

relieve a party against the unjust operation of the record resulting from the mistake or

inadvertence of the court.” Rubin v. Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996).

However, Rule 59(e) is an “extraordinary” remedy that should be used “sparingly.” The

decision of whether to grant a motion for reconsideration under Rule 59(e) lies within the

discretion of the trial court. In re Appeal of Berezniak, Docket No. 171-9-03 Vtec, slip op.

at 3 (Vt. Envtl. Ct., Apr. 6, 2007).



       Appellant-Applicant argues that the Zoning Bylaw does not specifically require an

“accessory structure” to be physically separate from a primary structure and, therefore,



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that the Court should alter its ruling that Appellant-Applicant’s landing and stairs did not

qualify for approval as a permitted use.

       Several sections of the Zoning Bylaw potentially apply to this application. First, as

discussed in the April 23, 2007 Decision, Table 2.4(B) governs permitted uses.1 The only

use category potentially applicable to this proposal in that table is the use category of

“accessory structure,” which includes “temporary docks and permanent stairs and

landings 4 ft. or less in width within the shoreland setback area.” (Emphasis added.) See

Table 2.4-5(D).

       An “accessory structure” is defined as “[a] structure, the use of which is incidental

and subordinate to the principal use or structure and is located on the same lot. Examples

of accessory structures include patios, permanent swimming pools, porches, garages, tool

sheds, workshops, decks and gazebos, boathouses, and docks.” Zoning Bylaw, § 7.2

(emphasis added). The term “structure,” in turn, is defined as “[a]nything constructed,

erected or placed which requires a fixed location on the ground in order to be used;” the

definition specifically includes, “in addition to buildings[:] signs, garages, carports, porches,

patios, swimming pools, and any other outbuildings and building features. Not included

are sidewalks, driveways, and temporary or floating docks.” Id. (Emphasis added.)

       Because the definition of the term ‘accessory structure’ includes porches, and the

definition of the term ‘structure’ includes building features as well as separate buildings,

Appellant-Applicant is correct that the April 23, 2007 Decision should be altered to



       1
         In any event, the Court is required to analyze Appellant-Applicant’s application
under this provision because the Zoning Administrator’s decision had analyzed the
proposed landing and stairs as a permitted use, not as a conditional use. An application
for a conditional use would have had to have gone to the DRB in the first instance, before
it could have been considered by this Court. In re Torres, 154 Vt. 233, 235–36 (1990).
Therefore, the April 23, 2007 Decision expressly did not rule on whether the proposed
landing and stairs could be approved as a conditional use under Table 2.4-5(C). In re:
Bouldin Camp - Noble Road (Appeal of Bouldin), Docket No. 278-11-06 Vtec, slip op. at 6.

                                               2
determine that the proposed stairs and landing fall within the use category of “accessory

structure,” even though they are not intended to be physically separate from the camp

building.

       However, as discussed in the April 23, 2007 Decision, the residence to which the

landing and stairs are proposed to be attached is already a non-complying structure due

to its proximity to the shoreline. Therefore, because the stairs and landing are proposed

to extend a non-complying structure2, the application must also be reviewed under §3.8(A)

of the Zoning Bylaw, which governs non-complying structures.

       Accordingly, the following language, on page five of that decision, is hereby altered

as follows:

              Both the Town and Appellant-Applicant seem to have been treating
       While the various proposals for an attached landing and stairs are as if they
       were within the permitted use category of “Accessory Structure (to include
       temporary docks, and permanent stairs and landings 4 ft. or less in width
       [footnote in original omitted] within the shorel[ine] setback area),” Table 2.4-
       5(B), However, to qualify as an “accessory structure” the proposed structure
       must be separate from the principal structure; that is, it must be incidental
       and subordinate to the principal structure (in this case, the camp building)
       and on the same lot. § 7.2, “Accessory Structure.” The “accessory structure”
       referred to in Table 2.4-5(B) applies to free-standing decks, docks, landings
       and stairs narrower or equal to four feet in width, while any additions to or
       extensions of a non-complying principal structure must instead also be
       analyzed under §3.8(A).

       Section 3.8(A) provides that any non-complying structure “may be allowed to

continue indefinitely,” subject to certain restrictions.     Section 3.8(A)(4) includes the

restriction that non-complying structures “may, subject to conditional use review under



       2
        No inconsistency is created by the fact that a structure in a permitted use category
must nevertheless undergo review as a non-conforming structure; similarly, in a district
in which a single-family dwelling is a permitted use category, an enlargement of a non-
conforming single-family house must undergo review as a non-conforming structure.

                                              3
Section 5.2, undergo alteration or expansion which would increase the degree of non-

compliance . . . .”

       Thus, as discussed in the April 23, 2007 Decision, §3.8(A) requires Appellant-

Applicant to obtain conditional use approval to undertake the construction proposed in his

application. If construction of additional features on a non-complying structure (in such

a way that they increase the degree of non-conformity) were only treated as a permitted

use, under the use category of addition of an accessory structure, the provisions of the

ordinance requiring conditional use review of proposed expansions of non-complying

structures would be rendered surplusage. The Court must avoid construction of ordinance

language that would make it surplusage. In re Dunnett, 172 Vt. 196, 199 (2001); In re:

Hartland Group, 237 North Ave. Project (Appeal of Bjerke, et al.), Docket No. 120-6-05

Vtec, slip op. at 13 (Vt. Envtl. Ct., Dec. 14, 2006). Therefore, the alterations made in the

April 23, 2007 decision do not change its result. Even if the application falls within the use

category of “accessory structure,” it also requires approval as an expansion of a non-

complying structure. As the application was not before the DRB for conditional use

review, the Court cannot reach the merits of whether the proposal qualifies for approval

under §3.8(A).

       Accordingly, it is hereby ORDERED and ADJUDGED that Appellant-Applicant’s

motion for reconsideration of the April 23, 2007 Decision is GRANTED in part, in that the

proposed landing and stairs are not required to be separate from the main structure to fall

within the permitted use category of “accessory structure,” but it is otherwise DENIED, in

that the application must nevertheless be considered by the DRB as a conditional use under

§3.8(A) due to the proposed increase in the degree of nonconformity of the existing

structure.

       If Appellant-Applicant makes such an application and later files a timely appeal of

a DRB decision under that section, any such appeal will be a new appeal in this Court and



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will receive a new docket number. If such an appeal is filed, Appellant-Applicant may

apply to this Court at that time for a waiver of the filing fee. See April 23, 2007 Decision

at footnote 1 and text at footnote 3. As stated in the prior decision, all but Question 4 of

Appellant-Applicant’s Statement of Questions has been addressed on summary judgment.

Appellant-Applicant previously informed the Court that he did not wish to proceed on

Question 4 alone. Accordingly, a judgment order concluding this appeal will issue on

September 21, 2007, unless before that date Appellant-Applicant informs the Court that he

now wishes to proceed on Question 4.




       Done at Berlin, Vermont, this 13th day of September, 2007.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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