                                    STATE OF VERMONT
                                  ENVIRONMENTAL COURT

                                       }
        In re Losier Variance Application
                                       }        Docket No. 79-4-08 Vtec
                                       }
******************************************************************************
                                       }
      In re Losier Notice of Violation }        Docket No. 233-10-08 Vtec
                                       }

                    Decision on Appellant’s Motion for Summary Judgment

        Appellants John and Paulette Losier (“Appellants”) appeal two separate decisions by the
Town of Maidstone Zoning Board of Adjustment (“ZBA”). In Docket No. 233-10-08 Vtec,
Appellants appeal the ZBA’s decision to affirm the issuance of a notice of violation regarding
the placement of a stone wall within ten feet of the northern boundary of Appellants’ property
line, which the ZBA concluded is a violation of the side-yard setback limitation in the Maidstone
Lake Zoning District (“Lake District”). In Docket No. 79-4-08 Vtec, Appellants appeal the
ZBA’s decision to deny Appellants’ application for a variance from the twenty-six-foot building
height limitation in the Lake District.
        Appellants are represented by Oliver L. Twombly, Esq.; the Town of Maidstone
(“Town”) is represented by William P. Neylon, Esq.; Interested Persons Brenda J. Tilton and
Norman A. Vanshaw have appeared in these appeals, representing themselves. Now pending
before the Court is Appellants’ motion, requesting that the Court enter summary judgment on
their behalf in each of the two pending appeals.       The Town opposes both of Appellants’
summary judgment requests. The Interested Persons have chosen not to submit a memorandum
in response to the pending motion.

                           Factual Background & Procedural History
        The following facts are relevant and undisputed, unless otherwise noted:
1.      Appellants own property in the Lake District in the Town of Maidstone. It appears from
the record that Appellants constructed a building on their property, the peak of which measures
at least twenty-eight feet from the ground. Docket No. 79-4-08 Vtec concerns a challenge to the
legality of the height of this building.




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2.      Buildings in the Lake District are allowed a “Maximum Height . . . from ground to peak
of roof” of twenty-six feet.         Zoning Bylaw and Subdivision Regulations for the Town of
Maidstone, VT art. 2, § 203 tbl. 203.03 (adopted July 8, 2002) [hereinafter Bylaws].
3.      These proceedings seem to have begun after the Town of Maidstone Zoning
Administrator (“Administrator”) served Appellants with a notice of alleged zoning violation,
suggesting that the “east side of [Appellants’] new building is approximately 36 feet from peak
of roof to finished grade [and t]he west side of [Appellants’] building is approximately 26 feet
from peak of . . . roof to finished grade.” Letter from Craig Sanborn, Zoning Administrator, to
John and Paulette Losier (July 6, 2007) [hereinafter referred to as “2007 building height NOV”].
4.      Appellants do not appear to dispute the Administrator’s representations that in 2007
Appellants constructed a new building with a roof peak in excess of twenty-six feet. While
unstated, we also presume that Appellants lack a permit authorizing the construction of this new
building in excess of twenty-six feet in height. The record does not reveal whether the Town
took further action upon the 2007 building height NOV.
5.      Appellants thereafter submitted an application to the ZBA for a variance from the twenty-
six-foot maximum height limitation.
6.      On February 28, 2008, the three-member ZBA conducted a public hearing on Appellants’
variance request, but the ZBA adjourned without reaching a decision on Appellants’ application.
7.      Sometime after the February hearing, one member of the ZBA resigned his position,
leaving a two-member ZBA to act on Appellants’ variance request.
8.      On March 6, 2008, the two remaining ZBA members completed their deliberations on
Appellants’ variance request.         No formal vote was taken, but the two members reached a
consensus to deny Appellants’ application. They did not cause minutes from their deliberative
meeting to be kept, but did provide a brief “notation” to memorialize their decision.1
9.      Appellants received notice of the ZBA’s decision on April 7, 2008, which they appealed
to this Court on April 28, 2008.
10.     Docket No. 233-10-08 Vtec concerns a stone wall Appellants already constructed along a
portion of their property boundary.



1
  The date on which the notation was created is unclear from the present record. Nevertheless, the parties do not
dispute that the two-member ZBA resolved to deny Appellant’s application on March 6, 2008.


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11.    On July 15, 2008, the Administrator issued a notice of alleged zoning violation to
Appellants (“2008 stone wall setback NOV”), in which the Administrator alleged that
Appellants’ stone wall was a “structure” within the meaning of the Bylaws and therefore subject
to the setback limitations for the Lake District.
12.    The minimum setback dimension allowed for “each side yard” in the Lake District is ten
feet. Bylaws § 203 tbl. 203.03.
13.    Appellants appealed the 2008 stone wall setback NOV to the ZBA, which the ZBA
affirmed on September 16, 2008.
14.    After Appellants appealed to this Court on October 15, 2008, the two Dockets were
consolidated.

                                             Discussion
       By their motion, Appellants suggest that the material facts, even when viewed in a light
most favorable to those opposing their motion, support a legal conclusion that they are entitled to
judgment as a matter of law in each of these two consolidated appeals, thereby making a trial
unnecessary.     Rule 56 of the Vermont Rules of Civil Procedure, made applicable to
Environmental Court proceedings by V.R.E.C.P. 5(a)(1), directs that summary judgment may
only be granted when “the pleadings, depositions, [and] answers to interrogatories, . . . together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that any
party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). In reviewing a motion for
summary judgment, “the Court must consider the facts presented in the light most favorable to
the nonmoving party.” Madkour v. Zoltak, 2007 VT 14, ¶ 12, 181 Vt. 347. With this legal
backdrop, we begin our review of Appellants’ assertion that summary judgment is appropriate in
each of the two pending appeals.

I.     2008 Stone Wall Setback NOV (Docket No. 233-10-08 Vtec)
       We first address Appellants’ challenge to the 2008 stone wall setback NOV, which is the
subject of Docket No. 233-10-08 Vtec. Appellants assert in their pending summary judgment
motion that the side-yard setback does not apply to their stone wall because the wall is not a
building. The Town counters by arguing that the side-yard setback applies not only to buildings,
but also to structures, including Appellants’ stone wall. The parties’ legal dispute causes this
Court to search through the Bylaws for provisions that provide notice that the ten-foot side-yard
setback applies to stone walls along boundary lines.


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       We are guided by several well-established rules when interpreting a municipal land use
regulation. First, the familiar rules of statutory construction generally apply to interpretations of
zoning ordinances. In re Casella Waste Management, Inc., 2003 VT 49, ¶ 6, 175 Vt. 335, 337
(citing In re Weeks, 167 Vt. 551, 554 (1998)). Ordinances are construed “according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” In re
Stowe Club Highlands, 164 Vt. 272, 279 (1995). If the plain and ordinary meaning “resolves the
conflict without doing violence to the legislative scheme, there is no need to go further.”
Casella, 2003 VT 49, ¶ 6 (quoting Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986)).
However, enforcing land use regulations according to their plain meaning is disfavored when
doing so leads to irrational results, contradicts legislative intent, or undermines the purposes of
the ordinance. Town of Killington v. State, 172 Vt. 182, 188–89 (2001) (citations omitted).
Lastly, we are directed to decide any uncertainty in favor of the landowner, given that “zoning
ordinances are in derogation of common law property rights.” In re Nott, 174 Vt. 552, 553
(2002) (citing Weeks, 167 Vt. at 555). These rules of interpretation guide our analysis of
Appellants’ summary judgment requests in each of the pending Dockets.
       The Maidstone Bylaws mandate that “each side yard” in the Lake District must contain a
setback of at least ten feet. Bylaws § 203 tbl. 203.03. A side yard is defined as the “[y]ard
between the principal building or accessory building and a side lot line.” Bylaws § 602 (defining
“yard, side”). Therefore, table 203.03 of Bylaws § 203 imposes a ten-foot side-yard setback
from any “principal building or accessory building” on a parcel of land.
       The heart of the Court’s analysis involves the meaning of these two terms. A “principal
building” is “[a] building in which is conducted the main or principal use of the lot on which
such building is located.” Bylaws § 602. A “building,” in turn, includes “[a]ny structure for the
shelter, support or enclosure of persons, animals, chattels or property of any kind.” Id. An
“accessory building” is not defined in the Bylaws, but the Town has directed the Court to the
definition of “accessory use” for guidance. The Bylaws define an “accessory use” as “[a] use or
structure on the same lot with, and of a nature customarily incidental and subordinate to, the
principal use or structure” on a parcel of land. Id. A “structure,” in turn, includes “[a]nything
constructed or erected with a fixed location on the ground or attached to something having a
fixed location on the ground,” including “signs, buildings, swimming pools, and mobile homes.”
Id.



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       The Town argues that the ten-foot setback in table 203.03 applies to structures in addition
to buildings because the definitions of “building” and “accessory use” encompass structures.
The Town then concludes that Appellants’ stone wall is a structure under the Bylaws and is
therefore subject to the ten-foot setback. For the reasons detailed below, we disagree with the
Town’s interpretation of table 203.03 and conclude that Appellants’ stone wall is not subject to
the side-yard setback limitations referenced in Bylaws § 203.
       The plain language of Bylaws table 203.03 mandates a ten-foot side-yard setback from a
“principal building or accessory building.” We cannot discern how the Bylaws as written
provide notice to a property owner that something other than a principal or accessory building
must respect a ten-foot side-yard setback. A land use regulation that fails to give a landowner
“fair notice of what . . . can and cannot [be done] with the land” violates constitutional rights to
due process. In re Handy, 171 Vt. 336, 347 (2000). We find it particularly troubling when
applied to the facts before us, given that stone walls along boundary lines are an historical
practice that pre-dates all formal land use regulation in Vermont. See generally Robert Sanford
et al., Stonewalls and Cellarholes: A Guide for Landowners on Historic Features and Landscapes
in Vermont Forests 24 (1995), available at http://www.historicvermont.org/programs/
stonewall%20and%20cellarhouse_pub_screen.pdf.
       The Town’s analysis, justifying that setback limitations apply to all “structures,” appears
strained. Even though the definitions of “building” and “accessory use” both refer to structures,
structure is not synonymous with building. It is clear from the definition of building that only
certain structures qualify as buildings: structures that provide “shelter, support, or enclosure.”
Bylaws § 602. A single stone wall is not a structure designed to shelter, support, or enclose. The
Town suggests that all walls and fences are designed to enclose, yet to fit the definition of
“enclose,” every stone wall or fence would have to “surround on all sides; . . . fence in; [or] close
in” something. See The New American Heritage Dictionary of the English Language 430 (1st
ed. 1979) (defining “enclose”). A stone wall, such as Appellants’, which only runs along a
portion of a boundary line and no further, would not fit the Town’s expanded definition of
“structure.”
       Even if we were to conclude that Appellants’ stone wall is a structure within the meaning
of the Bylaws, it is not a building, which are the only structures for which the Bylaws provide
notice of being applicable to setbacks. Other “structures,” including single stone walls such as



                                                 5
the one constructed by Appellants here, are spared from the obligation to comply with the ten-
foot side-yard setback Bylaws § 203 imposes on principal buildings and accessory buildings.
       We therefore conclude that the 2008 stone wall setback NOV has no legal foundation in
the Bylaws. We therefore VACATE this NOV and GRANT summary judgment to Appellants
in Docket No. 233-10-08 Vtec.

II.    Building Height Variance Request (Docket No. 79-4-08 Vtec)
       Appellants have also appealed the ZBA’s denial of their application for a variance from
the twenty-six-foot height limitation imposed on buildings in the Lake District. Appellants argue
that their variance request should be deemed approved because the ZBA failed to issue a valid
decision within forty-five days after adjourning the February 28 hearing. For the reasons more
particularly detailed below, we decline to apply the deemed approval remedy to these
circumstances.
       A municipal panel must issue a decision within forty-five days after adjourning a public
hearing concerning conditional use review, variances applications, or administrative officer
appeals. 24 V.S.A. § 4464(a)–(b). The “failure of the panel to issue a decision within this period
shall be deemed approval and shall be effective on the 46th day.” Id. § 4464(b)(1).
       This appeal presents a certain twist on the facts that usually support application of the
deemed approval doctrine. Appellants cannot argue here that the ZBA failed to issue a timely
decision since Appellants received notice of the denial on April 7, 2008, which was within the
forty-five-day window. Rather, Appellants argue that the ZBA’s decision was invalid and
ineffective because the ZBA, then having only two members, was not properly constituted.
Under state law, a “board of adjustment for a rural town or an urban municipality shall consist of
not fewer than three nor more than nine persons.” Id. § 4460(b). Appellants therefore argue that
the decision rendered by the two-member ZBA is null and void in law and fact and, as a
consequence thereof, this Court must deem Appellants’ variance application approved as a
matter of law.
       Our Supreme Court has instructed that the remedy of deemed approval should only be
applied conservatively. See In re McEwing Servs., LLC, 2004 VT 53 ¶ 21, 177 Vt. 38. It has
“cautioned [trial courts] against using the deemed approval remedy beyond its purpose ‘to
remedy [zoning board] indecision and protracted deliberations.’” In re Newton Enters., 167 Vt.
459, 465 (1998) (quoting In re Fish, 150 Vt. 462, 464 (1988)) (second alteration in original).


                                                6
Acknowledging that the deemed approval doctrine has the potential “to transform a ‘negative
decision [of the board] into a positive one,’” the Court advises trial courts to reserve the remedy
for cases where it “clearly implements the statutory purpose.” McEwing, 2004 VT 53 ¶ 21
(quoting Newton, 167 Vt. at 465) (alteration in original). To this end, the Supreme Court has
consistently declared that technical defects in the decision-making process do not warrant the
application of deemed approval. Id.; see, e.g., Newton, 167 Vt. at 465–66; Leo’s Motors, Inc. v.
Town of Manchester, 158 Vt. 561, 564–65 (1992); Hinsdale v. Village of Essex Junction, 153
Vt. 618, 625 (1990); Fish, 150 Vt. at 465.
        The Supreme Court has previously rejected the remedy of deemed approval when
presented with facts similar to those in the matter currently before this Court. In Newton, an
applicant sought a zoning permit from the seven-member Town of Fairlee Zoning Board of
Adjustment. Newton, 167 at 461. At the hearing, two members were absent and one member
abstained. Id. When a motion was made to deny the application as presented, only three of the
four members present voted in favor of denial. Id. As a result, the decision did not receive a
majority vote as required by 24 V.S.A. § 4462(a).2 Id. at 464. On appeal, the Environmental
Court declared invalid the vote to deny the application and therefore reasoned that the deemed
approval remedy must apply, given that no valid decision had been rendered. Id. at 463–64.
        The Supreme Court did not disturb the lower court’s determination that the ZBA’s vote
was deficient and therefore void. But the Supreme Court reversed the application of the deemed
approval remedy, reasoning that such an application brought about “a perverse result unrelated to
the statutory purpose” of 24 V.S.A. § 4464(b)(1). Id. at 465. The Court emphasized that the
established purpose of the deemed approval remedy was to discourage “indecision or excessive
deliberation” and that its application in Newton “turns a negative decision into a positive one
with no finding that the landowner meets the requirements of the zoning ordinance.” Id. The
Supreme Court completed this portion of its analysis by stating that the deemed approval remedy
should not be applied “in this wooden fashion.” Id.
        The directive in Newton and the absence of a specific directive in 24 V.S.A. § 4460(b),
coupled with a review of the present record, counsels against applying the remedy of deemed

2
  This Court recalls a practice point gleaned from Newton by municipal attorneys to recommend that a municipal
panel’s motion always be framed in the affirmative; that the motion should pose the question of whether an
application should be approved, even when the consensus is that the application should fail. This procedure
increases the possibility of clarity in a municipal panel’s decision.


                                                      7
approval to the matter currently before the Court. First, the record contains no facts suggesting
that the Maidstone ZBA was either indecisive or entered protracted deliberations. The ZBA
denied Appellants’ variance application in a timely manner, although the Board that did so was
not properly constituted. Applying the remedy of deemed approval would therefore fail to serve
the statutory purpose.
       Second, the Newton Court noted that ZBA member shortages due to absences and
abstentions are not unique. Id. We understand ZBA resignations to be similarly not unique,
particularly given the reliance in Vermont upon volunteers to staff municipal boards. Further,
we know of no statutory directive that compels the deemed approval remedy merely because a
board was improperly constituted.
       Third, the Newton Court also supported its conclusion by noting that the pending
application could not have received sufficient votes for approval, even if the absent members
participated in the decision. Id. at 465–66. In effect, the Newton Court held that a statutory
defect will not facilitate the remedy of deemed approval when curing the deficiency will not
change the result. Here, the two voting members of the ZBA reached a consensus to deny
Appellants’ application. Even if the third member of the Maidstone ZBA had not chosen to
resign, and even if we presume that he would have voted in favor of Appellants’ application, the
vote on the application would have failed for lack of a majority of votes in favor of the
application. Just as in Newton, curing the statutory defect would not change the outcome.
       While the ZBA committed other errors in the manner in which it took a vote, and the
manner (or absence) of a record on how it took a vote, the facts presented here do not overcome
the cautions against application of the deemed approval doctrine that the Newton Court
expressed. Applying the remedy of deemed approval would directly contravene the doctrine’s
purpose and transform a negative decision into a positive one. We therefore are compelled to
DENY Appellants’ motion for summary judgment, since the applicable law does not direct that
their request for a building height variance should be approved as a matter of law.

                                           Conclusion
       For all the reasons more fully discussed above, we GRANT Appellants’ motion for
summary judgment in Docket No. 233-10-08 Vtec, concluding that their stone wall does not
constitute a zoning violation. The 2008 stone wall setback NOV is therefore VOIDED and




                                                8
judgment is rendered in Appellants’ favor. A Judgment Order accompanies this Decision,
thereby marking the end of the current proceedings before this Court in that appeal.
       In Docket No. 79-4-08 Vtec, we DENY Appellants’ motion for summary judgment
regarding the request for a variance from the twenty-six foot height limitation. That appeal shall
proceed to trial on Thursday, November 19, 2009, as already scheduled.

       Done at Newfane, Vermont, this 5th day of November 2009.



                                             ___________________________________
                                              Thomas S. Durkin, Environmental Judge




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