                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Berger & Katz Expansion Applications         Docket Nos. 119-7-10 & 141-9-11 Vtec
(Appeal from City of South Burlington Development Review Board decision)

Title: Motion for Reconsideration and Clarification (Filing No. 10)
Filed: June 7, 2012
Filed By: Applicants/Appellants Claudia Berger and Sheldon Katz

Response in opposition filed on 6/11/12 by Appellee City of South Burlington

 ___ Granted                   X Denied                      ___ Other


        In their Motion for Reconsideration, Applicants assert that their improvements,
specifically their proposed new front porch, need only be reviewed for conformance with
Regulations Section 3.11(B)(3), and therefore Question 3, addressing construction of the new
front porch, is no longer before this Court. Applicants are mistaken in this regard, since their
residential dwelling is a non-complying structure and the Regulations impose other
“requirements and restrictions” on non-complying structures. See Regulations § 4.08(F).
Applicants’ proposed improvements, including the new front porch, must therefore satisfy
other provisions of the Regulations, including Sections 4.08(F)(2) and (3). Accordingly,
Question 3 of the 2011 Statement of Questions remains before the Court.

         Applicants also contend that the Court should reconsider its ruling concerning
Questions 1 and 2, that is, concerning the proposed enclosure of the front porch and rear deck.
We do not disagree with the general land use tenets that Applicants assert to support their
argument, including the general provision that uncertainty in land use regulations “must be
decided in favor of the property owner,” since land use regulations represent a community’s
restriction on private property rights. See Appeal of Weeks, 167 Vt. 551, 555 (1998) (quoting In
re Vitale, 151 Vt. 580, 584 (1989)). However, this canon of construction applies in the case of
uncertainty in land use regulations, and we see little ambiguity in the regulatory provisions at
issue here. Moreover, a factual dispute exists regarding the proposed improvements, including
the nature of the porch and deck enclosures and whether additional interior square footage will
be created by these improvements. We conclude that a trial is the most efficient means by
which to resolve these factual disputes.

       We are guided in our review of Applicants’ proposed improvements by another general
tenet of land use law that specifically relates to improvements and expansions to non-
In re Berger & Katz Expans Apps, Nos. 119-7-10 & 141-9-11 Vtec (EO on Mot for Reconsid) (06-11-12) Pg. 2 of 2


conforming structures: that the “prime purpose behind zoning is to bring about the orderly
physical development of a community by confining particular uses to defined areas . . . A goal
of zoning is to gradually eliminate nonconformi[ties] . . . because they are inconsistent with the
purpose of developing use-consistent areas in communities.” In re Gregoire, 170 Vt. 556, 558
(1999) (citations omitted). Trial is necessary to determine whether Applicants’ improvements,
as proposed, will further or hinder this purpose of zoning.

       Consequently, we DENY Applicants’ motion for reconsideration.                         We clarify that
Question 3 of the 2011 Statement of Questions remains before this Court.




_________________________________________                                          June 11, 2012        _
       Thomas S. Durkin, Judge                                                         Date
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Date copies sent to: ____________                                           Clerk's Initials _______
Copies sent to:
  David Edwards, Attorney for Appellants/Applicants Claudia Berger and Sheldon Katz
  John H. Klesch, Attorney for Appellee City of South Burlington
  Interested Person Bruce H. Alvarez




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