









2014 VT 125










In re Carrigan Conditional Use
and Certificate of Compliance, Certificate of Occupancy, Certificate of
Compliance (2013-346, 2013-347 & 2013-348)
 
2014 VT 125
 
[Filed 21-Nov-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 



2014 VT 125



 



Nos. 2013-346, 2013-347 & 2013-348



 



In re Carrigan Conditional Use
  and 
Certificate of Compliance


Supreme Court




 


On Appeal from




In re Carrigan Certificate of Occupancy


Superior Court, 




 


Environmental Division




In re Carrigan Certificate of Compliance


 




 


June Term, 2014




 


 




 


 




Thomas
  S. Durkin, J.




 



David G. Carpenter of The Carpenter Law Firm, PLLC,
Middlebury, for Appellants.
 
James W. Runcie of Ouimette & Runcie, Vergennes, for
Appellees John and Linda Carrigan.
 
Adam L. Powers of Powers & Powers P.C., Middlebury, for
Appellee Town of Addison.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund
and Crawford, JJ.,[1]
and Morse, J. (Ret.),
                    
Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Neighbors Barbara Supeno and Barbara J.
Ernst appeal the decision of the Superior Court, Environmental Division
upholding the Town of Addison Development Review Board’s (DRB) grant of
certificates of occupancy for two detached decks and a conditional use permit
for an enclosed deck to applicants Linda J. and John P. Carrigan for
improvements to applicants’ seasonal camp on Lake Champlain.  We affirm on
the grant of the certificates of occupancy and reverse on the grant of the
conditional use permit.
¶ 2.            
This dispute centers around a series of decks that applicants
constructed on their property and the efforts of the Town in bringing the decks
into compliance with the current zoning bylaws.  Applicants’ seasonal camp
is located on Lake Champlain in the Town of Addison’s Shoreland Residential
(SR) District.  The Town of Addison Zoning Regulations specify a minimum
lot size of 2.5 acres and a minimum shoreline setback of 100 feet for buildings
in the SR District.  Town of Addison Zoning Regulations § 2.4 tbl.2.3
(2007) [hereinafter bylaws].  Applicants’ lot measures 0.41 acres, and a
large portion of the camp and its appurtenant structures is located within the
100-foot setback.  The parties do not dispute that applicants’ camp is a
noncomplying structure under the bylaws.
¶ 3.            
Applicants purchased their property in 1984 and shortly thereafter built
an attached, uncovered deck on the west side of the camp, facing Lake
Champlain, adding ten feet in length to the footprint of the camp. 
Applicants then replaced an existing concrete platform, retaining wall, and set
of stairs located on a slope down to the lakeshore, and added some decking
behind the wall.  As a result, applicants arguably had two decks within
the setback area.
¶ 4.            
In 2003, applicants applied for and received a permit to build a roof
over the uncovered deck that was attached to the west side of the camp. 
The 2003 permit memorialized the footprint of the camp as 800 square feet, a
measurement used in subsequent permit applications.  On the recommendation
of their builder, applicants also enclosed the deck by adding walls, but they
did not apply for a permit for the enclosure, as required by the regulations in
effect at that time.  In 2004, neighbors purchased property adjacent to
applicants’ camp.  In 2012, neighbors complained about the enclosed deck,
and the Town’s zoning administrator (ZA) inspected the enclosure and informed
applicants that a conditional use permit was required under the updated zoning
regulations.  The DRB granted the conditional use permit without conditions. 
The environmental court’s affirmance of this conditional use permit is one of
the three issues on appeal.
¶ 5.            
In 2010, applicants applied for and received a permit to construct a
detached, “standalone deck” on the west side of the camp, abutting the
now-enclosed attached deck.  The permit application did not disclose the
presence of the decking that applicants had placed behind the retaining wall
when they reconstructed the concrete platform and stairs in the 1980s.  In
2011, neighbors notified the ZA that the standalone deck violated
§ 2.3(F)(7)(a) of the bylaws, which limits the number of detached decks an
applicant can construct within the SR District.  They argued that the
decking behind the retaining wall constituted a “deck” and that therefore the
standalone deck on the west side of the camp was not allowed under the
bylaws.  Upon instruction from the ZA, applicants removed the decking from
behind the retaining wall to comply with the bylaws.  The ZA later
discovered that, when constructed, the standalone deck was in fact attached and
advised applicants to cut through the connecting boards to create a
freestanding structure.  The DRB then granted a certificate of occupancy
for this deck.  The environmental court’s affirmance of this certificate
of occupancy is another one of the issues on appeal.
¶ 6.            
The controversy did not end there.  Neighbors alerted the ZA that
another attached deck, which applicants had constructed in 2004 on the south
side of their camp, violated the zoning bylaws because it increased the camp’s
degree of noncompliance.  After the DRB denied applicants’ request for a
variance, the ZA instructed applicants to detach the south deck from the camp
and attach it to the west deck to create one large, L-shaped deck with an area
of about 350 square feet, all detached from the camp.  Applicants
complied, and the DRB then granted a permit and certificate of occupancy for
the combined deck.  The environmental court’s affirmance of this
certificate of occupancy is the final issue on appeal.
¶ 7.            
Neighbors appealed to the environmental court the DRB’s grant of
certificates of occupancy for the west and south decks and its grant of the
conditional use permit for the enclosed deck.  The court consolidated the
three separate appeals and held a de novo trial.  It upheld the DRB’s
determinations on all three applications, concluding that: (1) once applicants
had removed the decking from behind the lakeside retaining wall, the camp had
only one detached deck as allowed by the zoning bylaws; (2) the L-shaped
structure formed by joining the south and west decks constituted a single,
detached deck; and (3) once applicants built the roof over their attached deck,
that covered deck became part of their living space.
¶ 8.            
Neighbors filed this appeal, arguing that the environmental court erred
in affirming the DRB’s grant of certificates of occupancy for the detached
decks and a conditional use permit for the enclosed deck.  Neighbors also
argue that the actions of the ZA and DRB  directly contravene state and
local policies protecting sensitive shoreland areas and lakes.  Applicants
counter these arguments and further claim that neighbors lacked party status to
appeal the DRB’s decisions to the environmental court.  The Town of
Addison filed a brief on the narrow question of whether the Town can administer
its zoning bylaws by helping landowners correct violations and comply with the
bylaws, rather than assessing fines for noncompliance.
¶ 9.            
We review the environmental court’s legal conclusions de novo,  In
re Grp. Five Inv. CU Permit, 2014 VT 14, ¶ 4, ___ Vt. ___, 93 A.3d
111, and will uphold those conclusions if they are “reasonably supported by the
findings.”  In re Champlain Oil Co. Conditional Use Application,
2014 VT 19, ¶ 2, ___ Vt. ___, 93 A.3d 139.  We defer to the court’s
findings of fact and will uphold them “unless, taking them in the light most
favorable to the prevailing party, they are clearly erroneous.”  Id. 
We defer to the court’s construction of a zoning ordinance and will uphold it
unless it is “clearly erroneous, arbitrary, or capricious.”  In re
Beliveau NOV, 2013 VT 41, ¶ 8, 194 Vt. 1, 72 A.3d 918.
¶ 10.        
We also defer to a municipality’s interpretation of its own zoning
ordinance and will uphold it if it is reasonable and has been applied
consistently.  In re Champlain Coll. Maple St. Dormitory, 2009 VT
55, ¶ 10, 186 Vt. 313, 980 A.2d 273.  Zoning ordinances “are in
derogation of common law property rights and must be construed narrowly in
favor of the landowner.”  Champlain Oil Co., 2014 VT 19, ¶ 2.
¶ 11.        
At the outset, we consider applicants’ claim that neighbors lacked party
status to appeal to the environmental court.  The court briefly addressed
this issue and summarily dismissed it because applicants never filed a motion
challenging neighbors’ party status.  See V.R.E.C.P. 5(d)(2) (stating that
appellant claiming party status under 10 V.S.A. § 8504(b)(1), which
applies to zoning appeals, is “automatically accorded that status” when notice
of appeal is filed, unless court dismisses party based on motion). 
Neighbors claim party status under 10 V.S.A. § 8504(b)(1), which allows
zoning appeals by an “interested person,” as defined by 24 V.S.A. § 4465,
the statutory provision governing appeals from a municipal officer to a local
zoning or development review  board.  
¶ 12.        
Applicants are correct that the question of standing generally may be raised
at any time.  Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt.
235, 949 A.2d 420.  In this case, however, we have a specific procedural
rule “automatically” according interested party status to an appellant who
claims status under 10 V.S.A. § 8504(b)(1), “unless the court otherwise
determines on motion to dismiss a party.”  V.R.E.C.P. 5(d)(2).  As
the trial court found, applicants failed to file a motion to dismiss and
therefore failed to preserve their objection to the appeal.  See City
of S. Burlington v. Dep’t of Corrections, 171 Vt. 587, 590-91, 762 A.2d
1229, 1232 (2000) (mem.); In re Denio, 158 Vt. 230, 235-36, 608 A.2d
1166, 1168 (1992).
¶ 13.        
Turning to the merits, we first address whether the DRB erred in
granting a certificate of occupancy for the detached, standalone deck
applicants constructed along the west side of their camp.  Neighbors argue
that the DRB should not have approved the detached deck because the regulations
allow only one structure within the shoreland setback and applicants already
had a structure within the setback area: the concrete platform and
stairs.  Section 2.3(F)(7)(a) allows within the SR District’s shoreland
setback area “[o]ne detached deck, gazebo or similar structure per lot, which
does not exceed 500 square feet.”  The DRB classified the landing and
stairs as a “retaining wall” or “bulkhead” and concluded that it did not fall
within the category of structures regulated under § 2.3(F)(7)(a).  
¶ 14.        
The interpretation of this provision turns on defining “deck, gazebo or
similar structure.”  The DRB found that once applicants removed the
decking and railing from behind the retaining wall, the structure no longer
constituted a deck or similar structure.  As commonly understood, decks
and gazebos are structures with platforms (decking) and railings.  It
follows that “similar structure” as used in the provision applies to structures
that also have platforms and railings.  See Vt. Baptist Convention v.
Burlington Zoning Bd., 159 Vt. 28, 30, 613 A.2d 710, 711 (1992) (“[T]he
latter general terms will be construed to include only those things similar in
character to those specifically defined.” (quotation omitted)).
¶ 15.        
Further support that the concrete landing and stairs alone are not
categorized as a deck or similar structure under the bylaws is found in the
provision at the end of § 2.3 that allows “[o]ther structures which
provide visual or physical access to the lake (such as walkways, larger docks
and boat ramps) to be constructed in the shoreland setback area subject to
conditional use review.”  If the drafters had intended to include under
§ 2.3(F)(7)(a) all detached structures—and not just those similar to decks
and gazebos—the second provision regulating these “other structures” would have
been superfluous.  See Beliveau, 2013 VT 41, ¶ 13 (“Generally,
we do not construe a statute in a way that renders a significant part of it
pure surplusage.” (quotation omitted)).  We therefore conclude that the
DRB’s interpretation of the bylaw is reasonable, and the environmental court
did not err in affirming the DRB’s grant of a certificate of occupancy for the
west, detached deck, subject to the argument considered below that it was not
truly detached.
¶ 16.        
Next, we address the issue of whether the DRB erred in granting a
certificate of occupancy for the detached, L-shaped deck.  The bylaws do
not define “detached,” so we are left with an ordinary understanding of the
term.  Something is detached if it is “not attached” or “separated.” 
The Random House Dictionary of the English Language 541 (2d ed. 1987).  A
detached building has “no wall in common with another building.”  Id. 
When buildings share no common wall, they are freestanding and unsupported by
the adjacent structure.  The environmental court supported its finding
that the L-shaped deck was detached with the ZA’s testimony that the deck had
“no physical connection that relied upon the principal structure for support
and stability of the detached structure.”  As both the south and west
portions of the L-shaped deck are freestanding and unsupported by the camp, we
find the deck sufficiently detached.  
¶ 17.        
We recognize the difficulty in justifying the DRB’s
interpretation.  A detached deck alongside the camp has the same effect on
the setback area as an attached deck but is less structurally sound.  It
seems irrational to permit a nominally detached deck but prohibit an attached
deck that otherwise appears identical to the normal observer.  The ZA
indicated in his testimony, however, that this interpretation allowing nominal
detachment has been applied consistently.  Furthermore, the Town’s policy
of allowing detached decks creates a significant line-drawing challenge unless all
detached decks are allowed, regardless of how nominal the detachment.  The
bylaw might have required a minimum distance between the detached deck and the
structure, or it might have prohibited placing a detached deck alongside a
dwelling; but the bylaw contains no such limitations, and we cannot read them
in.  Smith v. Desautels, 2008 VT 17, ¶ 18, 183 Vt. 255, 953
A.2d 620 (“[W]e do not read extra conditions into a statute unless they are
necessary to make the statute effective.”).  We therefore conclude that
the DRB’s interpretation of the bylaw was reasonable, and the court did not err
in affirming the DRB’s grant of a certificate of occupancy for applicants’
combined L-shaped deck.
¶ 18.        
Finally, we address the issue of whether the DRB erred in granting a
conditional use permit for the enclosed deck.  Section 3.7(B)(3) of the
bylaws allows a noncomplying structure to be “enlarged, expanded or moved,”
provided that such modification “does not increase the degree of
noncompliance.”  Section 7.2 of the bylaws defines “degree of
noncompliance” as: 
  The extent to which the footprint,
height, or total area (volume) of a structure does not comply with the
requirements of these regulations.  For example, an addition, the
installation of a dormer, or an increase in building height within the setback
area would increase the degree of noncompliance.
Neighbors argue
that applicants must seek a waiver or variance for the enclosure because it
increased the camp’s degree of noncompliance under the definition.[2]
¶ 19.        
The DRB’s and the parties’ interpretation of this regulation turns on
the word “volume.”  Neighbors argue that volume, as used here, refers to
the interior volume of the building.  As such, a building’s
degree of noncompliance would increase any time the interior volume—i.e., the
amount of living space enclosed within the floor, walls, and roof of the
building—increased.  Under this reading, even though applicants’ roofed
deck already increased the footprint (length x width) and height of the building,
once it was enclosed the total interior volume increased, thereby increasing
the camp’s degree of noncompliance.  
¶ 20.        
Applicants, on the other hand, argue that volume is limited to exterior
volume—i.e., the exterior space the building occupies.  Under this
reading, the footprint and height of the building already increased the camp’s
degree of noncompliance; the walls did not add to the existing footprint or
building height and therefore did not increase the noncompliance any
further.  The DRB adopted this second reading of the term volume when it
granted a conditional use permit for the enclosure, concluding that “the deck
and roof as constructed had height, length and width, and therefore had
volume.  The addition of enclosure walls and windows did not increase any
of those dimensions.”  
¶ 21.        
As noted above, we will defer to the DRB’s interpretation of the bylaws,
so long as it is reasonable and has been applied consistently, and to the
environmental court’s interpretation, unless it is clearly erroneous,
arbitrary, or capricious.  We interpret zoning ordinances according to the
principles of statutory construction.  Champlain Oil Co., 2014 VT
19, ¶ 7.  Therefore, to determine the reasonableness of the DRB’s and
the court’s interpretation, we start with the plain language of the
ordinance.  See In re Soon Kwon, 2011 VT 26, ¶ 9, 189 Vt. 598,
19 A.3d 139 (mem.) (“In construing . . . [an] ordinance, we
look first to the plain, ordinary meaning of the language; and we defer to the
construction of [an ordinance] by the agency responsible for implementing it.”
(quotation omitted)).
¶ 22.        
 On its face, the provision regulating noncomplying structures does
not indicate whether volume refers to interior or exterior space.  Because
the bylaws do not define the term specifically, we look to the ordinary
understanding of the term.  State v. Amsden, 2013 VT 51, ¶ 19,
194 Vt. 128, 75 A.3d 612.  Volume is defined as “the amount of
space . . . that an object or substance occupies.” 
Random House, supra, at 2131.  While we believe that this
definition supports neighbors’ position, we do not find it conclusive.  On
the one hand, we could say that because the unenclosed space between the floor
and roof was exposed to the outside air the structure did not occupy that
space.  On the other hand, we hesitate to say that this space is not part
of the structure, when it may have been used by applicants as actively before
the walls were erected as it is now, which is common particularly for seasonal
camps.
¶ 23.        
Neighbors’ strongest argument may be that the term “volume” is
superfluous under the DRB’s and environmental court’s construction.  Any
increase in the exterior volume of a building naturally results from an
increase in either the footprint or height of the building.  As such, even
without the presence of the term “volume” in the language of the bylaw, the
roof extension would increase the degree of noncompliance by adding height[3] over the deck.  On this point, however,
we note that the bylaw provides a dormer as an example of a structural element
that increases a building’s degree of noncompliance.  A dormer adds
nothing to the footprint or height of a building and therefore increases only
the interior volume.
¶ 24.        
We also look beyond the language of the bylaw to determine its
meaning.  Several courts in other jurisdictions have faced similar
issues.  These courts generally have concluded that absent language
expressly prohibiting any enlargement of a nonconforming structure,
additions and enclosures are permissible if they do not increase the footprint
or height of the building.  See Raymond v. Zoning Bd. of Appeals,
820 A.2d 275, 288-89 (Conn. App. Ct. 2003) (permanent deck enclosure); Doyen
v. Zoning Bd. of Appeals, 789 A.2d 478, 485-86 (Conn. App. Ct. 2002)
(addition over existing porch); Town of Seabrook v. D’Agata, 362 A.2d
182, 183 (N.H. 1976) (carport enclosure); Clark v. Richardson, 211
S.E.2d 530, 531 (N.C. Ct. App. 1975) (porch enclosure); Nettleton v. Zoning
Bd. of Adjustment, 828 A.2d 1033, 1039 (Pa. 2003) (two-story addition over
existing first-story addition); Donaghy v. Bd. of Adjustment, 2002 WY
150, ¶¶ 12-13, 55 P.3d 707, 713 (patio enclosure).
¶ 25.        
The Connecticut Court of Appeals discussed this “window of tolerance”
for expansions in Doyen, where it analyzed a town ordinance that allowed
nonconforming structures to be enlarged in compliance with the zoning
regulations.  In upholding an application for an addition atop a roofed
deck, the court noted that “[t]he preexisting footprint, which includes the
deck, creates its own legal nonconforming setback.”  Doyen, 789
A.2d at 485-86.  Because the second-story addition did not encroach any
further into the setback area, the court held that it was a permissible
enlargement of the structure.  Id. at 486.
¶ 26.        
Although these decisions tend to support applicants’ position, they are
of limited assistance because none of the ordinances at issue prohibited an
increase in volume within the setback areas.  For a similar reason,
we find limited assistance in an earlier environmental court decision with
similar facts that interpreted the term “volume” in the Town of Ludlow’s zoning
ordinance to mean the exterior volume of the building and not the interior
space.[4] 
In re Curry, No. 222-10-07 Vtec, slip op. at 6 (Vt. Envtl. Ct. Feb. 5,
2009), https://www.vermontjudiciary.org/GTC/Environmental/Opinions.aspx. 
The court discussed Ludlow’s ordinance at some length when considering whether
an enclosed porch would constitute an expansion of the nonconforming structure,
but ultimately relied upon another provision in the ordinance that expressly stated
that a roofed porch is considered part of the structure for setback
purposes.  Id.  As such, the court concluded that “[t]his work
does not constitute an expansion or enlargement to a nonconforming structure
under [the ordinance] if it is entirely located within the volume of space already
defined as being part of the existing nonconforming structure.”  Id. 
The bylaws at issue here have no similar provision.
¶ 27.        
The one decision on point, Fielder v. Town of Raymond, No.
AP-01-16, 2001 WL 1711247 (Me. Super. Ct. Oct. 5, 2001), addressed the term
“volume” and reached a conclusion that supports neighbors’ arguments
here.  There, the Maine Superior Court considered an application to
enclose a roofed deck in the town’s shoreland setback area.  The applicable
ordinance prohibited structures in the setback area from expanding “toward the
water body” or increasing the “floor area or volume by 30% or more.”  Id.
at *2.  The court held that the enclosure would increase the volume of the
building although not in excess of the 30% limit.  Id. at *4. 

¶ 28.        
The overarching consideration—and indeed the most important
consideration—in our interpretation of the term “volume” is the amount of
deference we can give to the DRB and the environmental court.  For the
reasons we state below, we conclude that neither decision is entitled to
deference.  
¶ 29.        
We will defer to the DRB’s interpretation if it is reasonable and has
been applied consistently.  The DRB concluded that because the walls did
not add to the footprint or height of the building it already had volume and
did not intrude any further into the setback area.  The evidence in
support of this interpretation was supplied by the ZA’s testimony, which
indicates that this interpretation is based not on sound reasoning but merely
on the conclusion that the term “volume” is too ambiguous to be enforced. 
The ZA acknowledged that, according to the bylaw, an increase in volume would
increase the degree of noncompliance.  He admitted, however, that he “felt
it was careless wording” and that the planning commission was “unclear about
it” and “agreed that [the term ‘volume’] should not have been in there.” 
From this, we cannot conclude that the DRB’s interpretation is reasonable.
¶ 30.        
We also cannot conclude that the interpretation has been applied
consistently.  To the extent we have evidence of consistency, it is of
nonenforcement of the bylaw provision and not of interpretation.  As we
have stated previously, “[z]oning ordinances must provide . . . appropriate
safeguards to guide the decisionmaker.”  In re Pierce Subdivision
Application, 2008 VT 100, ¶ 20, 184 Vt. 365, 965 A.2d 468 (quotation
omitted).  While the bylaws here may provide sufficient standards with
respect to noncomplying structures, the ZA’s nonenforcement of those standards
renders his ad hoc attempts to bring violations retroactively into compliance
susceptible to the type of inconsistent and arbitrary application that we try
to avoid.[5] 
See id., 2008 VT 100, ¶ 19 (“[A]d-hoc decision-making
denies . . . due process of law.” (alteration in original)
(quotation omitted)).  We therefore cannot defer to the DRB and its
construction.[6]
¶ 31.        
For a different reason, we cannot give deference to the environmental
court’s decision.  The court neither interpreted the bylaw nor provided
any guidance on the applicability of the term “volume.”  In reaching its
decision to affirm, the court concluded only that “[the 2003] permit authorized
the construction of [the] roof and . . . enclosing that
area under [the] roof to be part of their living space.”  Additionally,
the court declined to answer neighbors’ Question 7 regarding whether the
enclosed deck violates the relevant permits or bylaws, stating that it would
not issue an advisory opinion on a matter not specifically before the
court.  
¶ 32.        
The court’s rationale is difficult to understand.  Applicants
sought to “add roof to existing deck,” not to build walls and enclose the
deck.  The permit as issued approved only “the addition of a 10’ by 20’
peaked roof over the open porch.”  Indeed, the ZA recognized that the
existing permit was insufficient to allow the walls and required applicants to
seek a corrected permit.  This required conditional use approval by the
DRB.  Squarely before the environmental court was whether the DRB erred in
granting the conditional use permit because the addition of the walls was an
expansion of noncompliance within the setback.  We cannot see how the
court could rule that answering this exact question would be an “advisory
opinion,” or that the 2003 permit authorized enclosing the deck.  We defer
to the environmental court’s interpretation of zoning ordinances because of its
expertise, In re Bjerke, 2014 VT 13, ¶ 22, ___ Vt. ___, 93 A.3d 82,
but where, as here, the court reaches its decision without actually
interpreting the governing bylaw and based on a misunderstanding of the issue
before it, we accord no deference.
¶ 33.        
Our final conclusion is perhaps the most important.  Neighbors
argue that the interpretation of the bylaws must take into account the purpose
of the Addison Town Plan to  “encourage the long-term environmental
protection of Lake Champlain and its shoreland,” Addison Town Plan 20 (2009),
as well as its restatement in the bylaws with respect to the SR District.[7]  Bylaws § 2.4 tbl.2.3(A). 
In a town with a very restrictive policy against expansion of noncomplying
structures, applicants have turned a twenty-by-thirty-foot camp with a ten-foot
deck into a twenty-by-forty-foot camp with a ten-foot deck extending in the
direction of Lake Champlain and entirely within required shoreland
setback.  It is almost certain that once one lakefront deck is enclosed on
a seasonal camp, another new deck will be built.  While the individual
steps reaching this result may appear justified under the relevant bylaws, the
final result is inconsistent with their intent and purpose.
¶ 34.        
Interpreting the language of §§ 3.7(B)(3) and 7.2 of the bylaws as
consistent with their purpose, particularly with respect to the SR District, we
conclude that the enclosure of applicants’ deck increased the volume of the
structure and therefore increased the degree of noncompliance.  We
therefore conclude that the environmental court erred in affirming the DRB’s
grant of a conditional use permit for applicants’ enclosed deck.
¶ 35.        
Finally, beyond the specific issues, neighbors allege bad faith and wrongdoing
on the part of applicants and the Town.  In making these allegations,
neighbors provide no evidence to support any misrepresentation or attempts to
bypass zoning requirements on the part of the applicants.  Rather, this
case involves applicants trying to make improvements on their seasonal camp,
and the ZA attempting to correct, rather than penalize, applicants for their
indiscretions.  While we hold that the conditional use permit granted to
applicants was in error, we do so on the narrow issues presented below and
raised in this appeal.
Affirmed on the grant of
certificates of occupancy for the detached decks.  Reversed on the grant
of a conditional use permit for the enclosed deck.
 
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 







[1] 
Justice Crawford was present for conference on the briefs, but did not
participate in this decision. 
 


[2] 
Neighbors also argue that the DRB decision should be reversed because it failed
to set forth findings of fact and conclusions of law pursuant to the site plan
criteria and that applicants failed to submit a shoreland buffer management
plan with their conditional use application.  These arguments were not
raised at the environmental court, and therefore we will not address them
here.  
 
They further argue that the DRB and
environmental court decisions conflict with provisions of the Act Relating to
the Establishment of Lake Shoreland Protection Standards.  2013, No. 172
(Adj. Sess.).  This new statutory scheme for state regulation of certain
lakeshore activities was enacted well after the events and decisions in this
case.  It does not directly control local zoning regulations or their
enforcement and has no direct applicability here.
 


[3]
 Although not addressed in the briefs, the roof extension was 1.5 feet
higher than the existing roof, adding to the overall height of the building.
 


[4]
 Neighbors urge us to rely on another environmental court decision, In
re Carrigan Waiver & Variance Application, No. 38-2-10 Vtec, slip op.
(Vt. Super. Ct. Envtl. Div. Jan. 13, 2011),
https://www.vermontjudiciary.org/GTC/Environmental/Opinions.aspx, not only
because they believe it supports their position but also because it involves
the same property at issue here.  In their view, the earlier decision
established the binding law of the case in this proceeding.  This decision
is unhelpful.  It dealt with a proposal to build an addition to the camp,
which would have increased the building’s footprint and overall internal and
external volume.  The court never needed to consider the term
“volume.”  Even if this case did help neighbors, the decision would not
constitute the law of the case because that doctrine governs only subsequent
proceedings in the same case.  Coty v. Ramsey Assocs., 154 Vt. 168,
171, 573 A.2d 694, 696 (1990).  The earlier decision of the environmental
court involved a separate and different development proposal and permit
application and therefore was not rendered in the same case.
 


[5]
 Both the Town and applicants argue that the Town’s philosophy of zoning
administration, which seeks to help landowners correct violations and comply
with the bylaws, rather than punish them, is lawful and should be
encouraged.  We are not holding otherwise.  We also are not
suggesting that the Town has been selective about when and against whom it
enforces the bylaw.  We merely caution that the selective nonenforcement
of the term “volume” in the bylaw, coupled with this method of retroactive
compliance, may open the door for inconsistent application, which is why
we do not give deference here.  
 


[6]
 As noted above, the roof extension was built higher than the existing roof
by over a foot.  The fact that the ZA took no action with respect to the
as-built extension also undermines the deference we will extend.
 


[7] 
Applicants and the Town oppose consideration of the town plan because it is
only advisory and has “no direct regulatory effect.”  In re Meaker,
156 Vt. 182, 185, 588 A.2d 1362, 1364 (1991).  We note, however, that town
plans, although advisory, are intended to guide the legislative body in
drafting the bylaws.  Kalakowski v. John A. Russell Corp., 137 Vt.
219, 225, 401 A.2d 906, 910 (1979).  Thus, a town plan can be helpful in
interpreting a zoning ordinance because we must adopt an interpretation that
implements the plan’s purpose.  Id.  That is exactly how we
are using the language of the plan and statement of purpose in the bylaws.
 



