In re Wright & Boester Conditional Use Application
| Decision Date | 15 October 2021 |
| Docket Number | No. 20-261,20-261 |
| Citation | 267 A.3d 659 |
| Parties | IN RE WRIGHT & BOESTER CONDITIONAL USE APPLICATION (Day Patterson and Janet Showers, Appellants) |
| Court | Vermont Supreme Court |
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Appellants.
Anthony N.L. Iarrapino of Wilschek Iarrapino Law Office, PLLC, Montpelier, for Appellees.
Sara Davies Coe of Davies Law, PLC, Barton, for Amicus Curiae Town of Greensboro.
PRESENT: Robinson, Eaton, Carroll and Cohen, JJ., and Corsones, Supr. J., Specially Assigned
¶ 1. Applicants Marian Wright and Greg Boester and their neighbors, Day Patterson and Janet Showers, own abutting parcels of land on the shore of Caspian Lake in Greensboro. Neighbors appeal from an Environmental Division decision granting applicants a permit to tear down and reconstruct a lakeside structure on their parcel in accordance with a revised plan they submitted just prior to trial. We reverse, concluding that the court erred both when it determined that the structure at issue was properly designated an "accessory structure" rather than a "boathouse" under the applicable zoning bylaws and when it declined to remand the materially revised proposal for consideration by the municipal developmental review board in the first instance.
¶ 2. The following facts are drawn from the Environmental Division's findings. The parties own neighboring waterfront properties situated on Black's Point, a small peninsula in Caspian Lake. Both properties are accessed using a private road which ends in a circular turnaround serving a small cluster of homes on the Point.
¶ 3. Applicants’ parcel contains a house, a shed, and the two-story lakeside structure which is the subject of this dispute. The structure is visible from the turnaround, from an established path running along the shoreline, and from the lake. Because of its location on the sloped shore, it appears to be a single-story building when viewed from the turnaround, while both floors are visible from the lake. Its first floor is used to store canoes, kayaks, and related accoutrements; double doors open to a wooden dock extending onto the lake. Because the building is situated close to the boundary of neighbors’ property, a portion of that dock may encroach on neighbors’ parcel by a matter of inches. The structure's upper level—accessed through an external door facing the turnaround—has several rooms, windows overlooking the lake, and a toilet, sink, and shower. This floor is used both as additional living space and for storage of household items.
¶ 4. In December 2017, applicants sought a conditional use permit or variance from the Greensboro Development Review Board (DRB) allowing them to demolish and rebuild the lakeside structure on its existing footprint, but add a third level, increasing the building's height by ten feet. The DRB considers such proposals against the Greensboro Zoning Bylaw, which is intended to provide for "orderly community growth" and "further the purposes of the ... Greensboro Town Plan." Greensboro Zoning Bylaw [Bylaw] § 1.2, https://www.greensborovt.org/wp-content/uploads/2012/10/Greensboro-Zoning-Bylaw-Original-2015.pdf [https://perma.cc/2QQJ-JHGD]. The Town Plan recognizes Caspian Lake as "the Town's natural resource jewel." In order to maintain this resource, the Plan includes several goals relevant here: (1) to preserve Caspian Lake and the surrounding land as a recreation area; (2) to protect its shorelines from erosion and overdevelopment; and (3) to "ensure the views of our rural landscape are not significantly altered by man-made structures that are out of character with the community."
¶ 5. Because it is built on land contiguous to Caspian Lake, the structure at issue here is located within what the bylaws designate as the Shoreland Protection District (SPD). Id. § 2.7(A). The SPD was established to protect "surface water resources" on Caspian Lake and to preserve the mix of residential and summer homes, together with the "recreation uses traditional to the[ ] lake[ ]." Id. § 2.7(B). The structure is also located within an area the bylaws designate as the Shoreland Buffer Resource Zone (SBRZ), which encompasses the land on the shore of the lake "consisting of trees, shrubs, Natural Ground Cover and an understory of plants that functions to filter runoff, control sediment and nutrient movement, control erosion and provide fish and wildlife habitat." Id. § 8.4.
¶ 6. The Greensboro Zoning Bylaw came into effect in 1972, after the existing structure was built. It is undisputed that the structure is therefore a legal nonconforming structure. Legal nonconforming structures are those constructed prior to the adoption of the bylaws, or under an earlier, less-restrictive iteration thereof, which are not in compliance with the provisions of the current bylaws. Id. § 3.8. Although such structures may exist "indefinitely" under the bylaws, they may not be "moved, altered, extended, or enlarged in a manner which will increase the existing degree of nonconformance." Id. § 3.8(A), 3.8(A)(1). They may, however, be demolished and reconstructed—subject to DRB approval and where such reconstruction does not increase the original structure's degree of nonconformance. Id. § 3.8(A)(2). The same general principle applies to lawful nonconforming uses predating zoning: they may continue "indefinitely" but may not be expanded or extended such that the degree of nonconformance increases. Id. § 3.8(B).
¶ 7. In the bylaws, the only exception to the prohibition on new development within 150 feet of Caspian Lake applies to boathouses; a single boathouse may be added to a tax lot as a conditional use within the SBRZ. Bylaw § 8.8(B)(3). A "boathouse" is defined as "[a] building at or near the high[-]water mark used only for storage of boats." Id. § 8.4. Regulations on boathouses were amended in 2015 to limit each lot to one boathouse and prohibit boathouses from having decks or porches. Id. at 6. The bylaws cap the maximum height for a boathouse at fifteen feet. Id. § 8.8(B)(3)(d). An "accessory structure," in contrast, is a catchall designation encompassing buildings "customarily incidental and subordinate to a principal building" on the same lot or an adjoining lot with the same owner; such structures may be twice as tall as boathouses, with a maximum height of thirty feet. Id. §§ 2.7(E), 9.2.
¶ 8. In February 2018, the DRB approved the permit application with conditions. It rejected applicants’ assertion that the structure was an accessory structure subject to the thirty-foot height limit and concluded that the structure was a "boathouse" as that term is defined in the bylaws, albeit one with living space above it, and thus subject to the more restrictive fifteen-foot height limit. It therefore denied the application with respect to the proposed addition of a third story. Because applicants represented that the building was to be constructed on the preexisting nonconforming footprint, the DRB did not consider the applicable setback standards. The upshot was that the DRB approved reconstruction of the structure on its existing footprint, but only to its existing height, finding that this ensured the rebuilt structure would not increase the existing degree of nonconformity.
¶ 9. Applicants appealed the DRB's decision to the Environmental Division. There, they filed a motion for summary judgment asking that the court find, as a matter of law, that the existing structure is properly characterized as an "accessory structure" rather than a "boathouse" under the bylaws. The Town and neighbors filed a joint cross-motion requesting that the court enter judgment that the applicants could not reconstruct the building to the proposed height without causing an "undue adverse effect" on the surrounding area within the meaning of the bylaws. The Environmental Division granted summary judgment for applicants on the first question, agreeing that the building is properly classified as an "accessory structure," and not a "boathouse" under the bylaws. However, it denied summary judgment for neighbors and the Town on the "undue adverse effect" question after concluding that the issue was not raised in the statement of questions filed on appeal. Finally, it granted applicants permission to amend their statement of questions to add a question challenging the DRB's decision that the proposed structure fell short of the conditional-use standard at Bylaw § 5.4(C)(5).
¶ 10. Shortly before trial on the merits of the application, applicants submitted a redesigned plan for the structure which differed from their initial proposal in several respects. It continued to include a third story, but was three feet shorter than the initial proposal—making it seven feet higher than the existing structure, lower than the maximum height for accessory structures, and higher than the maximum height for boathouses. This was accomplished by reducing the height of the first-floor boat-storage area to a four-foot-high "crawlspace." Applicants also proposed to rotate the reconstructed building's footprint1 away from its current location by several inches and move the entire structure three feet further away from the shoreline. They represented that the purpose of this revision was to respond to concerns by neighbors about the location of their dock with reference to the property line. Given the shift away from the shoreline, applicants also proposed to install a fiberglass ramp from the lower level's double doors into the lake in order to facilitate access and mitigate erosion. The relocation would reduce—but not eliminate—the structure's nonconformity with the bylaws’ setback requirement.
¶ 11. Neighbors and the Town requested that the redesigned plan be remanded to the DRB. The Environmental Division declined to do so, noting that the changes were made in response to neighbors’ concerns and were not so "material and substantial" as to require remand to the...
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