In re Eagle Mountain Shores, Inc.

• Decision Date: 29 August 2022
• Docket Number: 151-11-17 Vtec
• Parties: In re Eagle Mountain Shores, Inc., CU
• Court: Superior Court of Vermont

In re Eagle Mountain Shores, Inc., CU

No. 151-11-17 Vtec

Superior Court of Vermont, Environmental Division

August 29, 2022

ENTRY REGARDING MOTION

THOMAS G. WALSH, JUDGE.

Title: Motion for Partial Summary Judgment (Motion # 2)

Filer: Lisa B. Shelkrot, Attorney for Appellant Edward Norris

Filed Date: June 10, 2022

The Motion is GRANTED.

Appellant Edward Norris (Appellant) appeals from a decision of the Town of Milton Development Review Board (DRB). In that decision, the DRB approved the conditional use and variance applications of Applicant Eagle Mountain Shores, Inc. (Applicant) to install a terraced stone wall on a lakeshore parcel owned by Applicant. Presently before the court is Appellant's unopposed motion for partial summary judgment on Questions 5 and 6 of its Statement of Questions, which concern whether Applicant is entitled to a variance.

Factual Background

We recite the following factual and procedural background, which we understand to be undisputed unless otherwise noted, based upon the record before us and solely for the purposes of deciding the pending motions. These recitations do not constitute factual findings, since factual findings cannot occur until after the Court has completed a trial. Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633 (2000) (mem.); see also Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14.

1. Applicant owns a parcel of land on the shore of Lake Champlain in Milton

2. The parcel of land does not have an E-911 address or Tax ID, or at least none have been reported

3. The subject parcel is in the Shoreland Residential (R6) Zoning District. Some or all of the subject parcel is also located in the Flood Hazard Overlay (FHO) District

4. Applicant's shareholders are Tracey Ann Tobin Christopher and Mary Jeanne Mitiguy, and Lawrence and Yvette Hochberg.

5. These shareholders live on properties across Eagle Mountain Harbor Road from the subject parcel.

6. The shareholders have historically used the subject parcel to access the lake.

7. In 2003, Applicant's predecessor in interest applied for and obtained after-the-fact variances for a wooden deck and retractable staircase. The staircase runs down a steep cliff from Eagle Mountain Harbor Road to the lake shore.

8. These variances approved the building of the deck and staircase within 3 feet of the road instead of the usual 35-foot front yard setback and 0 feet from Lake Champlain instead of the usual 200-foot shoreline setback. The variances were not appealed.

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9. Over the years since the stairs and deck were constructed, a portion of the stairs and deck have been destroyed by high water events.

10. There is some erosion on the bank down which the stairs currently run.

11. In March of 2021, Applicant submitted the present applications, through which it proposes to remove the remainder of the existing wooden deck and staircase and replace it with a terraced stone retaining wall.

12. A portion of this wall is proposed be used as a "party patio."

13. The wall would enable reconstruction of a staircase, although no staircase is proposed as part of the present applications.

14. The primary purpose of the stone terraced wall is to provide access to the lakeshore.

15. An additional benefit of the wall is that it would help prevent erosion on the cliff between the Lake and Eagle Mountain Harbor Road. Applicant does not maintain that the proposed wall is necessary to prevent erosion.

16. Appellant owns and maintains a residence on the parcel immediately to the south of the subject parcel.

17. In these applications, Applicant proposes to build the retaining wall within 21 feet of the southern property line shared with Appellant.

18. The side-yard setback established in the R6 District is 35 feet.

19. Applicant investigated the possibility of replacing the existing damaged wood staircase with a metal staircase. Applicant ultimately did not pursue that possibility due to concerns over expense, aesthetics, and the fact that such a staircase would not help to prevent erosion.

Legal Standard

In a de novo appeal such as this, we "do[] not consider any previous decisions or proceedings below; rather, we review the application anew as to the specific issues raised in the statement of questions." In re Killington Village Master Plan Act 250, No. 147-10-13 Vtec, slip op. at 5-6 (Vt. Super. Ct. Envtl. Div. Aug. 6, 2014) (Durkin, J.); see also Chioffi v. Winooski Zoning Bd., 151...