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STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Blood Deck } Docket No. 154-7-07 Vtec (Appeal of Dann) } }

Decision and Order on Motion for Summary Judgment Appellant Joyce Dann appealed from a decision of th e Development Review Board (DRB) of the Town of Colchester regarding a deck on the property of Appellee Ernest Blood. Appellant is represented by Beth A. Danon, E sq.; Appellee is represented by Mark G. Hall, Esq. The Town of Colchester has not entere d an appearance in this matter. The following facts are undisputed unless otherwise not ed. In July of 2006, Appellee purchased the house and 0 .44-acre lot at 1101 Red Rock Road, in the Shoreland overlay zoning district; the underlying zoning district has not been provided to the Court in connection with the presen t motions. Appellant owns the adjoining 0.31-acre residential property to the eas t, at 1097 Red Rock Road. Both lots are located on the southeasterly side of a peninsula o f land that extends southwesterly into Lake Champlain, so that the southeasterly side of ea ch property faces the lake. Both lots slope downwards from the road to a cliff at the edg e of the lake. In connection with home insurance issues, Appellee u ndertook certain construction or repairs involving the existing decks or patios, s tairs, landings, and retaining walls on the slope downward from the house towards the lake. Th e work included the construction of a four-foot-high fence along a forty-foot-long retain ing wall that has an eight-foot drop-off; the rebuilding of four separate short outdoor stair ways; the resurfacing with wood and addition of a three-foot-high railing to an L-shape d existing but deteriorated concrete patiopad (the upper patio-deck) running along the southe asterly (lake) side of the house and2

along a portion of the northeasterly side of the ho use; and the resurfacing with wood and replacement of a rusted metal fence with a three-fo ot-high railing on a 17’ x 15’ existing but deteriorated concrete patio-pad (the lower patio-de ck). The upper patio-deck is connected to the lower patio-deck by a short stairway at the westerly corner of the lower patio-deck, closest to Appellee’s house. The lower patio-deck also serves as a landing for a long set of existing stairs that extend from the lower patio-pa d towards the lake. All the work appears from the sketch plan to have b een located within one hundred

feet of the shoreline, that is, within the shoreline setback applicable to the Shoreland overlay zoning district. The easterly portion of t he lower patio-pad is also located within the minimum required ten-foot side setback establis hed for preexisting lots in § 2.05(J)(1) of the Zoning Regulations, and in fact extends nearly t o Appellant’s property line. Only the lower patio-deck construction is at issue in this a ppeal. Appellant had not been living at her property in th e fall of 2006; she had been living in Woodstock, Vermont and spending the winters in Me xico. Sometime during the late fall but before November 10, 2006, on a visit to her prop erty, Appellant observed a carpenter putting up railings on the lower patio-deck adjacen t to her property line, and that a wooden decking surface had already been installed. She asked the carpenter if Appellee had obtained a building permit for the lower patio- deck and was informed that he had not. The Town of Colchester Director of Zoning and Plann ing, Ms. Brenda Green, serves as the Town’s Zoning Administrator. The Planning a nd Zoning Department also has a Building Inspector, Mr. Gerald Kittle. Appellant’s affidavit states that Appellant “then began calling the Town to determine whether or not a permit was necessary.” Facts are in dispute, or at least have not been provided to the C ourt, as to which person within the Town’s administration received Appellant’s telephon e calls or spoke with Appellant, or what information, if any, was conveyed from or to her before Appellant left Vermont for Mexico on November 10, 2006. Facts are in dispute, o r at least have not been provided to3

the Court, as to what arrangements Appellant made to receive mail related to her Colchester property while she was in Mexico. Howev er, based on the reasoning of this decision with regard to the November 15, 2006 permit , these facts may not be material to the present case. Upon realizing that the total cost of all the repai rs would exceed $2,500 1 , Appellee applied for a permit on November 13, 2006, covering a ll the construction listed above. The application form is entitled “Application for Zonin g and Building Permit,” and has signature lines for both the “Building Inspector or Life Safety Officer” and for the “Zoning Administrator.” Permit #20352 was issued by the Zo ning Administrator on November 15, 2006. It contains the following statement or permi t condition next to the Zoning Administrator’s signature: “[r]eplacement of existi ng – no increase in enroachments to

setbacks.” Appellee received the required large “Z” sign from the Town, and posted the sign on his garage window visible from Red Rock Road for a period in excess of the fifteen days required by 24 V.S.A. §4449(b). The Zoning Administ rator’s affidavit states that the town also complied with 24 V.S.A. §4449(b), which require s posting of the permit in a public

1 Appellee’s affidavit refers to repairs in excess o f $2,500 as triggering the requirement for a zoning permit, however, no such requirement is foun d in the excerpts from the Zoning Regulations provided to the Court in connection wit h the present motions. One of the emails from Appellee to Appellant provided in Exhibi t 1 to Appellant’s affidavit refers to “section 4-25 of the Code” as containing such a req uirement. No section numbered “4-25” appears in the excerpts from the Zoning Regulations . Appellee’s reference to “the Code” may instead be to some other town ordinance trigger ing the requirement for a building permit rather than a zoning permit. Appeals of zon ing permit decisions must be made first to the DRB and then to this Court under 24 V.S.A. C hapter 117; building permits and their appeals are governed by 24 V.S.A. Chapter 83.4

place, and also requires that the permit contain a “ statement 2 of the period of time within which an appeal may be taken . . . .” The time per iod to appeal the issuance of the permit to the DRB expired on November 30, 2006. On December 6, 2006 Appellant e-mailed Appellee reg arding the lower patio-deck, stating that “[i]t is not right that it does not re spect the set back required by zoning,” and that she knew “that there was existing cement but t hat does not mean that a wooden deck can be built with a new wooden railing.” Appellee responded by e-mail that evening that he had obtained a permit the only condition of whic h was that he not “increase the encroachments beyond the existing patio,” and sugges ted that Appellant “call the zoning administrator, Brenda Green, who handled my permit” i f Appellant had any further questions about the law. The following morning, December 7, 2006, Appellant e- mailed Ms. Green, with a copy to Attorney Danon, again agreeing that the pree xisting concrete pad or slab had been located within the setback, but stating that “a subs tantial deck with a railing to my property line . . . should not be considered repairs.” In t hat e-mail, Appellant did not ask to appeal the permit; rather, she stated her preference to “wo rk it out in a reasonable way directly with” Appellee. On December 13, 2006, Appellant wrote an e-mail from Mexico to the Building Inspector, referring to having been in touch with th e Zoning Administrator and laying out the situation, stating that Appellant would call th e Building Inspector on the following day. In that e-mail Appellant did not ask to appeal the permit. That e-mail was treated as a complaint and given to the Building Inspector to in vestigate. On December 14, 2006, the Building Inspector filled o ut a “Request for Action

2 The portions of the permit provided to the Court in connection with this motion do not on their face contain that statement.5

Investigation Report,” after inspecting the property and discussing the matter with Appellee and another neighbor. The report conclude d that the “concrete foundation and concrete decks were existing [and] under new wooden decks with no further

encroachment.” Based on that inspection report, on December 18, 2006 , the Zoning Administrator wrote a letter of determination to Appellant, infor ming her that the Building Inspector had found “that there was an existing concrete patio an d that [Appellee] constructed a wooden

deck with rails over it with no further encroachmen t to the setbacks.” Based on the inspection, the letter stated that the Zoning Admini strator “find[s] that at this time, there is no evidence of any violations of local [o]rdinances .” The letter informed Appellant that she had the right to appeal the determination letter to the DRB within fifteen days of the letter’s

date of December 18, 2006. Also on December 18, 2006 , the Zoning Administrator sent an e-mail to Appellant (at the same e-mail address fro m which Appellant had written on December 6 to the Zoning Administrator), informing her of the determination, that she

should receive the letter of determination “this we ek,” and that she had the right to appeal

the determination letter. Appellant’s affidavit states that she sent the Zoni ng Administrator “an e-mail letting her know that mail will not get to me in Mexico and that she should send her letter to my daughter, Jordan Dann,” but also acknowledges that s he cannot locate this e-mail. The Zoning Administrator also has no electronic or pape r copy of this e-mail. On January 17, 2007, Appellant e-mailed the Zoning Administrator, telling her in full: “I sent my daughter’s address to you, but she has not received a letter. Please send it and I guess you could consider all my emails as a r eply to date.” The Zoning Administrator responded within fifteen minutes as f ollows: “I’m afraid it must have been deleted [as] Spam. Would you kindly send it again? ” On January 25, 2007, Appellant again e-mailed the Zon ing Administrator, stating6

that Appellant’s daughter had just gotten the lette r and had just read it to Appellant.” The January 25, 2007 e-mail stated: “I guess my response s, as I said last time, need[] to constitute an appeal,” and requested that the appeal form be scanned and e-mailed to her. The January 25, 2007 e-mail also stated “[s]ince we have been in touch and the letter was virtually just received, I think it is necessary to consider that I have appealed . . . ,” and essentially asked for the fifteen-day appeal period to be disregarded. The Zoning

Administrator forwarded the series of e-mails to Li sa Riddle, the Development Review Coordinator in the Planning and Zoning Department, and asked her to help Appellant out. Appellant provided an undated and unsigned written appeal statement to the Town by e-mail and sent a paper copy by an unidentified person who was leaving Mexico for the United States. Facts are in dispute as to when eit her the e-mail or the couriered copy was

sent, as no cover e-mail, dated cover letter, or cour ier or mailing receipt has been provided to the Court. The signed “Application for Appeal” form is dated as having been received

on March 30, 2007. Neither the Zoning Administrator, the DRB, or any oth er party to the DRB proceedings challenged the appeal to the DRB as unt imely filed. Rather, it was treated as a timely appeal of the Zoning Administrator’s Decembe r 18, 2006 determination letter, apparently based on the delayed date of the actual receipt by Appellant of that letter. The DRB held its hearing on Appellant’s appeal on J une 13, 2007. The parties have not provided the warning of the June 13, 2007 hearin g, or whether any earlier hearings were warned for this appeal, and have not provided t he minutes of the June 13, 2007 hearing, except as they were excerpted in the June 2 7, 2007 written decision. Both Appellant and Appellee attended the hearing and pro vided testimony and other evidence; other witnesses also testified. On June 27, 2007, t he DRB issued its written decision, finding that the November 15, 2006 permit “was issued in acc ordance with [§ 7.03(C)(5)] of the Zoning Regulations and there is no compelling reaso n to overturn the issuance of the7

permit.” Section 7.03(C)(5) allows as a permitted use, for properties within the Shoreland overlay district, and in accordance with the dimensi onal standards in Table A-2 of the Regulations, the “[e]nlargement of residential struc tures that does not increase the degree

of encroachment within 100 feet of the mean water m ark,” that is, the setback from the

shoreline.” The DRB concluded that “[c]onstruction of a deck an d rails over an existing concrete patio did not increase the encroachment into the se tback.” It is apparent from the findings, as well as from the excepted minutes, that the DRB d id not consider the issue under § 2.12 but only under § 7.03, and also that the provisions of the Zoning Regulations with respect

to fences were not discussed.

The scope of the present appeal is governed by the scope of what was before the DRB. Based on the affidavits of the Zoning Adminis trator and Appellant, both the Town and Appellant performed all the notice and posting that was required by 24 V.S.A. § 4449(b) in relation to the November 15, 2006 issuanc e of the Zoning Permit. No notice or posting of the November 13, 2006 zoning permit appli cation was required, nor is any actual notice to neighboring landowners required by the state statute or by any sections of the Zoning Regulations provided in connection with the pending motions. Compare 24 V.S.A. § 4449(b) with 24 V.S.A. § 4464 (required no tice of development review applications filed with the DRB) and 10 V.S.A. § 6084 (required notice and posting of Act 250 applications). Because no appeal was filed with the DRB from the N ovember 15, 2006 issuance of the Zoning Permit, as of December 1, 2006 the Novemb er 2006 Zoning Permit became final and cannot now be challenged, either directly or ind irectly,24 V.S.A. § 4472(d), even if it

was issued in error or ultra vires . Levy v. Town of St. Albans Zoning Bd. of Adjustm ent , 152 Vt. 139, 143 (1989); In re Ashline , 2003 VT 30, ¶¶ 10–11, 175 Vt. 203, 207–08; In re8

Appeal of Smith , Docket No. 263-12-02 Vtec, slip op. at 3 (Vt. Envtl . Ct. Apr. 14, 2003), aff’d 2006 VT 33, 179 Vt. 636 (mem.) (appeal of zoning per mit was out of time, DRB did address appeal of zoning administrator’s letter declining t o take enforcement action). All of Appellant’s e-mails were sent after December 1, 2006 , after the time for appeal had already expired. Moreover, none of them contained a request to file a late appeal, until the January 25, 2007 e-mails requesting to appeal the December 1 8, 2006 determination letter. On the other hand, Appellant’s appeal of the Zoning Administrator’s December 18, 2006 determination letter was treated as timely by the DRB, apparently based on the date of Appellant’s actual notice of it on January 25, 2007 and e-mail request to appeal it on January 27, 2006. No one contested its timeliness b efore the DRB, and the Court will treat it as having been timely filed with the DRB. Material facts are in dispute, or at least have not been provided to the Court in the context of the present motions, as to the height of the former lower concrete patio-pad and the height and location of its former metal fencing , as compared to the volume of the setback area occupied by the new lower patio-deck. Nor does the Court have before it all of the Zoning Regulations relating to fences (as fe nces installed at the property boundaries must by definition be within the side setbacks); th e Court has a portion of § 2.10 found on page 14 of the Zoning Regulations, but the section b egins on an earlier page not provided in the parties’ excerpts. Based only on the sectio ns provided by the parties, it appears that a fence under six feet in height requires a permit, while a fence over six feet in height requires conditional use approval and must meet the accessory structure setback requirements for the zoning district, suggesting tha t a fence under six feet in height does not have to meet the accessory structure setbacks. § 2.10(B)(4)–(6). Moreover, we note that in general zoning regulations do not restrict landowners from using the full extent of their property within the setbacks, that is, up to their boundary lines, for permitted uses in the district. The rest rictions in the Zoning Regulations govern9

the construction or maintenance of structures withi n the district. That is, Appellee would have been free to use the area of the lower patio-p ad to carry on residential accessory uses, such as outdoor seating, in the area occupied by the lower patio-deck, regardless of the

new construction. Therefore, the only nonconformity at issue in the pr esent case relates to structures within the side setback. The only remaining questi ons in the present case are whether Appellee has enlarged the nonconforming structure w ithin the side setback area so as to trigger § 2.12(B), and whether or not the fence or r ailing is otherwise allowed to be constructed within the setback area within the prop erty boundary. If § 2.12(B) applies and if the fence or railing is not otherwise authorized , then the Zoning Administrator’s

December 18, 2007 determination letter was incorrect , and the lower patio-deck

construction should have been referred for a varian ce as an enlargement of the nonconforming structure, leaving the status of the l ower patio-deck as a nonconforming structure approved by error of the zoning administr ator. 24 V.S.A. § 4303(14); Regulations § 12.02, “Nonconforming Structure.” As the lower pa tio-deck is allowed to remain in place due to the unappealed November 2006 Zoning Permit, i t is not clear to the Court whether the parties wish to pursue this remaining issue reg arding the Zoning Administrator’s

December 18, 2006 determination letter. We have sch eduled a telephone conference at which the parties should be prepared to discuss how they wish to proceed.

Accordingly, based on the foregoing, it is hereby ORD ERED and ADJUDGED that Summary Judgment is Granted to Appellee in that the zoning permit became final without appeal as of December 1, 2006, and could not thereaft er be challenged.

However, as discussed above, material facts are in di spute, or at least have not been provided to the Court, as to the Zoning Administrat or’s December 18, 2006 determination letter. The Zoning Regulations applicable to fen ces or railings within the setback have not10

been provided to the Court. Material facts are in dispute as to whether the new decking or railings of the lower patio-deck occupy any more of the setback area than did the previous fence and the existing concrete patio, and therefore whether the application should have been referred to the DRB. Accordingly summary judg ment is DENIED as to Question 2 of the statement of questions.

A telephone conference has been scheduled (see encl osed notice) to determine whether the parties wish to proceed with the remain der of the appeal, as a practical matter, in light of today’s decision. A courtesy copy of t his decision is also being sent to the attorney for the Town of Colchester so that the Tow n may determine whether it wishes to participate in the scheduled conference, given the i ssues discussed in this decision.

Done at Berlin, Vermont, this 31 st day of July, 2008.

_________________________________________________ Merideth Wright Environmental Judge