Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                            ENTRY ORDER

                            SUPREME COURT DOCKET NO. 2013-426

                                           JUNE TERM, 2014

 In re Williamson Third Tier Application                }    APPEALED FROM:
                                                        }
                                                        }    Superior Court,
                                                        }    Environmental Division
                                                        }
                                                        }    DOCKET NO. 55-4-12 Vtec

                                                             Trial Judge: Thomas G. Walsh

                            In the above-entitled cause, the Clerk will enter:

        This appeal involves a third tier structure built by applicant Michael Williamson on his
home in the Town of Georgia. He appeals the environmental court’s order affirming a decision
of the Town’s Zoning Board of Adjustment, which denied applicant’s attempts to obtain
approval for the structure because the third tier exceeded maximum height restrictions and was
not eligible for any exemption. On appeal, applicant argues that the environmental court’s
construction of the relevant statutes and zoning regulations was in error and that his third tier is
exempt from the height requirements as a solar collector or belfry, or can receive a variance as a
renewable energy resource structure. Applicant also argues that the Town failed to properly
issue a decision and his application should be deemed approved. We affirm.

        The record reveals the following facts. Applicant owns property improved with a single-
family home in the Town’s L-1 Lakeshore District. The residence is located within 200' of the
Lake Champlain shoreline. In 2009 or earlier, applicant constructed an octagon-shaped third-
floor addition, which measured 11' wide and 9.5' tall.1 The base of the tower is about 14' above
grade. The addition has a wood-stud frame with a floor, walls, and windows. There are five
generally north-facing windows, while the south-facing walls are solid. There is a twelve-inch
diameter bell installed and hanging from the interior ceiling of the addition. The addition is
accessed via a trap door and a step ladder. In 2009, photovoltaic collectors were installed on the
exterior of the south side, but a wind storm damaged the collectors and they have not been
replaced.

        In September 2009, the Town zoning administrator notified applicant that the third tier
required a permit. Applicant filed a zoning permit application with the Town for a “solar
collector.” The zoning administrator denied the application, concluding that applicant’s structure
did not comply with Town Regulation § 3140.4.9, which sets a maximum building height of 16'
for new construction within 200' of Lake Champlain. Applicant then filed a zoning permit
application for a “rooftop solar collector,” which is exempt from the height restriction. The
zoning administrator also denied that application for noncompliance with the maximum building

        1
            This structure is referred to throughout this decision as the third tier.
height restriction, concluding that the third tier did not qualify for exemption as a rooftop solar
collector. Applicant next filed a conditional use application with the Town seeking approval for
his structure as a belfry. Applicant concurrently filed an application seeking a height variance
for a “renewable energy resource structure.” Applicant also appealed the denial of the zoning
permit application to the zoning board. Following a public hearing, the zoning board issued a
written denial of all applicant’s requests on April 18, 2012.

         Applicant appealed to the Environmental Division. He included eight questions to be
decided, which all related to the interpretation of the relevant Town zoning regulations and
statutes, and questioned whether applicant’s third tier qualified as a belfry, renewable energy
resource structure or rooftop solar collector. Applicant subsequently moved to amend his
statement of questions to include “Did the Zoning Board of Adjustment properly render its
decisions?” based on information that the zoning administrator had participated in the board’s
deliberative session. The court held a de novo hearing. The court concluded that applicant’s
third tier did not qualify as a rooftop solar collector, was not a belfry, and was not eligible for a
variance as a renewable energy resource structure because it was not unusually difficult or
unduly expensive for applicant to build a suitable structure in conformance with the Town
regulations. The court granted applicant’s motion to amend the statement of questions, but
concluded that any impropriety during the board deliberations was cured by de novo review in
the environmental court and that the Town timely rendered its decision. Applicant filed a notice
of appeal to this Court.

        On appeal, applicant renews the arguments made to the environmental court. Applicant’s
first argument centers on the building-height restriction in his zoning district. Applicant’s
property is located in the L-1 Lakeshore District. The Town zoning regulations state that the
purpose of this district is to “protect the water quality of the lake and the recreational potential
and natural beauty of the shoreline.” The regulations set a maximum building height of 16' for
new construction or additions within 200' of the shoreline to “preserve visual access to Lake
Champlain.”

         On appeal, applicant argues that the height limitation of 16' does not have an appreciable
impact on visual access to Lake Champlain and is therefore an impermissible regulation. The
environmental court concluded that the height limitation of 16' was a permissible restriction.
Zoning regulations are a valid exercise of the police power as long as the owner retains “some
practical use of his land” and there exists “a public good or benefit of sufficient magnitude to
justify the burdening of the affected property.” Hinsdale v. Vill. of Essex Junction, 153 Vt. 618,
626 (1990) (quotation omitted). Zoning bylaws are presumed valid and will be affirmed unless
the challenger demonstrates that the zoning is “clearly and beyond dispute . . . unreasonable,
irrational, arbitrary or discriminatory.” McLaughry v. Town of Norwich, 140 Vt. 49, 54 (1981)
(quotation omitted).

         Applicant accepts that the Town has the authority to restrict development to protect the
view of Lake Champlain, but argues that the height restriction of 16' does not protect the view
since few people can see above even 8' and the Town’s concurrent regulation prohibiting
removal of large trees restricts views. Applicant has failed to demonstrate that the height
restriction lacks any reasonable relationship to the protection of shoreline views. See City of
Rutland v. Keiffer, 124 Vt. 357, 359 (1964) (explaining that zoning ordinances must be
“reasonably related to public health, safety, morals, or general welfare”). While applicant
contends that views are already obstructed by existing buildings and by trees, which may not be

                                                 2
removed, these obstructions do not make the height restriction unreasonable. Whatever other
view restrictions exist, it is reasonable for the Town to seek to limit additional obstructions.
Further, the distinction between trees and buildings is a reasonable one. As to the exact height
chosen by the Town, this was reasonable. It is undeniable that a shorter structure allows for
greater view of the surrounding shore, both from the neighboring land and from the lakeside.
The Town’s choice of 16' was well within a reasonable limit and not invalid.

         Applicant’s next arguments concern the interpretation of town zoning regulations
exempting certain structures from the height requirement. First, applicant contends that his third
tier is exempt from the height requirement because it is a rooftop solar collector. This argument
rests on the application of the exemptions in the zoning regulations, which provide: “All
structures shall comply with the height restrictions in the district regulations. Chimneys, non-
commercial antenna structures, rooftop solar collectors extending less than 10' above
roofs, . . . are exempt from this requirement.” According to applicant, because his third tier
contains solar collectors, it is exempt from the height restriction.

        Zoning regulations are interpreted “according to the general rules of statutory
construction.” In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 6, 175 Vt. 335. The paramount
goal is to implement the intent of the enacting body and this is done by first looking at the
regulation’s plain meaning. Id. On appeal from the environmental court, this Court “will uphold
the environmental court’s construction of a zoning regulation unless the construction is clearly
erroneous, arbitrary or capricious.” In re John A. Russell Corp., 2003 VT 93, ¶ 35, 176 Vt. 520
(mem.) (quotation omitted).

        The environmental court construed the words “rooftop solar collectors” as referring to
solar panels and the mounting systems necessary for supporting solar panels, but not including
an enclosed structure that also had solar panels. The court concluded that applicant’s third tier
was a structural addition and not a rooftop solar collector, and therefore not exempt from the
height restriction.

        The environmental court’s construction of “rooftop solar collectors” was not clearly
erroneous, arbitrary, or capricious. The environmental court applied a reasonable meaning,
construing the exemption as allowing the installation of solar collectors that require some type of
mounting system, which attaches the actual collectors to a rooftop. This is consistent with the
apparent intent of the exemption—to allow solar collectors to be attached to a roof even if they
exceed the height requirement. Applicant’s third tier does not fit this definition. Applicant built
an enclosed structure. Simply because applicant placed solar collectors on some portion of the
structure does not transform it into a rooftop solar collector. There was no error.

        Applicant’s next argument is that the third tier qualifies as a belfry. The zoning
regulations state that the zoning board can grant a conditional use permit for certain structures
that exceed the maximum height restriction, including “[b]elfries.”

        The environmental court noted that belfries are commonly associated with churches and
government buildings. Thus, the court construed the term belfry in the regulations as limited to
such public buildings and not encompassing bells installed in a private residence. Applicant
argues that the environmental court’s interpretation of the term is erroneous because he contends
that the meaning of belfry includes any tower that holds a bell and that there is no restriction on
such tower being attached to a government building or church.

                                                3
        There are no grounds for reversal as the environmental court’s interpretation of “belfries”
was not clearly erroneous, arbitrary or capricious. See id. (setting forth standard of review).
While the dictionary definitions offered by applicant do not require a belfry to be part of a
church or government building, they certainly describe a structure that is not typically found in a
residence, referring to a belfry as being attached to a church, being part of a steeple, or being
used in defensive structures or warfare.2 It was not erroneous for the environmental court to use
its common sense and construe the use of “belfries” in the zoning regulations as limited to
particular public buildings and not applicable to private residences. See In re Laberge Moto-
Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (mem.) (explaining that zoning regulations should be
construed with common sense and with legislative purpose in mind). As the environmental court
noted, allowing applicant’s third tier to qualify as a belfry would allow any landowner to exceed
the maximum height restriction by simply putting a bell the noncomplying structure. This would
contravene the intent of having a height restriction in the first place and such a result should be
avoided. See Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986) (explaining that
because paramount function is to give effect to legislative intent, literal sense of word must yield
where it conflicts with legislative policy).

        Applicant also contends that his third tier is an energy resource structure and therefore
eligible for variance approval. Pursuant to statute, where a variance is requested for a structure
“that is primarily a renewable energy resource structure,” the environmental court can grant the
variance if, among other things, “[i]t is unusually difficult or unduly expensive for the appellant
to build a suitable renewable energy resource structure in conformance with the bylaws.” 24
V.S.A. § 4469(b). The trial court agreed that applicant’s third tier could be construed as a
renewable energy resource structure because it collects or converts sunlight energy and waste
heat, but concluded that it was not unusually difficult or unduly expensive to build suitable
alternative structures in conformance with the regulations.3 In particular, the court concluded
that passive cooling would be more effectively accomplished through an electronically
controlled skylight, passive heating through southerly windows in the lower part of the
residence, and solar collection through a roof mounted system, or a ground-mounted system.

       On appeal, applicant argues that the environmental court erred in concluding that there
were reasonable alternatives that complied with the zoning regulations, because the court looked
at each energy use individually rather than considering whether there was an alternative that
could perform all the uses as effectively as the third tier. There was no error. It was consistent
with the statutory language for the court to look at each proposed renewable energy use
separately and determine if an inexpensive and relatively easy alternative existed. Further, there
was credible evidence to support the court’s finding that it is not unusually difficult or unduly
expensive to build suitable renewable energy structures in conformance with the regulations.
See In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188 (explaining that this
Court gives deference to findings of environmental court and will affirm unless clearly

       2
         At trial, the parties stipulated to the admission of numerous dictionary definitions of the
word “belfry.”
       3
            The Town has filed a cross-appeal, arguing that the environmental court erred in
concluding that the third tier meets the statutory requirement that it be “primarily a renewable
energy resource structure.” 24 V.S.A. § 4469(b). We need not reach this question because, even
if the third tier qualifies as such a structure, we affirm the environmental court’s conclusion that
there are reasonable alternatives that would comply with the zoning regulations.
                                                 4
erroneous). Therefore, the environmental court did not err in concluding that applicant’s third
tier fails to meet the variance requirements.

        Applicant’s final arguments concern the manner in which the zoning board rendered its
decision. The basic facts surrounding consideration by the zoning board are as follows. The
zoning board held a public meeting on March 19, 2012 and discussed all three of applicant’s
pending requests: the conditional use application, the request for a variance, and the appeal of the
zoning administrator’s denial of the building permit. Applicant was present with his lawyer. In
support of his applications, applicant presented the opinion of an expert. The board met again on
April 2, 2012. The minutes indicate that at the end of that meeting, the board went into a
deliberative session to continue deliberations on applicant’s requests. The board issued a written
denial of applicant’s requests, which is dated April 18, 2012 and signed by the board chair.

        Applicant first contends that the zoning board failed to issue a timely decision. Under 24
V.S.A. § 4464(b)(1), once a municipal panel has closed the proceedings on an application, it
“shall adjourn the hearing and issue a decision within 45 days after the adjournment of the
hearing, and failure of the panel to issue a decision within this period shall be deemed approval
and shall be effective on the 46th day.” Applicant argues that there is insufficient evidence to
demonstrate that the zoning board agreed on a decision prior to May 4, 2012, which is 45 days
from the close of proceedings on March 19, 2012. The written decision, dated April 18, 2012, is
signed by the zoning board chair and indicates the names of the board members “present and
voting for approval of the written findings and decision.” Applicant contends this must be in
error since the written decision was not prepared prior to April 2, and the board did not meet
after that before April 18.

        The evidence supports the environmental court’s finding that there was no deemed
approval because the zoning board issued a timely decision on April 18, 2012. A written
decision was issued that day, signed by the chair and indicating that the other board members
were in agreement. That the zoning board did not hold a public meeting between April 2 and
April 19, 2012 does not undermine the validity or timing of the decision. The board was not
obligated to demonstrate that its members gathered in person to approve the written decision.
Because the evidence demonstrates that the board issued a decision within forty-five days, there
are no grounds to grant deemed approval.

        Applicant also argues that reversal is warranted because the zoning administrator
improperly participated in the zoning board’s deliberative session on April 2, 2012. Applicant
contends that the zoning administrator was an interested party having testified against applicant’s
appeal of the building permit denial, and should not have had ex parte access to the board’s
deliberations.

        Certainly, applicant was entitled to a fair trial before an impartial decisionmaker when he
appealed to, and petitioned, the zoning board. See In re JLD Props. of St. Albans, LLC, 2011
VT 87, ¶ 6, 190 Vt. 259 (“Municipal zoning hearings, like any quasi-judicial administrative
proceedings, must faithfully observe the rudiments of fair play.” (quotation omitted)). Assuming
that the presence of the zoning administrator at the deliberative session impaired the impartiality
of the proceedings, we nonetheless conclude that the appropriate remedy is not deemed approval
of applicant’s third tier, as asserted by applicant. Any harm caused by the presence of the zoning
administrator was cured by the de novo review in the environmental court. Id. ¶ 10. De novo
review cures all but the most egregious due process violations. Id. Here, the presence of the

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zoning administrator during deliberations was a case-specific irregularity. It was not a systemic
or structural problem that could not be cured by a de novo hearing. See id. (explaining that de
novo review is inadequate to cure systemic or structural errors that “undermin[e] public
confidence in the procedural framework as a whole”). Therefore, there are no grounds for
reversal.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Geoffrey W. Crawford, Associate Justice




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