                                 STATE OF VERMONT
                   SUPERIOR COURT - ENVIRONMENTAL DIVISION
                                           {
In re: Smith Boathouse Permit Application1 {          Docket No. 117-8-12 Vtec
                                           { (Appeal from Leicester ZBA (No. 21-12-ZA))
                                           {

                                           Judgment Order
          Jeffrey T. Smith and Linda M. Smith (“Applicants”) have appealed a decision by the
Town of Leicester Zoning Board of Adjustment (“ZBA”) denying their application for a zoning
permit to build a boathouse and rail system to store a boat on their property at 1134 Hooker
Road, which lies along the shoreline of Lake Dunmore.
          Mr. Smith first submitted an application for his proposed boathouse in 2009; that
application was approved by the Town of Leicester Zoning Administrator (“the
Administrator”). Once Mr. Smith began site work on his property, at least one concerned
neighbor contacted state authorities about work allegedly being done in Lake Dunmore or an
adjoining wetland. Mr. Smith voluntarily ceased his site work, began discussions with state
officials, and revised his project plans. As a consequence, Applicants sought a new building
permit.
          Applicants submitted their second application on June 5, 2012. When the Administrator
denied this second application, Mr. Smith filed a timely appeal with the ZBA. When the ZBA
denied Mr. Smith’s appealed application on August 14, 2012, Applicants filed a timely appeal
with this Court.
          Once Applicants filed their appeal with this Court, several of their neighbors appeared
and filed cross-appeals.2 All of these individuals, including Mr. and Mrs. Smith,3 appeared as
self-represented litigants. Mr. Smith initially sought to narrow the legal issues to be addressed


1 The caption originally assigned to this appeal was In re Smith CU (Boathouse denial). During trial, the
Court determined that the caption needed to be revised, since the Smith application did not seek
conditional use approval; no party at trial asserted that Mr. Smith’s proposed boathouse required
conditional use approval. We have therefore revised the caption to delete the reference to CU approval.
2 Neighbors William Pitkin, Linda Pitkin, Harry Chen, and Anne Lezak filed cross-appeals; neighbors
Andrew and Bethany Menkart, Charles H. and Grace S. Makovec, Susan Potter, Rosemary Spahn,
Stephan Beck, Kate Williams, and Lisa Ventriss appeared as self-represented Interested Persons. The
Town of Leicester, through its attorney, James F. Carroll, Esq., and the State of Vermont Agency of
Natural Resources (“ANR”), through its attorney, John Zaikowski, Esq., also entered appearances.
3 Mr. Smith is a Vermont licensed attorney and appeared in this proceeding on his and Mrs. Smith’s
behalf.

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by the Court by filing a motion for summary judgment. The Town of Leicester (“Town”)
opposed Mr. Smith’s motion, as did several of his neighbors. The Court then issued an Entry
Order, granting in part and denying in part Applicants’ summary judgment motion. See In re
Smith Boathouse Permit App., No. 2-1-12 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Mar. 26,
2013) (Durkin, J.). As a consequence of this Entry Order, only Question 2 of Applicants’
Statement of Questions (filed Sept. 6, 2012) remained for adjudication.             Question 2, as
paraphrased by the Court, asked whether Applicants’ revised plans for their boathouse
conformed to the applicable provisions of the Town of Leicester Zoning Bylaws (“Bylaws”). Id.
at 3. The Court noted that Bylaws § 620 provided that “[w]aterfront lots may have a one-story
boathouse chiefly for the purpose of boat storage and one end may extend into the water 16
feet, if permitted by state statute or regulation.” Id. We also noted that at trial Applicants
would need to show that their proposed structure conformed to the applicable dimensional
provisions of the Bylaws, including the dimensional provisions in the remaining portion of
Bylaws § 620. Id. at 4.
       The Court then directed the parties to complete their trial preparations so that the Court
could receive evidence at trial on these remaining legal issues, as well as the legal issues raised
by the Cross-Appellants.4
       The Court conducted a site visit and trial on September 6, 2013. The statements and
observations made during the site visit were not regarded as evidence, but rather were relied
upon to provide context for the evidence received at trial.          When all parties had a full
opportunity to present evidence and cross-examine the witnesses presented by other parties,
the Court recessed the merits hearing to begin its deliberations and complete legal research.
The Court then reconvened the hearing to announce its Findings of Fact and Conclusions of
Law. This Judgment Order is issued to provide a summary of the Findings and Conclusions
rendered by the Court at the conclusion of the merits hearing, and to fulfill the Court’s
obligations under V.R.C.P. 58 to issue a Judgment Order.
1.     Applicants’ property is located in the Lake Zoning District (“Lake District”) and
therefore must conform to Bylaws § 270.

4  All of the Questions posed by the Cross-Appellants challenge whether the proposed boathouse
conforms to various dimensional requirements and therefore overlap the legal issues raised by
Applicants’ Question 2, as paraphrased by the Court. See Cross-Appellants Linda and William Pitkin’s
Statement of Questions, filed Oct. 9, 2012 and Cross-Appellants Harry Chen and Anne Lezak’s Statement
of Questions, filed Oct. 11, 2012.

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2.      Applicants’ parcel, measuring approximately 70 feet wide and 110 feet deep, has
frontage on both Hooker Road and Lake Dunmore.                The parcel currently contains no
development. Applicants own another nearby property on which their home is located. That
property does not adjoin the subject property and does not have frontage on Lake Dunmore.
3.      Applicants first proposed to construct a boathouse that encroached into the waters of
Lake Dunmore. After they received approval for the 2009 municipal permit application, Mr.
Smith caused a portion of the subject property to be excavated and about 20 to 24 cubic yards of
stone and fill to be brought onto the subject property. The area Mr. Smith excavated and filled
is a classified and protected wetland.
4.      ANR officials determined that if Applicants continued with their plans to construct and
use a boathouse that encroached into Lake Dunmore, they would need to apply for and obtain a
state permit. See Town Exhibit 6. In addition, ANR officials advised Mr. Smith that he must
remove the unauthorized fill from the wetland on his property to correct this wetland violation,
whether on not he proceeded with his plans to construct a boathouse, and whether that
boathouse encroached into Lake Dunmore or not. Id.
5.      Applicants revised their plans so that their proposed boathouse would not extend into
Lake Dunmore (“the Lake”). Applicants propose to install a winch and two steel rails that
would extend from the boathouse and into the Lake, so that they could winch their boat from
the Lake and into the boathouse. Applicants proposed to remove the rails from the Lake each
fall and return them to the Lake each spring.
6.      Mr. Smith proposed to remove the stone and fill from the subject property after
construction of the boathouse. As of the date of trial, the stone and fill remained on the
property. None of the seeding or mulching directed by ANR officials, as noted in Town Exhibit
6, had been done.
7.      Bylaw § 270 establishes the requirements for development in the Lake District, including
that all listed uses may be permitted, “unless prohibited by . . . other provisions of these bylaws
or state or federal regulations.” Id. Town Exhibit 6 provided uncontroverted evidence that Mr.
Smith placed stone and fill in the wetland on his property without required state or municipal
permits. Therefore, a permit to building a boathouse on the property cannot be granted because
of the illegal filling of the wetland.




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8.     Bylaw § 620 provides authority for a boathouse to be constructed and used on
waterfront properties, but does not supersede the use and dimensional requirements for the
Lake District.
9.     Bylaws § 270 lists permitted and conditional uses allowed in the Lake District. That
provision does not specifically list boathouses as being either a permitted or conditional use, but
does list “accessory use or building” as a permitted use. Implicit in this provision is that an
accessory use or building is only allowed on a Lake District property if it accompanies a
principal use or building. Because § 620 does not supersede the use requirements, a boathouse
may only be allowed as an accessory use or building in the Lake District and therefore must
accompany a principal use or building.
10.    Applicants provided no evidence of the principal use or building on the subject
property.
       Based upon the Court’s stated Findings and Conclusions, specifically the Conclusions
that violations of state wetlands protection laws continue on the property and that the proposed
boathouse does not constitute a permitted, conditional, or accessory use or building allowed in
the Lake District, the Court announced its DENIAL of Applicants proposed development.
       This completes the current proceedings before this Court on this application.

       Done at Berlin, Vermont this 13th day of November, 2013.




                                                       Thomas S. Durkin, Environmental Judge




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