                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT



               In re: Appeal of Allen
               Mulheron
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                                                       Docket Nos. 172-8-00 Vtec
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               Town of Highgate, Plaintiff                and 217-9-00 Vtec
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               v.
               Allen Mulheron, Defendant.



                                        Decision and Order

   In Docket No. 172-8-00 Vtec, Appellant Allen Mulheron appealed from a decision of the
Zoning Board of Adjustment (ZBA) of the Town of Highgate, denying his appeal of a notice of
violation, his request for a stay of enforcement, and his request for a variance from the front
setback requirements. In Docket No. 217-9-00 Vtec, the Town has filed an enforcement action
against Mr. Mulheron to enforce the front setback requirements. Appellant-Defendant is
represented by Michael S. Gawne, Esq.; the Town is represented by David A. Barra, Esq.;
Interested persons Lee and Lori Olds and Davey and Katherine LaFar, who own Lots 4 and 5 in
the so-called Misty Meadows subdivision, have entered their appearance and represent
themselves.

    The Court ruled on summary judgment resolving Question 1 of the Statement of Questions
and established that the method for measuring the front setback was to the edge of the property
line, that is, to the edge of the surveyed road right-of-way rather than to the edge of the traveled
way. 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.

   Appellant-Defendant obtained subdivision approval in 1995 for a six-lot subdivision known
as Misty Meadows. The lots range in size from 1.01 acres to 1.75 acres. The subdivision is
served by a 50-foot-wide right-of-way, known as Misty Meadows Road, providing access from
the lots to Carter Hill Road. The approved subdivision plan states that the right-of-way was
planned to be deeded to the Town, and depicts the edge of the right-of-way as a dashed line. The
right-of-way ends in a 110.8-foot-diameter cul-de-sac. The property is in the Agricultural zoning
district, in which the minimum front and side setbacks are 60 feet. The approved subdivision
plan states the required setbacks in a note, and also depicts them on each lot as a dotted-and-
dashed line marked A zoning setback line.@ The area within this line is sometimes also called the >
building envelope= for the lot, that is, the area within which a building could be placed.

   For each lot, the approved subdivision plan shows the planned location of a drilled well and
of a septic field, which may be located outside the building envelope as they are underground
improvements and not structures. Within the building envelope for each lot, the approved
subdivision plan also shows a A proposed house site.@ The proposed house sites for each lot meet
the isolation distances from the wells and septic fields and the setback requirements of the
zoning bylaws.

   Appellant-Defendant owns Lot 6 in the subdivision, which according to the subdivision plan
has 234.69 feet of frontage on the right-of-way and 23.17 feet of frontage along the curve of the
cul-de-sac. On December 2, 1999, Appellant-Defendant applied for a building permit to build a
single-family modular home on the lot. The application form states A all construction to be
completed in accordance with the Zoning Laws of the Town of Highgate and the State of
Vermont.@ The sketch plan on the application, provided by Appellant-Defendant, shows the front
setback to the subdivision road as 70 feet, and the side setback to the LaFar property as 90 feet.
The Zoning Administrator approved the permit on December 14, 1999. Lee Olds appealed the
permit to the ZBA, which upheld it in February 2000 as meeting the Zoning Bylaws. No party
further appealed the permit, and it became final. However, Mr. Olds= appeal raised the question
of whether A the mobile home was too close to a right-of-way@ and the ZBA= s decision discussed
the question of A whether the home as built violates the permit and/or the Zoning Bylaws;@
therefore, we find that the slab was installed and the home was placed on it some time in late
December 1999 or January 2000.

   An electric utility line passes across the rear portion of Lot 6; it is shown in the 1995
approved subdivision plan. Lot 6 also contains an outcrop of ledge above the surface of the
original ground level, which was apparent and not hidden from view in 1995 when Appellant-
Defendant applied for and obtained the subdivision approval, and in 1999 when Appellant-
Defendant applied for and obtained the building permit for the construction on Lot 6. Wishing to
avoid the expense of moving or burying the power line and of blasting or otherwise removing
enough of the ledge in the area of the proposed house sufficient to install the slab for the house,
Appellant-Defendant instead installed a concrete slab and placed a double-wide modular home
on the slab, located in part within the front setback area and outside the building envelope. He
brought in fill to level the site for placement of the slab and house. Prior to construction,
Appellant-Defendant did not seek any amendment of the subdivision plan or of his building
permit, nor did Appellant-Defendant seek a variance to extend the house into the front setback.

   The front side of the house as-built is located at its nearest point 41.14 feet from the surveyed
edge of the right-of-way and at its farthest point 50.35 feet from the surveyed edge of the right-
of-way. It is therefore in violation of the front setback requirements of the Zoning Bylaws by
approximately ten to nineteen feet.

   The Zoning Administrator notified Appellant-Defendant of the violation in writing on June 1,
2000, and gave him seven days to cure the violation. In an effort to cure the violation by
obtaining a variance from the front setback requirements for the as-built location, on June 12,
2000, Appellant-Defendant applied for the variance from the front setback requirements that is
the subject of this appeal. As the reason for appeal, he stated: A LEDGE = UNIQUE PHYSICAL
CIRCUMSTANCES.@ The ZBA denied the variance application on July 27, 2000.

   Two other applications for variances involving ledge have been made within the Town since
Appellant-Defendant= s 1999 building permit application, that is, since the time his variance
application should have been filed. Both were granted. The Brouilette lot contained an existing
home and garage, involved slopes and banks (unusual topography) as well as the ledge, and was
not the subject of a subdivision plan approval showing an approved building envelope. The
Breton lot contained ledge discovered only after site preparation had begun for building in the
location approved in the subdivision plan. Moreover, neither of those variances was appealed,
and this court did not determine whether they met the statutory variance criteria.

   The slab and house on Lot 6 remained at its as-built location through the date of trial on
September 4, 2001; the Court has not been informed that it has been moved since that date. The
Town expended 1,914.68 in legal expenses to enforce its Zoning Bylaws in this matter.

Variance

   In order to qualify for a variance, Appellant must meet all five requirements of 24 V.S.A '
4468, as incorporated in ' 240 of the Zoning Bylaws:

(1) That there are unique physical circumstances or conditions, including irregularity,
narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property, and that unnecessary hardship is due to such
conditions, and not the circumstances or conditions generally created by the provisions of the
zoning regulation in the neighborhood or district in which the property is located;

(2) That because of such physical circumstances or conditions, there is no possibility that the
property can be developed in strict conformity with the provisions of the zoning regulation and
that the authorization of a variance is therefore necessary to enable the reasonable use of the
property;

(3) That the unnecessary hardship has not been created by the appellant;

(4) That the variance, if authorized, will not alter the essential character of the neighborhood or
district in which the property is located, substantially or permanently impair the appropriate use
or development of adjacent property, reduce access to renewable energy resources, nor be
detrimental to the public welfare; and

(5) That the variance, if authorized, will represent the minimum variance that will afford relief
and will represent the least deviation possible from the zoning regulation and from the plan.
   The presence of ledge on Lot 6 within the building envelope is not a unique physical
circumstances or condition peculiar to the particular property. It is not uncommon to have to deal
with the presence of ledge on building sites.

   With the expenditure of money to remove a portion of the ledge and move or bury the power
line, the property can be developed in strict conformity with the provisions of the zoning bylaws.
Therefore, a variance is not necessary to make a reasonable use of the property.

   Most importantly, under Vermont law, Appellant has created the hardship from which he now
seeks relief. That is, Appellant applied for and received subdivision approval of the particular
configuration of Lot 6, including its building envelope, knowing the condition of the land and the
presence of ledge on it. By creating lot 6 in that configuration, he cannot now claim he should
receive relief from the expense of dealing with the presence of ledge in the building envelope on
that lot. See, e.g., In re Cumberland Farms, Inc., 151 Vt. 59, 61 (1989) and cases cited therein.

   Finally, although it would have been more expensive to place the house within the building
envelope, the proposed setback variance does not represent the minimum variance which could
afford relief, as the evidence showed that Appellant could have removed sufficient ledge and
could have moved the power line to place the house within the building envelope.

Enforcement Action

   Appellant-Defendant argues that the Town has engaged in selective enforcement against him,
by granting variances to two other applicants with ledge on their property. A litigant wishing to
show selective enforcement must show more than the bare fact that the municipality has failed to
enforce the zoning ordinance in similar circumstances. Rather, the litigant must meet both parts
of a two-part test. The litigant must show not only that the person, compared with others
similarly situated, was selectively treated; but also that such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person. In re Appeals of
Letourneau, 168 Vt. 539, 549 (1998) (citations omitted).

   Appellant-Defendant did not show the first prong of the test. Not only did the other two
examples of variances granted for the presence of ledge differ on their facts from the present
case, but they were not enforcement actions. To show selective enforcement, it is necessary to
compare the Town= s failure to bring an enforcement action against another violation with its
decision to bring an enforcement action against Appellant-Defendant, in circumstances similar to
that in the present case, and that the decision to enforce against Appellant-Defendant was
motivated by the impermissible considerations. Appellant-Defendant has shown that some
degree of personal animus or business competition may exist between himself and the Zoning
Administrator, the Chair of the ZBA, and the Chair of the Planning Commission. However, he
has not shown that the determination to bring the enforcement case was motivated by a malicious
intent to injure him. We also note that the determination of whether Appellant-Defendant
qualifies for a variance was made de novo by the Court in the present appeal unaffected by those
circumstances.
   Appellant-Defendant has violated the Zoning Bylaws of the Town of Highgate, the 1995
subdivision approval, and the 1999 building permit, by constructing the slab and installing the
modular home on Lot 6 within the front setback area. The Town requests both a penalty and an
order that the modular home be moved on the lot to bring it into compliance. Both requests are
granted. Appellant-Defendant will be required to move the house within the building envelope as
shown on the approved subdivision plan, and, if the proposed location differs from that shown on
the 1999 building permit, he must also apply for and obtain an amended building permit before
taking that action.

    The Town requests a penalty of $5 per day for each day of violation between June 1, 2000,
the date of the notice of violation, and September 26, 2001, the date of its request, a period of
475 days, for a total of $2,375. We note that the earliest date from which a penalty could be
calculated would be June 8, after the seven day period to cure given in the Notice of Violation.
However, in the present case we recognize that Defendant-Appellant attempted to cure by
making the belated application for a variance, and requested a stay of enforcement. The ZBA did
not rule on the variance request or the stay until July 27, 2000; therefore the penalty will be
calculated from that date. The penalty should compensate the Town if possible for the costs of
enforcement and should also recognize the factors affecting the significance of the violation. In
the present case, we consider in particular that Appellant-Defendant himself applied for,
obtained, and declined to appeal the provision of the permits he later violated. He chose to install
the slab in a location other than that approved on the subdivision plan or the building permit,
without applying for an amendment of those approvals or permits, and without attempting to
request a variance until after being notified of the violation. Accordingly, the Court will impose a
penalty of $6 per day from July 27, 2000 through September 26, 2001, a period of 426 days, for
a total penalty of $2,556.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED in Docket No. 172-8-00
Vtec that Appellant Allen Mulheron does not qualify for a variance for the as-built location of
the home on Lot 6 of the Misty Meadows subdivision, and a variance is therefore DENIED.

   Based on the foregoing, it is hereby ORDERED and ADJUDGED in Docket No. 217-9-00
Vtec that Defendant Allen Mulheron has violated the Zoning Bylaws of the Town of Highgate,
the 1995 subdivision approval, and the 1999 building permit, by constructing the slab and
installing the modular home on Lot 6 within the front setback area.

   Beginning as soon as the 2002 construction season makes the work possible, and so that it is
completed by or before May 31, 2002, Appellant-Defendant shall prepare the site and shall
install a slab or slab addition sufficient to move the house within the building envelope as shown
on the approved subdivision plan, and shall move the house to the approved location. If the
proposed location differs from that shown on the 1999 building permit, Appellant-Defendant
shall first apply for and obtain an amended building permit before commencing any work,
including any site work.

    Appellant-Defendant shall pay a penalty to the Town of $6 per day for each day of violation
between July 27, 2000, the date of denial of the variance and September 26, 2001, the date of the
last requested findings, a period of 426 days, for a total of $2,556. This penalty is intended to
compensate the Town for the costs of this enforcement action as well as to recognize that
Appellant-Defendant himself applied for, obtained, and declined to appeal the provision of the
permits he later violated and that he chose to install the slab and house in a location other than
that approved on the subdivision plan or the building permit, without applying for an amendment
of those approvals or permits, and without attempting to request a variance until after being
notified of the violation. We note for the parties= guidance that if Appellant-Defendant does not
move the house by the date required in this order, in any proceeding to further enforce this order
he may be liable to the Town for a penalty of up to $100 per day under 24 V.S.A ' 4444, and
other remedies as may be appropriate in an action under 24 V.S.A ' 4470(c) or in a contempt
proceeding.

   Dated at Barre, Vermont, this 16th day of January, 2002.



___________________
Merideth Wright
Environmental Judge
