                                 STATE OF VERMONT

                               ENVIRONMENTAL COURT


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In re: Appeals of                  }
 Ernest and Janet Marcelino        }      Docket Nos. 181-11-97 Vtec and 122-7-99 Vtec
                                   }
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                                   Decision and Order
       Appellants Ernest and Janet Marcelino have appealed from two decisions of the
Zoning Board of Adjustment (ZBA) of the Town of St. Albans. The first, appealed in Docket
No. 181-11-97 Vtec, upheld a Notice of Violation1 regarding the lakeshore setback of the
house constructed on Appellants= property. The second, appealed in Docket No. 122-7-99
Vtec, denied Appellants a variance for the as-built location of their home. Appellants are
represented by Edward D. Fitzpatrick, Esq.; the Town is represented by David A. Barra,
Esq.; Intervenor Bruce Foerster is represented by Mark L. Sperry, Esq. and Eric M.
Knudsen, Esq. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. The parties were given the opportunity to submit written requests for
findings and memoranda of law. Upon consideration of the evidence and the written
memoranda and proposed findings, the Court finds and concludes as follows.
       On October 17, 1995 Appellants acquired an approximately 96' x 232' (22,272
square foot) lot of land with an existing mobile home on the shore of Lake Champlain in the
Lakeshore zoning district of the Town of St. Albans. The mobile home had been located
on the property since 1969, thus pre-dating the adoption of zoning. The minimum lot size
per dwelling unit is 40,000 square feet; a single family dwelling is a permitted use.
       At the same time, Appellants also acquired a neighboring property with other
relatives. The neighboring parcel and the subject lot had been part of a single lot
       1
         We note that no enforcement action has been brought, and no injunctive relief is
sought from this Court.




                                             1
approximately 192' x 232' in area. Prior to acquiring the two properties, Appellants spoke
with the then Zoning Administrator Ernest Levesque to inquire whether the two lots would
be considered separate building lots. That issue is not now before the Court. Appellants
also told him prior to acquiring the properties that they planned to remove the existing
mobile home and replace it with a house. He informed them, correctly, that they could
replace the mobile home with another home in the same location provided they did so
within 18 months. He also informed them, correctly, that if they were going to build in
another location, they would have to meet the setback requirements of the ordinance.
Appellants did not inquire of Mr. Levesque regarding what setbacks were required for new
rather than replacement construction before they purchased the lot. Appellants did not
acquire or read a copy of the Town=s Zoning Bylaws prior to purchasing the property.
       Appellants= property boundary on the lake side of the lot is measured to the low
water mark. Accordingly, any tax appraisals or dimensional measurements related to the
property boundaries are measured to the low water mark. On the other hand, while the
dimensional requirements of the Zoning Bylaws in the Lakeshore district require a 25-foot
setback to the property boundaries, they also require a more restrictive 75-foot lakeshore
setback to the mean water mark of the lake, defined as elevation 95.50 feet above sea
level. This requirement is clearly stated in the Zoning Bylaws. '315(3).
       The existing mobile home had an approximately 9' x 15' entrance porch or addition
on its easterly side, away from the lake. The mobile home, exclusive of the entrance
porch, was approximately2 122 feet wide and 56 feet long, and was oriented with its long
side facing the lake.     The area of the footprint of the original mobile home was
approximately 828 square feet. The mobile home, exclusive of the entrance porch, was
located on the property entirely within (that is, westerly of) the 75-foot lakeshore setback,
with its northeast corner touching that line.     Measured perpendicularly to the Lake
Champlain mean water mark, the mobile home=s northwest corner was 63 feet from the
mean water mark and its southwest corner was 56 feet from the mean water mark.


       2
         Measurements of the mobile home not presented in testimony are measured by
scale from Intervenor=s Exhibit 6.


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       Thus at the time Appellants purchased the parcel, it was conforming as to use. It
was non-conforming as to lot size3, and the location of the mobile home also made it a pre-
existing non-complying structure with regard to the lakeshore setback. The parcel was
therefore subject to '321 of the Zoning Bylaws. Under ''320 and 321, the mobile home
could be replaced by a dwelling in the same footprint within 18 months of its removal, and
could be enlarged or extended within the lakeshore setback area only with ZBA approval of
a variance. Of course, new construction to the east of (that is, complying with) the
lakeshore setback line would have required only permit approval of the Zoning
Administrator.
       An easement for an electric utility line passes across the property, along and to the
west of the gravel drive. It turns to the east in front of the present house or what was the
porch of the mobile home, and continues off the property at its easterly boundary. The
easement limits the extent to which the house could be located easterly of the lakeshore
setback line within the other constraints of the property. Such an easement for a utility line
can be relocated by agreement with the Central Vermont Public Service Corp. (CVPS).
Appellants applied in June of 1997 to relocate the easement and utility line and were
granted permission, but did not act on that application, which has since expired.




       3
        If considered together with the property Appellants acquired with their relatives,
the combined lot measures approximately 192' x 232' (44,544 square feet) and would be
conforming as to lot size, but would only allow the construction of a single dwelling.




                                              3
       Appellants had the mobile home removed. Appellants did not acquire or read a
copy of the Town=s Zoning Bylaws pertaining to their property prior to removing the mobile
                       4
home on the property .
       On October 18, 1995, the day after acquiring the property, Appellants applied for
and obtained a septic system permit for the parcel. Its location was approved by the
Town=s Health Officer, Dean Pacquette, who informed them that their septic system had to
be at least 100 feet from the lake. On October 25, 1995, Mr. Pacquette approved the
septic system as installed. The septic tank is located approximately 22 feet easterly of the
mobile home=s former location, and the leach field is located approximately 15 feet easterly
of the septic tank, on the easterly side of the gravel drive serving the property. Appellants
did not acquire or read a copy of the Town=s Zoning Bylaws pertaining to their property
prior to installing the septic tank and field on the property.
       Between the time of installation of the septic system in October of 1995 and the time
they applied for a permit for construction of their house in October of 1996, Appellants did
not acquire or read a copy of the Town=s Zoning Bylaws pertaining to their property, even to
determine whether they needed to apply for a permit to the Zoning Administrator or for
other approval or a variance to the ZBA. In August of 1996, Intervenor Foerster and
Appellants met at the property and discussed the fact that Appellants intended to build a
house and its general location, but did not discuss the specific lakeshore setback
requirements. Intervenor Foerster built his own house in compliance with the 75-feet-from-
mean-water lakeshore setback.
       On two occasions prior to October 4, 1996, Appellants met with Zoning

       4
        The evidence does not reflect when the mobile home was removed, but all parties=
references to it suggested that it was removed early in Appellants= ownership of the
property. If it was removed prior to the work on the septic system, then the 18-month
period expired approximately at the end of April, 1997. If it was removed later than that,
the 18-month period would have been correspondingly extended.




                                              4
Administrator Levesque. On at least one of those occasions he suggested that they obtain
a copy of the Zoning Bylaws; and they told him they were doing so. On October 4, 1996,
Appellants applied to the Zoning Administrator for a permit to construct a house on their lot.
The form states that AAll construction to be completed in accordance with the Zoning
Ordinance of the Town of St. Albans and State of Vermont, except for variances
requested.@
       Zoning Administrator Levesque accepted the application although it was missing
information required by the form and it did not contain a plot of the lot and building
improvements. He told them to bring in the sketch plan later, as they had not then decided
where to place their structure. The form required the applicant to show the width of the
front, side and rear yards, but did not require any specific information for lakeshore lots,
and did not require the applicant to depict the mean water mark of the lake. Appellants=
application and permit stated that it was for Aconstruction of a single family home that
meets setbacks. Septic system is installed.@ That language was placed on the form by the
Zoning Administrator, prior to its being signed. The form stated above the signature line
that AThe undersigned applicant certifies that the information above is correct.@ Appellant
Janet Marcelino signed the application.
       Zoning Administrator Levesque issued the permit at the time of the application. It
was not appealed. Intervenor Foerster saw the permit, but did not appeal it because it
required the construction to meet the setback requirements. The permit was valid for a
year from October 19, 1996. Only the conditions written in a permit or a ZBA decision are
enforceable; neither the applicant nor the town can alter or add to those conditions by their
oral representations. In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978); In re
Kostenblatt, 161 Vt. 292, 298 (1994). Among other reasons, the Supreme Court has
explained that A[w]ithout the requirement of explicit conditions, . . . aggrieved parties would
have difficulty appealing permits for they would have no notice of all conditions imposed,
and similarly, subsequent purchasers would lack notice of all restrictions running with the
property.@ Id., 161 Vt. at 298. That permit was not appealed, and cannot be challenged.
Levy v. Town of St. Albans Zoning Bd. of Adjustment,152 Vt. 139, 142 (1989); Graves v.
Town of Waitsfield, 130 Vt. 292, 295 (1972).

                                              5
       After being issued their permit, Appellants did not acquire or read a copy of the
Town=s Zoning Bylaws pertaining to their property, even though Ms. Marcelino had certified
the correctness of the information on the permit application that the house would be
constructed Athat meets setbacks,@ and even though the permit form stated that all
construction was to be completed in accordance with the Town=s Zoning Ordinance except
for variances requested. Their failure to ascertain the requirements of the ordinance as to
setbacks was not reasonable under the circumstances.
       Rather, after being issued their permit, Appellants told Zoning Administrator
Levesque that they did not know what the zoning setback requirements were. He told them
that the setbacks were 25 feet from the sides, 40 feet from the road, and 75 feet from the
lake. He told them that the lakeshore setback was 75 feet, but incorrectly told them that it
was measured from their lakeside property line (the low water mark). It was not reasonable
of them to accept the Zoning Administrator=s representation as to the requirements of the
Zoning Bylaws, rather than to read the Zoning Bylaws for themselves, as the Zoning
Administrator is without authority to vary the provisions of a written permit by his oral
representations, and the written permit obligated Appellants to comply with all setbacks
and all other requirements of the Zoning Ordinance independently of any representations
of any town official.
       At the time of receiving the building permit, Appellants were still entitled to build
within the lakeshore setback in the footprint of and to the extent that the mobile home had
occupied the lakeshore setback, as 18 months had not elapsed from the time they had
removed the mobile home. '320(c). At that time, Appellants were not entitled to extend the
nonconforming structure towards the west within the lakeshore setback, even with Board of
Adjustment approval of a variance under '321, because the Aaspect or degree of non-
compliance@ may not be increased. At that time, Appellants were entitled to extend the
nonconforming structure towards the east but within the lakeshore setback, but only upon
Board of Adjustment approval of a variance under '321. At that time, Appellants were
allowed to build to the east of the lakeshore setback, but a variance would still have been
required for such construction for a different reason: because the lot is undersized.
       Appellants did not begin to build under their permit until May of 1997. That date was

                                             6
within the one-year validity dates of the permit, but may have been beyond the 18-month
period for replacement of a non-conforming use under '320(c) (see footnote 4 above).
They planned a larger house, 1683 square feet in area, with an extensive porch on the lake
side of the house. The new house extends approximately seven feet to the west of the
westerly face of the former mobile home, and the new deck extends approximately
nineteen feet to the west of the westerly face of the former mobile home.
       Because Appellants= advice from Zoning Administrator Levesque had been oral,
prior to beginning construction, Appellants= contractor wisely recommended that Appellants
provide a sketch of the property to the new Zoning Administrator Brian Bigelow, and that
they request some type of written acknowledgment of the proposed location for the new
structure.
       Appellants provided a sketch to Zoning Administrator Bigelow on May 27, 1997. As
of this date the location of the proposed house had been staked out and some site work
had been done, but no construction had begun and the foundation had not been poured.
Two versions of that sketch were submitted in evidence. Appellants= Exhibit E reflects
marginal notations5 written on a copy of the sketch given to Appellants that day by Zoning
Administrator Bigelow; Intervenor=s Exhibit 5 reflects marginal notations6 written on the
copy of the sketch retained in the file by Zoning Administrator Bigelow. The most that
Zoning Administrator can be said to have approved or ratified on May 27, 2000, by the
copy of the sketch returned to Appellants, is that they were bound by the terms of their
October 4, 1996 permit, and that from the sketch, the side yard setbacks appeared to be
adequate.     Zoning Administrator Bigelow did not advise Appellants to proceed to
construction or to refrain from proceeding to construction, nor did he advise them to apply
for a variance.
       This sketch does not show or purport to show the mean water mark of the lake.
Rather, it shows the side setbacks as 25 feet on each side; it shows a distance of 10 feet

       5
         Stating: APermit issued 10/4/96; side yards adequate; encouraged to investigate
flood ins[urance].@
       6
           Stating: ADropped off 5/27/97.@


                                             7
from the front of the house to the power line; it shows the house as 46 feet long and 28
feet wide, with an additional ten feet of enclosed width towards the lake on the southwest
corner of the house, plus a 10-foot-wide unenclosed deck surrounding that extension only.
A measurement is shown of 30 feet from the deck to a line marked as the Abank@ of the
lake, and a measurement of 82 feet from the deck to a line shown out in the lake but not
identified as either a property boundary, or the low water mark, or the mean water mark.
The house as constructed was 46 feet long, but extended the additional ten feet of
enclosed width across the westerly side of the house to include an enclosed porch, so that
it was 38 feet wide, with an approximately 12-foot-wide deck extending further to the west
from that point.
       Construction on the foundation for Appellants= house commenced after their May 27,
1997 visit to Zoning Administrator Bigelow, some time in early June of 1997. By June 21,
1997, they had completed the foundation and cellar walls. With the prior site work, the
foundation and cellar walls represented 25% to 30% of the cost of construction. On June
28, 1997, Appellants received a letter dated June 27, 1997 from Zoning Administrator
Bigelow, informing them that he had been requested to investigate the improvements being
made on their property in relation to their permit and application, and requesting a meeting
on-site to discuss the matter. The letter advised them that he would be reporting informally
to the ZBA at its meeting on July 10, 1997. The letter was not a notice of violation and did
not require them to stop work. By that time the house was substantially framed and the
work done on the house represented approximately 50% of the cost of construction. At
that time, it was not reasonable for them to have continued with construction knowing that
the status of their permit was in question. As the issue of damages does not arise in the
present appeal (see text at footnote 7), we do not now determine whether damages could
have been mitigated by stopping construction either at the foundation stage or at the
framing stage, that is, at what stage it would have become more expensive to move the
structure. Appellants= builder informed them that after the framing stage, it would not be
substantially more expensive to move a completed structure than a framed-in structure.
       Appellants met at the site with Zoning Administrator Bigelow on June 30, 1997, at
which time he explained to them that the setback to the lake was improper and that it

                                             8
should have been measured from the mean water mark. He told them that they would
have to appear before the ZBA at its July 10, 1997 meeting. He did not tell them to stop
construction; rather, he acknowledged that it would be a hardship for them to stop
construction. As of the July 10, 1997 ZBA meeting, they stopped construction, but later
installed the windows and roof to protect the structure from the weather. As of the Notice
of Violation on July 29, 1997, the house was 85% to 90% completed.


Docket No. 122-7-99 - Variance Application
       In order to qualify for a variance, Appellants must meet all five requirements of '305:
              (1) That there are unique physical circumstances or conditions, including
      irregularity, narrowness, or shallowness of lot size or shape, or exceptional
      topographical or other physical conditions peculiar to the particular property, and
      that the unnecessary hardship is due to such conditions, and not the circumstances
      or conditions generally created by the provisions of this bylaw in the neighborhood
      or district in which the property is located;
              (2) That because of such physical circumstances or conditions, there is no
      possibility that the property can be developed in strict conformity with the provisions
      of this bylaw and that the authorization of a variance is therefore necessary to
      enable the reasonable use of the property;
              (3) That such unnecessary hardship has not been created by the appellant;
              (4) That the variance, if authorized, will not alter the essential character of
      the neighborhood or district in which the property is located, nor substantially or
      permanently impair the appropriate use or development of adjacent property, nor be
      detrimental to the public welfare; and
              (5) That the variance, if authorized, will represent the minimum variance that
      will afford relief and will represent the least modification possible of this bylaw.
Appellants= parcel meets only subsection (4) of these five provisions. As it must meet all
five in order to qualify for a variance, the requested variance must be denied.
       The small size of the lot is not peculiar to this property, but is common to other
neighboring lots, and its narrowness was created by Appellants in the transaction by which
they acquired the property. The property could have been developed in strict conformity
with the bylaw, either by leaving the mobile home in place, or by building a house no more
nonconforming than the mobile home had been. Appellants created the hardship in part by
purchasing an undersized lot after the Zoning Bylaws had been adopted, by building a
house westerly of the preexisting mobile home, and by commencing construction of their


                                              9
foundation after the issue of approval of the house location had been raised in May of 1997
by their contractor. If granted, the variance would not alter the essential character of the
neighborhood or district, which has preexisting homes located as close to the shoreline,
nor be detrimental to the public welfare, but it would permanently impair the appropriate
use of Intervenor=s adjacent property by interfering with the view Intervenor would
otherwise have had of the Lake and foreshore. However, Intervenor did not present
evidence from which the Court could find that such impairment is substantial, as required
by subsection (4). The variance, if authorized, would not be the minimum variance that
would afford relief, as a house could have been constructed entirely to the east of the
westerly face of the former mobile home, which would have required a more minor
variance: only for the small strip of land between the easterly face of the former mobile
home and the lakeshore setback line.


Docket No. 181-11-97 Vtec - Appeal of Notice of Violation
       The issuance of the building permit to Appellants in 1996 was final. Levy v. Town of
St. Albans Zoning Board of Adjustment, 152 Vt. 139, 142 (1989); Graves v. Town of
Waitsfield, 130 Vt. 292 (1972).       A Town is, however, entitled to enforce against
construction or operation that extends beyond the scope of a permit. Town of Bennington
v. Hanson-Walbridge Funeral Home, 139 Vt. 288 (1981). Appellants= construction extends
beyond the scope of their permit as to the lakeshore setback.
       Appellants argue that the Town should be estopped to enforce the lakeshore
setback, based on the representations of then-Zoning Administrator Levesque as to the
setback measurement method=s being from the low water mark. However, because the
zoning application and permit explicitly bound Appellants to comply with the terms of the
zoning ordinance, and because the permit stated that the house would comply with
setbacks, it was not reasonable for Appellants to persist in relying on those representations
to the exclusion of even obtaining and reading the Zoning Bylaws. After the meeting with
Zoning Administrator Bigelow on May 27, 1997, before the foundation work had begun,
Appellants knew that their side setbacks were satisfactory, but that the Zoning
Administrator would need to investigate other issues further, including the lakeshore

                                             10
setback. After that date, it was not reasonable for Appellants to persist in relying on Zoning
Administrator Levesque=s representations to the exclusion of even obtaining and reading
the Zoning Bylaws.
       As of May 27, 1997, before the foundation had been begun, and certainly as of June
30, 1997, when the house was only framed and approximately 50% completed, Appellants=
own actions in commencing and continuing with construction contributed to the problem for
which they now seek estoppel of the Town. Town of Bennington v. Hanson-Walbridge
Funeral Home, 139 Vt. 288, 294 (1981). Therefore they have not made out the elements
of estoppel as to the Notice of Violation.
       Based on the foregoing, it is hereby ORDERED and ADJUDGED in Docket No. 122-
7-99 Vtec that Appellants do not qualify under '320 or 321 for a variance from the
lakeshore setback requirements of the zoning ordinance, and it is hereby DENIED. It is
hereby ORDERED and ADJUDGED in Docket No. 181-11-97 Vtec that Appellants
constructed their home in violation of their 1996 building permit as to the lakeshore
setback, that the Notice of Violation is therefore upheld.


       As no enforcement action has been filed, we do not act on any injunctive relief. We
note that, in an enforcement action, the Town could seek several levels of injunctive relief:
to remove only those portions of the structure within the lakeshore setback and to the west
of the westerly line of the former mobile home location; or also to remove those portions of
the structure within the lakeshore setback but to the east of the westerly line of the former
mobile home location. With regard to estoppel, all that the present decision resolves is that
the Town is not required by the principles of estoppel to allow Appellants to leave their
house in its present position, that is, to grant them a permit or a variance for the house in
its present location. If Appellants are required to remove the deck or move or reconstruct
the house, it will be open to them to argue that the Town should be liable to compensate
them for some part of the costs of doing so. Any questions of whether the Town may be
liable7 to Appellants for any of the costs of that removal are not presented in the present


       7
           As in My Sister's Place v. City of Burlington, 139 Vt. 602 (1981), Appellants have

                                              11
case, and may be within the jurisdiction of the Superior Court rather than the
Environmental Court.


       Dated at Barre, Vermont, this 19th day of July, 2000.




                                   ______________________________________
                                   Merideth Wright
                                   Environmental Judge




not been given the benefit of the incorrect statements of the Zoning Administrator.
However, this does not resolve whether Appellants may be entitled to some compensation
for the reconstruction of the foundation or for some portion of moving or reconstructing the
house. In My Sister's Place, permission to construct the restaurant in the wood-core
building was withdrawn, despite the incorrect representations of the fire inspector, because
of fire safety requirements, but the City was held liable to compensate the restaurant owner
for the monies expended in reliance on that incorrect advice.


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