1 As of the unappealed April 7, 2006 ZBA decision, fo r zoning purposes the three

lots are considered to be a single merged parcel of property.

1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Fenoff Accessory Dwelling Application } Dock et No. 280-12-06 Vtec } }
Decision and Order on Cross-Motions for Summary Jud gment Appellants Charles R. Fenoff, Jr. and Kathy Fenoff appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Wes tmore, denying their application for an accessory dwelling unit. Appellants are rep resented by Charles D. Hickey, Esq.; the Town is represented by Edward R. Zuccaro, Esq. and Kristina I. Michelsen, Esq.; and Interested Persons Aline B. Harter, Elaine M. Cashin, and William L. Cashin, III, represent themselves, but have not taken an active role with r espect to the pending motions. Appellants and the Town have moved for summary judg ment. The following facts are undisputed unless otherwise noted. Appellants own property at the address of 104 Stone y Brook Lane, in the Town of Westmore. The property consists of what were 1 three small adjoining parcels of land located between Stoney Brook Lane and Stoney Brook (also known as Doring Brook), a year-round stream. Stoney Brook Lane has a travele d way approximately 17 feet in width. These three lots are the three most westerly of eig ht small lots along Stoney Brook Lane and were originally designated as Lots 6, 7, and 8 of that group. For the purposes of clarity in differentiating certain locations, and because th e lots are referred to by the former lot numbers in the ZBA decisions, this decision will al so refer to them by the former lot2The site plan for Appellants’ proposed wastewater system designates the merged

property as consisting of two lots, numbered 1 and 2, as if there were a property boundary at this location. Because the property is merged, a nd the proposed accessory structure can only qualify as accessory if it is on the same lot as the principal use or structure, this decision does not make use of the Lot 1 and Lot 2 d esignations.

2 numbers as necessary. Former Lot 6 is .28 acre (12,197 square feet) in are a, former Lot 7 is .34 acre (14,810 square feet) in area, and former Lot 8 is .33 acre (14,375 square feet) in area. Lot 8 is the most westerly of the lots; it is a corner lot that also has frontage on Vermont Route 5A. Due to the course of the brook, the merged property is o nly approximately thirty feet wide at the boundary between former Lots 7 and 8. 2The westerly boundary of Lot 8, at Route 5A, is approximately 871⁄2 feet wide, while the width of Lot 6 at the house location is approximately 120 feet. All linear measurements ar e by scale from the site plan. Former Lot 6 contained an existing house and wastewater sy stem, and the other two lots were unimproved, or at least had no separate wastewater s ystem. Under § 204 and Table 201 of the 2006 Zoning Bylaw, and under Table 201 of the 2000 Zoning Bylaw, the minimum lot size for these l ots is 40,000 square feet. Under § 301.2 of the 2006 Zoning Bylaw, existing small lots are s pecifically deemed to be merged with contiguous lots under common ownership, unless eachlot had been developed with a functioning water supply and wastewater disposal sy stem. The unappealed April 7, 2006 ZBA decision granting the Fenoffs a variance from the setback requirements for the
structure on Lot 8 determined that all three unders ized parcels had merged and would be considered as a single lot under § 301.2. Because Stoney Brook (Doring Brook) is a year-round stream, the Shoreline Protection Area provisions of § 315.1 of the 2000 Z oning Bylaw (§ 316.1 of the 2006 Zoning Bylaw) are applicable. The Shoreline Protection Ar ea extends fifty feet from the brook in3 Based upon the grant of the variance, the Notice o f Violation was withdrawn,

resulting in the dismissal of Docket No. 9-1-05 Vte c as moot.

3 the area of Appellants’ property. The applicable s etback to a road right-of-way is twentyfive feet. Zoning Bylaw, Table 201. In 2004, Appellants had constructed a building and wastewater disposal system on Lot 8. The Zoning Administrative Officer issued a Notice of Violation for setback violations
from the brook and the road. The Notice of Violati on was upheld by the ZBA; Appellants appealed that decision in Docket No. 9-1-05 Vtec. The Notice of Violation appeal was placed on inactive status for a time, while Appellan ts applied for a variance or as-built permit to leave the structure and its wastewater sy stem in place. In Docket No. 199-9-05 Vtec, Appellants appealed the ZBA’s August 30, 2005 d enial of that variance. However, while those appeals were pending, newly-di scovered evidence as to the width of Stoney Brook Lane resulted in a remand of Docket No. 199-9-05 Vtec to the ZBA for its consideration of the variance application in light of that evidence. In re: Appeal of
Fenoff , Docket Nos. 9-1-05 Vtec and 199-9-05 Vtec (Vt. En vtl. Ct. Jan. 10, 2006) (unpublished entry order). On April 7, 2006, the ZBA granted Appellants a vari ance to leave the accessory building in place, 3 but to use it only as a garage and for storage. Th e decision determined
that the road had been laid out with a sixteen-foot -wide right of way, so that the building is set back 231⁄2 feet from the edge of the right-of-way, and determined that the building’s
closest corner is located 241⁄2 feet from the brook. The April 2006 ZBA decision denied approval of the use of the accessory building as anaccessory dwelling, because it was within the Shoreline Protection area of Stoney Broo k but failed to meet the separation distance requirements of § 315.3 between the 2004 s eptic system and the seasonal high water level of the brook. The April 2006 ZBA decis ion imposed several conditions,4The plans show a well with water lines serving bo th buildings, and show separate

mound wastewater disposal systems for each building . It is not clear to the Court whether the disposal system shown on the plans as serving the existing house represents the existing system or a new proposed system for the ho use.

4 including a prohibition against using the structure for living quarters, a prohibition on the provision of water supply or toilet facilities to t he building, and a requirement that the wastewater disposal system installed in 2004 be dis connected and its tank removed. The April 2006 ZBA decision was not appealed, and became final. Appellants complied with the disconnection and removal requirements of the A pril 2006 ZBA decision. An amended Zoning Bylaw was adopted on June 6, 2006, effective June 27, 2006. It must have been proposed and noticed for its firs t public hearing at some time prior to that date, but the date of that notice has not beenprovided to the Court. Any application
filed after that date should have been reviewed und er the proposed 2006 Zoning Bylaw within the first five months (150 days) after that date. 24 V.S.A. § 4449(d). The 2006 Zoning Bylaw contains § 319, regarding acc essory dwelling units, which implements the 2004 statutory amendments. 24 V.S.A. § 4412(1)(E). Appellants had an engineering consultant test the soils on the merged property and design a water supply and wastewater system to serve the accessory building. 4 The proposed wastewater system for the accessory bu ilding is a mound system that complies with both the 2002 and the 2006 state wast ewater rules. The primary mound is proposed to be located 161⁄2 feet from the edge of th e right-of-way of Stoney Brook Lane, or 16 feet from the edge of the current traveled w ay. The proposed wastewater system is located between 50 and 55 feet from the high water level of Stoney Brook, that is, beyond the required setback from the brook. The replaceme nt mound location is proposed to be located approximately ten feet, by scale, from the edge of the Route 5A right-of-way, and approximately twenty feet, by scale, from the edge o f the traveled way of Stoney Brook5 Material facts are in dispute, or at least have no t been provided to the Court in

connection with the pending motions, as to whether Appellants had applied for a variance for the roadside setback.

5 Lane. On August 19, 2006, Appellants filed a new applica tion for an accessory apartment; the application has not been provided to the Court in connection with the pending motions. The proposed accessory apartment meets the size requirements of § 319.1(2) of the 2006 Zoning Bylaw. It is proposed within the existing a ccessory structure that does not meet either the 25-foot front (roadside) setback or the 50-foot shoreline protection area (brook)
setback. The ZBA denied the application on the basis that th e mound system for the proposed accessory apartment would violate the road side setback requirements, and that it did not qualify for a variance 5 for the roadside setback. The ZBA also considered the conditional use criteria, and determined that the m ound system for the proposed accessory apartment would have an adverse effect on traffic u sing Stoney Brook Lane. This application is before this Court de novo in this appeal. The Court must apply the substantive standards that were applicable befo re the ZBA. 10 V.S.A. § 8504(h), V.R.E.C.P. 5(g).

Appellants have applied to create an accessory dwel ling unit in an existing structure which itself does not meet the setback requirements of the Zoning Bylaw. It therefore must obtain conditional use approval under § 319.2, as w ell as meeting the applicable requirements of § 319.1. The parties do not disput e that the proposed accessory dwelling unit meets the requirement of § 319.1(2). Section 319.1(1) requires that “[t]he property has sufficient wastewater capacity.” This section does not require a showing of sufficie nt wastewater capacity for the proposed6A note on the plans states that each wastewater s ystem shown on the plans is sized

for a three-bedroom house, although an accessory dw elling unit is in fact limited under § 316.1 to a maximum of one bedroom. No proposals ha ve been made to reduce the size of the system for the accessory unit or to increase th e size of the system near the existing house to serve both dwelling units.

6 accessory apartment alone; rather, it requires a sh owing that the property as a whole (that is, the other uses on the property together with th e proposed apartment) has sufficient wastewater capacity. Under the proposal before the Court in this appeal, 6the property as a whole only has “sufficient wastewater capacity” for the existing house plus the proposed accessory dwelling unit if the mound system proposed for the accessory dwelling unit can be approved. Two aspects of the proposed mound systemare at issue in the present motions: the approval of its technical requirements as a was tewater system, and any non-technical (e.g. , setback) requirements applicable under the ZoningBylaw. Appellants argue that both the technical and the setback requirements for the mound system are preempted by state law, and also argue that the mound system sho uld not be considered to be a “structure” subject to the setback requirements of the Zoning Bylaw.

Questions 1(a) through 1(e), and Question 3, of the S tatement of Questions The term structure is defined in § 402 of the Zonin g Bylaw as “[a] combination of materials to form a construction for use, occupancy, or ornamentation[,] whether installed on, above, or below the surface of land or water.” Because this definition specifically includes underground structures, wastewater systems fall within the definition, whether they are completely underground after installation, or whether they are mound systems that project above the normal grade level after ins tallation. The proposed mound system
therefore constitutes a structure under this defini tion. Summary judgment is therefore7The replacement mound, if built in the proposed location, also would not meet

the municipal road setback requirements at either S toney Brook Lane or Route 5A. However, Question 3 of the Statement of Questions s uggests that no replacement mound is required for the system under the State Wastewat er System and Potable Water Supply Rules, in which case its noncompliance with the roa d setback would be moot. Material facts are in dispute, or at least have not been pro vided to the Court, as to whether the state rules require a replacement area for this proposed system.

8 Within the Shoreline Protection Area, § 316.1(C) a llows additions to existing structures, as long as they are no closer to the wa ter than the existing structure and as far from the water as possible. Section 316.1(G) allow s waiver of the Shoreline Protection Area provisions. However, even if the mound system is co nsidered as an addition to the existing building, Appellants could only apply for a waiver of the shoreline setback under this section, not a waiver of the roadside setback.

7 denied to Appellants and granted in favor of the To wn on Questions 1(a) and 1(b) of the Statement of Questions. However, a close reading of § 308 of the Zoning Byl aw suggests that only those structures that project above normal grade level ar e prohibited from projecting into the required setbacks. Section 308 states in full as f ollows: All structures, whether attached to the principal s tructure or not, and whether open or enclosed, including porches, carport s, balconies, or platforms above normal grade level, shall not proje ct into any required setback. Even if culverts, driveways, and underground wastew ater systems are not prohibited from projecting into the roadside setback area, as the pr oposed mound system 7projects above the normal grade level, it is precluded by § 308 fr om projecting into the front setback of Stoney Brook Lane. Unless a variance is obtained from the roadside setback for the proposed primary 8 mound system, it cannot be built as proposed. Appellants argue that the practice of the ZBA has b een not to require a zoning permit for septic systems, not to require variances for septic systems within the roadside9 State of Vermont, Agency of Natural Resources, Depa rtment of Environmental

Conservation, Wastewater Management Division, Environ mental Protection Rules, Chapter 1, Wastewater System and Potable Water Suppl y Rules (Sept. 29, 2007) (“2007 ANR Wastewater System and Potable Water Supply Rule s”), available at http://www.anr.state.vt.us/dec/ww/Rules/OS/2007/Fin alWSPWSRuleEffective20070929. pdf

8 setback, and to allow other structures such as fenc es, mailboxes and culverts within the roadside setback without requiring a variance. The issues raised in Questions 1(c), (d), and (e), as to the past practices of the ZBA in cases that were not appealed, are not relevant to the present analysis for two reasons. First, this i s not a case arguing selective enforcement.
In re Letourneau , 168 Vt. 539, 549–50 (1998). Second, the ZBA’s int erpretation it is not necessary as a matter of statutory construction, as the language of the Zoning Bylaw is not ambiguous language. See, e.g. , In re Maple Tree Place , 156 Vt. 494, 499–500 (1991) (interpretation by municipal staff and zoning board may be determinative in a close case); In re Vermont Railway, 171 Vt. 496, 500 (2000) (consider agency’s interp retation of its own statute if language is ambiguous).

Question 1(f) of the Statement of Questions
Under 2007 State Rules Under amendments to the state statutes regulating w ater supplies and wastewater disposal, as of July 1, 2007, “those provisions of municipal ordinances and zoning bylaws that regulate potable water supplies and wastewater systems” were “superseded by the provisions of this chapter and the rules adopted un der this chapter.” 10 V.S.A. § 1976(b). The Agency of Natural Resources adopted rules 9 carrying out these amendments effective September 29, 2007. The 2007 ANR Wastewater System and Potable Water Su pply Rules provide that towns may not have more stringent technical require ments, but also recognize that10 Document provided as Town’s Exhibit D; internet c itation not provided.

11 Document provided as Town’s Exhibit E; internet c itation not provided.

9 “[b]uildings or structures, potable water supplies, and wastewater systems may also have to comply with municipal ordinances and bylaws thatrequire municipal permits.” 2007 ANR Wastewater System and Potable Water Supply Rule s, § 1-301(d). In the Frequently Asked Questions section of the AN R Department of
Environmental Conservation website related to these rules, 10 as well as in the ANR’s Response to Comments 11 on the proposed rules, the ANR has made it clear th at municipalities may continue to regulate the placem ent of wastewater and water supply structures and systems in the course of their gener al regulation of construction or development, so long as the particular regulation a pplies to all construction, structures, or development, and not only to wastewater systems qua wastewater systems. Section 1-501(a)(1) of the 2007 Wastewater System and Potable Water Supply Rules describes such permissible types of municipal regul ations as those that “are not specifically regulating potable water supplies and/or wastewater systems, but rather regulating development in general,” and mentions setbacks as a specific example of a type of ordinance that regulates development in general. The setback requirements in the Zoning Bylaw regula te development in general. They do not specifically regulate wastewater system s, and do not purport to address the technical standards or criteria for wastewater syst ems or potable water supplies. The state statute and the 2007 Wastewater System and Potable Water Supply Rules did not supersede or preempt the setback requirements of th e Zoning Bylaw applicable to structures, even though they have superseded § 316. 3 as to the technical standards for wastewater systems.12Section 316.3 is entitled “Special Provisions of Septic Systems;” its introductory

phrase states that its provisions apply “[i] in add ition to those dimensional requirements . . . allowed in the designated Shoreline Protectio n Area.”

10 Under Former State Rules As Appellants’ application was filed before the effective date of the 2007 state wastewater rules, Appellants also argue that the pr ior ANR Wastewater System and Potable Water Supply Rules, which contain only a te n-foot roadside setback requirement, preempted the more stringent requirement of the Zon ing Bylaw. Prior to July 1, 2007, under § 316.3 12of the Zoning Bylaw, an applicant could satisfy the municipal requirements for septic systems eithe r by meeting the technical criteria under Option One or, under Option Two, by complying with the technical standards and design requirements in the 2002 ANR Wastewater System and Potable Water Supply Rules. The Town does not contest that the proposed mound waste water system complies with the technical standards and design requirements under O ption Two. Preemption may be applicable “when the local law is a barrier to what the state has required to be done, or allows what the state has s aid must be prohibited.” In re Patch, 140 Vt. 158, 177 (1981). In the present case, nothing i n the local setback requirement allows what the state regulations prohibit, nor is the loc al setback requirement of 25 feet a barrier to compliance with the state’s lesser required setb ack of ten feet. Compare, e.g. , 2005 Rules § 1-503(a) (ten foot isolation distance) with Zonin g Bylaw Table 201 (25 foot setback requirement). Prior to the specific superseding language of 10 V. S.A. § 1976(b), therefore, the state regulations also did not preempt the roadside setba ck requirement of the Zoning Bylaw.11

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellants’ Motion for Summary Judgment is DENIED, and the Town’s Motion for Summary Judgment is GRANTED, as discussed above, as to Questions 1(a), 1(b), and 1(f) of the Statement of Questions. Summary judgment is DENIED as to Question 3 of the Statement of Questions as material facts are in dis pute (see footnote 7, above). A telephone conference has been scheduled (see encl osed notice) to determine what issues remain for trial. Please be prepared to adv ise the Court whether the ZBA had before it a request for a variance from the road setback f or the mound system, and, if so, whether Question 1 or 1(g) brings the merits of such a vari ance before the Court in this appeal.

Done at Berlin, Vermont, this 19 thday of March, 2008.

_________________________________________________ Merideth Wright Environmental Judge