                                   STATE OF VERMONT

                                 ENVIRONMENTAL COURT

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In re: Appeal of                            }
        Gerald and Elaine Laferriere        }       Docket No. 223-12-98 Vtec
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                                            }

                                   DECISION and ORDER

        Appellants Gerald and Elaine Laferriere appealed from a decision of the Planning
and Zoning Board of the Town of Lyndon, granting conditional use approval to Robert and
Mary Howland.
        Appellants are represented by Charles D. Hickey, Esq.; Appellees Robert and Mary
Howland are represented by Steven A. Adler. The Town of Lyndon did not enter an
appearance. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, who also took a site visit with the parties. The parties were given the
opportunity to submit written requests for findings and memoranda of law.                 Upon
consideration of the evidence, the site visit, and the written memoranda and proposed
findings, the Court finds and concludes as follows.
        We specifically note that all descriptions of property transactions in this decision are
made only for the purposes of resolving the issues in this appeal within the jurisdiction of
24 V.S.A. Chapter 117. Any disputes as to the ownership or boundaries of the parcel of
land at issue in this appeal cannot be resolved by this Court in this case.
        Zoning Bylaws were adopted in the Town of Lyndon in 1972; the version in effect
through October 1996 was amended effective 1980, but will be referred to consistently with
the parties= usage as the 1972 Zoning Bylaws. The Bylaws were amended effective
November 1996.
        The land at issue in this case is contained within a loop of road formed at the
intersection of the former1 Hogge Hill Road (also shown as Hoag Hill Road on some maps)

   1
       Since renamed under the E911 program.


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and Town Road 61 where Hogge Hill Road curves sharply around to the north. The land is
located in the Residential Neighborhood zoning district under the 1996 Zoning Bylaws.
Neither party has established the zoning district in which the land was located under the
1972 Zoning Bylaws. It is served by municipal water.
       A slightly larger parcel of land, including but not limited to the land contained within
the parcel at issue in this case, is shown as Lot #3 on a 1950 survey, a reduced size
photocopy of which is in evidence as Exhibit 11. Lot #3's longest dimension is shown on
that survey as 140.5', while the bearing of its westerly line is shown as N 6E 30' W. The
westerly boundary of the parcel at issue in the present case is formed of three segments
having bearings of S 43E 07' W; S 7E 58' E; and S12E 18' W.
       In 1977, George W. Drown conveyed a parcel of land to the north and west of the
parcel at issue in this case to Steve and Bette Noyes. The parcel of land at issue in the
present case, lying within the loop of roadway and bounded at the west by the three
segments having bearings of S 43E 07' W; S 7E 58' E; and S12E 18' W, was formed by that
1977 transaction and was excluded from that conveyance. If Mr. Drown had owned it or
acquired it by adverse possession or acquiescence prior to that date, he retained it in that
transaction.
       Section 602.2 of the 1972 Zoning Bylaws provided that Aany lot in individual and
separate and non-affiliated ownership from surrounding properties2 in existence on the
effective date of these regulations may be developed for the purposes permitted in the
district in which it is located, even though not conforming to minimum lot size requirements,
if such lot is not less that one-eighth acre in area with a minimum width or depth dimension
of forty feet.@ Section 602.5 provided that A[e]stablishment of a lot which is a portion of a
lot of record shall not create non-conformance of an existing structure or lot.@ Because the
parcel in its present configuration was created by a 1977 transaction, after the 1972 Zoning
Bylaws were in effect, based on the evidence presented to this Court, it does not qualify for

   2
      We note that Appellee-Applicant=s argument based on Wilcox v. Manchester
Zoning Bd. of Adjustment, 159 Vt. 193, 198 (1992), is inapplicable due to the remainder
of the adjacent land within the loop of the roadway, rather than to the land under the
same ownership on the other side of the roadway.


                                              2
treatment as an Aexisting small lot,@ and in fact should not have been created in 1977.
'602.5. However, because the resolution of the land transactions is beyond the jurisdiction
of this Court, and could change its qualification as an Aexisting small lot,@ this decision will
address the outcome of the zoning appeal under both alternatives: as if the parcel does
and does not qualify as an existing small lot.
       In 1978, the Village of Lyndonville acquired by eminent domain certain roadside land
necessary for improving and widening ATute Hill Road.@ The land acquired by the Town is
referred to in Exhibit D as being shown on certain plans, but the plans were not offered in
evidence. The land then acquired by the Village included at least some portion, if not the
entirety, of the parcel at issue in the present case, but the Court cannot identify from the
evidence which portion of the land was acquired by the Village at that time.
       In 1986, Appellee-Applicants acquired a large parcel of land from George W. and
Marjorie H. Drown, by warranty deed recorded at Book 90, page 444 of the Lyndon land
records. The description of the property corresponds with the parcel marked as â on
Exhibit 11, above or southerly of the dashed line. It is located across Hogge Hill Road from
the parcel at issue in the present case, which is contained within Lot #3 on Exhibit 11.
Over the years Mr. Drown had parked his construction equipment on Lot #3. From
testimony it appears that Appellee-Applicants believed that they had acquired the subject
parcel as well in that transaction. Before any site work was done, the parcel was steep
and only a small portion adjacent to the upper roadway was useable for this purpose.
       At some time prior to 1993, a municipal water line was installed that passes across
the northerly portion of the parcel at issue in this case.
       In July of 1993, intending to develop the parcel of land at issue in the present case,
Appellee-Applicants entered into an agreement with the Village allowing them to purchase
and add fill to the property (described as Aabout .1 acre@), provided that whenever the water
line needs repair or replacement, the water line will be disconnected and reinstalled around
the lot, with the Village to pay for labor and equipment and Appellee-Applicants to pay for
materials. In accordance with this agreement, in November of 1993 the Village quitclaimed
its right and title to a parcel described as consisting of A0.3 acres of land more or less@ but
described by metes and bounds only as the 0.17-acre portion of the 0.3-acre parcel shown

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in Exhibit 12. The quitclaim deed is recorded at Volume 112, Page 563 of the Lyndon land
records.
         Therefore, the parties dispute and this Court is without jurisdiction to resolve
whether the parcel owned by Appellee-Applicants is the entire 0.3-acre parcel shown on
Exhibit 12, or only the 0.17-acre portion3 of it described in the 1993 quitclaim deed. The
remainder of this Court=s analysis will examine the outcome under both alternatives: as if
Appellee-Applicants own the entire 0.3-acre parcel or only the 0.17-acre portion.
         The Court takes judicial notice that an acre contains 43,560 square feet, unless
otherwise defined by the Zoning Bylaws. Thus, the 0.17-acre portion contains 7,405
square feet, while the entire 0.3-acre parcel contains 13,068 square feet. Both are greater
than one-eighth of an acre (that is, 5445 square feet), and both have a minimum width or
depth greater than forty feet. If the parcel had been created with its present boundaries
prior to 1972, and had then been in Aindividual and separate and non-affiliated ownership@
from the adjacent property, then under '602.2 of the 1972 Zoning Bylaws it could Abe
developed for the purposes permitted in the district in which it is located, even though not
conforming to minimum lot size requirements.@ (Emphasis added.)




   3
       We note that all of the construction has occurred on the 0.17-acre portion.



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       However, even if the lot had qualified for the Aexisting small lot@ exemption, that
provision only would have exempted the lot from the minimum lot size requirements, not
from all of the other requirements of the Zoning Bylaws. If an undeveloped Aexisting small
lot@ also fails to meet the setback or other criteria of the Zoning Bylaws, then under the
1972 Zoning Bylaws it must get a variance from those criteria.4 This is the procedure that
seems to have been contemplated by '801.1, second paragraph. Under '4.4.3 and '4.6 of
the 1996 Zoning Bylaws, it could apply for conditional use approval for deviations from the
maximum lot coverage or the minimum front, side or rear yard requirements. On the other
hand, if an undeveloped undersized lot does not qualify for the Aexisting small lot@
exemption, then under both the 1972 and the 1996 Zoning Bylaws, it must obtain a
variance from the minimum lot size requirement as well.
       The reduced size zoning map found the inside back cover of the 1972 Zoning
Bylaws does not clearly show whether this parcel was located in the Commercial
Residential or the Village Residential zoning district. However, a Class 2 lot (that is, one
served by either off-site sewer or off-site water, but not both) was not allowed in the Village
Residential district. '303.1. If the parcel had been located in the Village Residential
district, a variance would have been required for a Class 2 lot as well.
       We will therefore assume for the purposes of further discussion that the parcel was
located in the Commercial Residential district under the 1972 Zoning Bylaws. The
minimum requirements for a Class 2 lot with a single-family dwelling were 20,000 square
feet of minimum lot size, 100 feet minimum lot width, 30 feet front setback, 15 feet rear and
side setback, and a minimum buffer of 6 feet. Under the 1996 Zoning Bylaws, in the
Residential Neighborhood zoning district those requirements have been increased to
25,000 square feet of minimum lot size, 125 feet of frontage, 40 feet front setback, 25 feet
rear and side setback, minimum buffer of 10 feet, and maximum lot coverage of 20%.

   4
    As done in the case cited by Appellee-Applicant: Kashner v. Greensboro Zoning
Board of Adjustment, Docket No. S279-11-91 OsC (Orleans Superior Ct., Nov. 30,
1998).




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       If Appellee-Applicants own the 0.17-acre parcel only, then the parcel fails to meet
the minimum lot width, front setback and rear setback requirements under the 1972 Zoning
Bylaws, and fails to meet the front setback and rear setback requirements under the 1996
Zoning Bylaws. If Appellee-Applicants own the 0.3-acre parcel, then the parcel fails to
meet front setback and rear setback requirements under the 1972 Zoning Bylaws, and fails
to meet the front setback and rear setback requirements under the 1996 Zoning Bylaws.
       In order to determine whether the 1972 or the 1996 Zoning Bylaws apply to this
application, we must next resolve whether the 1996 zoning permit expired, and whether
some or all of the work on the parcel was done under the authority of a valid permit.
       On September 15, 1994, Appellee-Applicants applied for a zoning permit to place a
16' x 70' (1120 square feet) mobile home on the parcel. However, their application
described the parcel as having a lot size of A3.755 ac[res].@ The deed references shown on
that application were Volume 90, Page 444 and Volume 112, Page 563. The application
was approved on September 19, 1994, and was not appealed. Section 905.2 of the 1972
Zoning bylaws provided that if a zoning permit is approved Aall activities authorized by its
issuance shall be completed within two years of its date of issue, or the Zoning Permit shall
become null and void and re-application to complete any activities shall be required.@ We
note that this language only requires reapplication to complete any activities not completed
within the two years but authorized by the permit. It does not by its terms invalidate any
work done under the permit prior to the expiration date of the permit. Indeed, retroactive
invalidation of work done under an unappealed permit would be contrary to the principles of
vested rights established by the Vermont Supreme Court. See, Smith v. Winhall Planning
Commission, 140 Vt. 178, 436 A.2d 760 (1981); In re McCormick Management Co., 149
Vt. 585, 547 A.2d 1319 (1988), and discussion of the doctrine in In re Taft Corners
Associates, Inc., Docket Nos. 127-7-98 Vtec and 234-12-98 Vtec (Vt. Envtl. Ct., August 19,

   5
     This application misstated the lot size by a factor of ten, potentially affecting its
compliance with both the minimum lot size and the lot coverage requirements of the
Zoning Bylaws, and potentially providing a basis for the revocation of the permit.




                                              6
1999).
         Recognizing that they were not able to complete all activities authorized by the 1994
permit by September 19, 1996, on August 9, 1996 Appellee-Applicants filed a new
application for a zoning permit to place a 16' x 70' mobile home on the parcel, which their
application continued to describe as a lot size of 3.75 acres. The application was approved
the same day, August 9, 1996, and was not appealed. Section 905.2 of the 1972 Zoning
Bylaws provided that if a zoning permit is approved Aall activities authorized by its issuance
shall be completed within two years of its date of issue, or the Zoning Permit shall become
null and void and re-application to complete any activities shall be required.@ Nothing in the
1996 application or approval made reference to the former application or approval, nor did
it suggest that the former permit=s September expiration date would be Aextended@ for
another two years. Rather, the new expiration date of the 1996 Permit was August 9,
1998.
         Appellee-Applicants do not appear ever to have applied for or received a variance
from the setback or lot width requirements (nor for the minimum lot size), prior to applying
for and obtaining either the 1994 or the 1996 Permit. They should have done so before a
zoning permit should have been issued.
         Amended Zoning Bylaws were adopted in November 1996. Section 4.7 adopts by
reference certain state regulations for on-site septic systems. Section 4.4.3 and 4.6 allow
requests to deviate from lot coverage or setback requirements to be treated as conditional
use applications rather than as variance applications. Under that section, an applicant
must presumably satisfy the conditional use standards in '4.2.2, must affirmatively
establish that the performance standards of '4.4.5 will be met, and must affirmatively
establish that the degree to which the proposal fails to meet the lot coverage or setback
requirements is no greater than the degree to which properties in the immediate vicinity
also fail to meet those requirements. Under some circumstances, such as those in the
present case, the '4.4.3 standards may be more difficult to meet than the requirements for
a variance, rather than less difficult.
         Appellee-Applicants must receive either a variance under the 1972 Zoning Bylaws
or a conditional use permit under the 1996 Zoning Bylaws for the reduced setbacks for the

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mobile home as installed. Due to their vested rights in the permits issued under the former
regulations, it is at Appellee-Applicants= option whether to apply under the old bylaws for a
variance or under the new bylaws for a 4.4.3 permit for the reduced setbacks. However,
Appellee-Applicants also must receive a variance from the minimum lot size requirements
under either the former or the present zoning bylaws. This Court cannot address the
variance criteria in the first instance as they were not presented to the Zoning Board of
Adjustment for its decision. Appellee-Applicants may wish to first establish the lot size and
ownership history of the parcel in Superior Court prior to or simultaneously with such
application, as it governs both the size of the parcel (that is, the degree of setback
noncompliance) and whether a variance must be sought for the minimum lot size.
       Between August 9, 1996 and August 9, 1998, Appellee-Applicants had survey work
done and site work done, including placing a substantial amount of fill on the site, had
telephone, electric and municipal water service installed, installed a septic tank and leach
field to the northeast of the trailer location, and placed the mobile home on the site. The
septic tank and leach field were installed in 1997. All the site work and installation of
utilities was completed by May of 1998. A mobile home was placed on the lot on August 6,
1998. The 1996 Permit expired on August 9, 1998. As of August 9, 1998 the only
remaining work authorized by the 1996 Permit but not completed was to level the mobile
home and connect it to the utilities and to obtain a certificate of occupancy. Thus, under
'905.2 of the 1972 Zoning Bylaws, Appellee-Applicants only had to apply for a zoning
permit to perform that remaining work. They were entitled under the 1996 permit to have
the 1972 Zoning Bylaws, as amended as of August 9, 1996, apply to the septic system and
leach field, rather than the standards found in the later November 1996 Zoning Bylaws.
       On October 13, 1998, Appellee-Applicants applied for a zoning permit for the project
as completed and installed. The 1998 application proposed to place the 14' x 66' (924
square foot) mobile home on the parcel, which the application described as .3"acres of
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filled land and .3"acres of unfilled land, for a total lot size of .6"acres. It is this application

   6
     This application misstated the lot size by a factor of two, potentially affecting the
determination of its compliance with both the minimum lot size and the lot coverage
requirements of the Zoning Bylaws.

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which is on appeal in the present case. It was treated by the Planning and Zoning Board
as an application for a conditional use permit for the reduced setbacks under '4.4.3 of the
1996 Zoning Bylaws.
       All that should have been reviewed in the 1998 application was whether Appellee-
Applicants could hook up the mobile home to the installed utilities, and whether the
property qualified for a certificate of occupancy. Appellee-Applicants should have been
allowed to elect whether to proceed under the former bylaws for a variance or under the
current bylaws for a conditional use permit to deviate from the setback requirements, as
the mobile home had been placed on the lot prior to expiration of the 1996 Permit. It was
open to the Planning and Zoning Board to determine whether Appellee-Applicants had
obtained any necessary variances in the past, or to rule on any variance application under
the former bylaws, and to determine whether the lot qualified as an Aexisting small lot.@ It
was open to the Planning and Zoning Board to determine whether the application for
reduced setbacks met the standards '4.4.3 of the 1996 Zoning Bylaws. It was open to the
Planning and Zoning Board to determine whether the septic system and other activities on
the parcel would comply with the performance standards of '4.4.5 of the 1996 Zoning
bylaws. It was not open to the Planning and Zoning Board, however, to require the
already-installed septic system to comply with the 1996 Zoning Bylaws, unless or until the
                                     7
1996 Permit were properly revoked for misrepresentation of the lot area.
       Perhaps because of the issues on which the Planning and Zoning Board focused,
even though the merits hearing before this Court was de novo, Appellee-Applicants did not
present evidence affirmatively establishing that the reduced setbacks will not adversely
affect any of the conditional use standards in '4.2.2 , did not present evidence affirmatively


   7
     That is, the expiration of the 1996 Permit only rendered it void after August 9,
1998; and action taken under its authority prior to that time, including the installation of
the septic system, would not thereby be invalidated. If the 1996 Permit were revoked
for misrepresentation, on the other hand, it would become void from its inception.




                                              9
establishing that the performance standards of '4.4.5 would be satisfied, and did not
present evidence affirmatively establishing that the degree to which the proposal fails to
meet the setback requirements is no greater than the degree to which properties in the
immediate vicinity also fail to meet those requirements. From the site visit, it appears to
the Court that it would be difficult to establish this latter standard. However, we will not
reach the merits of this application because Appellee-Applicants should have been given
the opportunity to elect between the 1972 and the 1996 Zoning Bylaws on this application.


       Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellee-
Applicant=s application for a zoning permit to connect the mobile home to its utilities and to
obtain a certificate of occupancy is denied as premature, without prejudice to reapplication
after the required variance for the minimum lot size is obtained, and after Appellee-
Applicants elect whether to proceed under the former bylaws for a variance for the
setbacks or under the current bylaws for a conditional use permit to deviate from the
setback requirements.
       This decision concludes the present appeal in this Court; the matter is remanded to
the Town of Lyndon Zoning Administrator and Planning and Zoning Board for Appellee-
Applicants to file any appropriate applications.


                     Dated at Barre, Vermont, this 6th day of July, 2000.




                                    ______________________________________
                                    Merideth Wright
                                    Environmental Judge




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