1 STATE OF VERMONT

ENVIRONMENTAL COURT

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Town of Greensboro, Plaintiff }

v. } Docket No. 87

‐ 5

‐ 05 Vtec

Donna Lynn Pellegrini, Defendant }

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In re: Appeal of Pellegrini } Docket No. 157

‐ 8

‐ 05 Vtec

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Decision and Order

In Docket No. 157

‐ 8

‐ 05 Vtec, Appellant Donna Pellegrini appealed from a decision

of the Zoning Board of Adjustment (ZBA) of the Town of Greensboro, denying conditional

use approval for a guest apartment in a storage/workshop/garage building, and denying

a variance for the sideline setback and height of the as

‐ built building. In Docket No. 87

‐ 5

‐

06 Vtec, the Town of Greensboro brought an enforcement action for construction of the

building within the sideline setback and exceeding the allowed height. Defendant

‐

Appellant is represented by Sharon Green, Esq.; the Town of Greensboro is represented by

Sara Davies, Esq.

An evidentiary hearing was held in this matter before Merideth Wright,

Environmental Judge. The parties were given the opportunity to submit written

memoranda and requests for findings. Upon consideration of the evidence and of the

written memoranda and requests for findings filed by the parties, the Court finds and

concludes as follows.

Defendant

‐ Appellant owns a 6.6

‐ acre parcel of land. Based on the parties’ apparent

agreement that the required side setback is 50 feet and the required lot size for a single

‐2 family house is 10 acres, we assume it is in the Rural Lands district. See, Town of

Greensboro Zoning Bylaws (Bylaws), Art. VI. The parcel appears to have been

nonconforming as to lot size in the district at the time of her father’s purchase of it in 1992.

The parcel is approximately 741 feet in depth, from its southeasterly side at 160 Pellegrini

Pike to its northwesterly side bounded by Route 16. Defendant

‐ Appellant’s father, Edward

Pellegrini, had purchased the property in 1992, and had conveyed it to her at some time

after the 1994 zoning permit at issue in this matter (as he is named on the 1994 permit

application and appears to have signed it). The Lamoille River flows across the lot

approximately 200 feet from and roughly parallel to Route 16, dividing the lot; all the

construction at issue in the present cases involves the area southerly of the river, on the

Pellegrini Pike side of the lot. Pellegrini Pike is a private road ending at Defendant

‐

Appellant’s property and serving only three residences.

An existing pond is located approximately in the center of the front portion of the

property, between the house site and Pellegrini Pike. Runoff from the pond flows in a

northerly direction towards the river. The primary building on the property is a single

‐

family house located northwesterly of the pond, approximately 300 feet back from the road,

with access by a gravel driveway running between the westerly side of the pond and the

westerly side line of the property. Northwesterly of the house site, the property slopes

steeply down to the river. A spring and the well serving the house are located northerly

of the house site; this area is generally too wet for siting a building.

There is room on the property between the southeasterly side of the house and the

northwesterly side of the pond for a 32 ʹ x 42 ʹ accessory building, containing a garage,

workshop, and/or guest apartment, to be located in compliance with all the setbacks for the

property, although it would be relatively close to and visible from the primary residence

on the property. There is also room on the property for such a building northerly of the

pond and southerly of the pond. These locations are shown generally on a diagram1 Bylaws, Art. XII. The definition incorporates by reference the state statutory

provisions in the former versions of 24 V.S.A. §4406(4)(D) and 4302(11)(D). The state

statute in effect since July 1, 2004 requires municipalities to allow one accessory dwelling

unit, with the limitations found in 24 V.S.A. §4412(1)(E) and (F).

3 appended to this decision.

In 1994, Edward Pellegrini applied for and received a zoning permit to construct a

30 ʹ x 60 ʹ “garage” building to be used for “storage & work shop,” to be located 100 feet

from one side line and 110 feet from the other, on the southwesterly side of the pond. The

section of the application requiring a drawing of the floor plans showed two floor plans,

one labeled “down” and one labeled “up.” The 1994 application contained a sketched plot

plan, drawn on a copy of the four

‐ lot subdivision plot plan for this property, which also

depicted a distance of 100 feet to the easterly side line, and a distance of 110 feet to the

westerly side line. These measurements, taken together with the thirty

‐ foot width of the

proposed building, accounted for the 240 feet of frontage shown for the lot on the

subdivision plot plan. The sketched plot plan showed the proposed garage building to be

located between the southeasterly side of the pond and the southeasterly boundary of the

property.

At the time of that application and under the current bylaws, the required side line

setback was and is 50 feet, and the building height limitation was and is 35 feet above

average ground level. Bylaws Art. VI, §5(b)(2)(c) and Art. II, §4(d). The minimum lot size

in the Rural Lands district is ten acres. Bylaws Art. VI, §5(b)(1). A single

‐ family dwelling

is a permitted use in the district, Bylaws Art. VI, §§3(b), while ‘accessory apartments’ and

‘guest house’ are conditional uses. Bylaws Art. VI, §(4)(d) and (a). Accessory apartments

(as defined by reference to the former state statute 1 ) are allowed to be located in an

accessory building. Guest houses are allowed to be constructed, without such dwelling

units being considered a second primary dwelling, if they are limited in area to 500 square2 Bylaws Art. XII and Art. II, §3(d). The ZBA seems to have treated the proposed

apartment in the garage building as a ‘guest house’ rather than as an ‘accessory apartment.’

It appears from reading the definitions together that if the main residence were to be

owner

‐ occupied, the apartment could qualify as an accessory apartment but not as a guest

house, as it is not a free

‐ standing building and is not proposed to be used for non

‐ paying

guests for less than 120 days in a year, but is rather proposed to be rented out.

3 The Town alleges and Defendant

‐ Appellant does not contest that the cupola level

has a floor and contains a room, rather than simply letting light into and being open to the

sloped attic level.

4 The definition of the term “Building Height” (Bylaws Art. XII) requires the average

ground elevation to be calculated as the average elevation of the finished grade at the front

of the building, which in the present case is the side of the building facing the gravel drive

and having the three garage doors. Whether measuring the height of the building with the

cupola as it now exists, or measuring the height of the building without the cupola, under

that definition it is supposed to be measured to the average height between the eaves and

the ridge of the roof; however, the measurement to the eaves has not been provided in

evidence so that the building height is merely estimated here.

4 feet (if one story) or to 750 square feet (if two story). 2

The permit stated that it would be void in the event of failing to undertake

construction within one year or to complete construction within two years; nevertheless,

the building was not constructed until approximately 1998. It measures 32 ʹ x 42 ʹ and is

built into the slope of the land, so that it consists of a walk

‐ out basement level, one full floor

level above the basement, an attic level within the slope of the roof, with a dormer,

containing the proposed apartment, and a cupola level surrounded by windows. 3 The

closest corner of the building is located 15.9 feet from the southeasterly side line. The peak

of the cupola roof is 51.1 feet above the top of the building’s concrete slab at the front of the

building, making the building approximately 49 feet high as building height is required to

be measured under the Bylaws. 4 The peak of the attic roof is 37 feet above top of the

building’s concrete slab at the front of the building, making the building height well below5 Both Art. II, §3(d) and the definition of “guest house” in Art. XII of the Bylaws

require the on

‐ site septic system for a guest house to be designed by a certified site

technician. While a state subdivision permit may be used to satisfy that requirement,

5 the 35

‐ foot height limit without the cupola, given the apparent slope of the attic roof.

Accordingly, the removal of the cupola would bring the building into conformance with

the height limit.

The Town asserts that the in

‐ ground septic leach field serving the building is located

at least in part on the neighboring owner’s land. The neighboring owner did not enter an

appearance in the case and did not testify as a witness. From the evidence presented, the

court cannot find that the septic system is located beyond Defendant

‐ Appellant’s property.

If it is, even though it would be a violation of the permit, which shows it to be located

within Defendant

‐ Appellant’s property, as it was not the subject of the 2005 notice of

violation it therefore is not within the scope of the present enforcement action.

At some time by March of 2001, Defendant

‐ Appellant had converted the space in

the attic level and cupola of the building to use as an apartment which was 850 square feet

in area. Although the Bylaws allow an accessory apartment to be created within an

accessory building already approved for other uses, both parties in this case have treated

the application as if it would fall within the 750

‐ square

‐ foot limitation for a two

‐ story guest

house.

On March 21, 2001, the Zoning Administrator issued a notice of violation to

Defendant

‐ Appellant advising her of the following violations: that the creation of the

apartment violated the Article II, §3(d) provisions of the Bylaws for a guest house; that the

apartment exceeded the square footage limitations for a guest house and therefore also

violated the Article II, §3(a) provisions of the Bylaws (restricting lots to no more than one

primary structure); and that the creation of the apartment also violated the conditions of

the 1990 state subdivision permit 5 issued by the Agency of Natural Resources.nothing else in the Zoning Bylaws appears to make a state subdivision permit enforceable

by the Town. No related enforcement case has been filed in this court by the state Agency

of Natural Resources seeking enforcement of that subdivision permit.

6 Defendant

‐ Appellant did not appeal the issuance of this notice of violation and

therefore she cannot contest the existence of the violations stated in that notice. 24 V.S.A.

§4472(d). Rather, she sought to remedy the violation by applying on March 30, 2001 for

conditional use approval for the apartment, described as a “guest house in existing

building.” The use of the existing building was described as a “shop,” and the application

repeated the 100

‐ foot and 110

‐ foot side setback measurements from the initial application

for the building, although it described the size as 32 ʹ x 42 ʹ

, which the parties do not contest

is the as

‐ built footprint of the building.

The ZBA conducted a site visit as well as a hearing in connection with the 2001

conditional use application, and denied the application because the building’s septic

system had never received approval, because the height of the building exceeded the

maximum limits, and because the square footage of the apartment exceeded the limitation

of 750 square feet for a guesthouse of more than one story, taken together with the fact that

the property lacks enough acreage for a second residence. At that time the apartment was

about three

‐ quarters completed and included a full bath. After the application was denied,

Defendant

‐ Appellant stopped improving the building for use as an apartment and the

apartment space has not been used for living purposes. If the apartment is approved,

Defendant

‐ Appellant proposes to rent it out.

Defendant

‐ Appellant did not appeal the 2001 denial to Environmental Court; she

argued to the ZBA in the 2005 hearing that the 2001 application had been withdrawn due

to a possible problem with the septic system for the building.

In late January and early February of 2005, the Zoning Administrator visited the

property to determine whether there were violations of the side setback and of the location6 Article II, §4(d) of the Bylaws allows an applicant to apply for approval of

additional height for a building, but such application must be made both to the ZBA and

to the Planning Commission. Defendant

‐ Appellant never applied to either of those

municipal panels for approval of the excess height under this provision in the Bylaws (as

opposed to applying for it as a variance).

7 of the leach field for the building, based upon information received from the adjoining

property owner. Based on that inspection, the Zoning Administrator issued a new Notice

of Violation on February 15, 2005, asserting the following four violations: that the

apartment had been established in the building without a permit; that the building contains

four floors although the 1994 zoning permit was for only two floors; that the building

exceeds the height limit; and that as constructed it “is located within 25

‐ 30 feet of” the

adjoining property, in violation of the 1994 zoning permit “which provided for a set back

of at least 100 feet” and in violation of the setback requirements of the Zoning Bylaws.

Defendant

‐ Appellant did not appeal the issuance of this notice of violation, and

therefore she cannot contest the existence of the violations stated in that notice. 24 V.S.A.

§4472(d). Rather, she sought to remedy the violation by again applying, on May 19, 2005,

for conditional use approval for the apartment, as well as for a variance. The variance

request makes reference to the “letter dated 2

‐ 15

‐ 05 from [the] Town” and appears to

request variances to allow the so

‐ called guest house to have its actual size of 850 square feet

rather than the 750 square feet referred to in the 2005 Notice of Violation for a two

‐ story

guest house, to allow the “actual” height 6 (stated in the variance application as 41 feet)

rather than the 35

‐ foot maximum height in the Bylaws, and to allow the “actual” side yard

setback (stated in the variance application as 35 feet) rather than the 50

‐ foot minimum

required by the Bylaws. The variance request also asserts that the “garage/apartment has

only two floors

‐ balance of construction is in roof area,” from which it is difficult to

determine whether Defendant

‐ Appellant sought to argue that the building should not be8 considered to be more than two stories, or sought to request a variance from the two

‐ story

limitation asserted by the Town.

The ZBA denied the application for variance on the basis that the application did not

meet any of the required criteria for a variance, without making findings to specify in what

respects the application failed those criteria. The ZBA did not address the conditional use

standards for the apartment other than to state that the ZBA needed to determine whether

there are any facts substantially different from the 2001 application to warrant a subsequent

application.

The accessory building is in violation of its permit and the Bylaws as being closer

to the side property line than the required 50

‐ foot setback.

The accessory building cannot qualify for a variance from the side setback because

there are several areas on the lot on which the building could have been built, or to which

the building could potentially be moved, that would completely comply with the

dimensional requirements of the Bylaws, without being affected by the topography or the

wetness of the lot in the areas closer to the river or behind the house. The accessory

building therefore fails to meet subsections 1 and 2 of 24 V.S.A. §4469(a). Moreover, by

building the building too close to the side line, Defendant

‐ Appellant (or her predecessor)

created the hardship for which she now seeks a variance, in violation of subsection 3 of 24

V.S.A. §4469(a).

Defendant

‐ Appellant is free to cure the violation by any means she chooses,

including by obtaining a permit to move the building or to rebuild it on a complying site

on the property, or by taking it down, or by obtaining additional property to meet the

required sideline setback.

The accessory building also is in violation of its permit and the Bylaws as having a

building height higher than the 35

‐ foot limitation. However, Art. II, §4(d) of the Bylaws9 allows an application to be made to the ZBA and the Planning Commission for approval

of additional height, “providing such an increase will not be disruptive to its surroundings

and providing it does not constitute a hazard.” No such application has been made in the

present case, and therefore the Court does not have such an application to rule on. It is

possible that if the building is moved or rebuilt, or if additional property is acquired to

meet the side setback requirements, that such an application could result in approval of the

additional height of the cupola. The Court would consider waiver of the filing fee if any

such future application were to result in a new appeal.

In its present location, the accessory building cannot qualify for a variance from the

height requirement of the Bylaws because, by building the building to that height,

Defendant

‐ Appellant (or her predecessor) created the hardship for which she now seeks

a variance, in violation of subsection 3 of 24 V.S.A. §4469(a). The height violation could be

cured by removal of the cupola, but it would have no effect on the continuing existence of

the setback violation in that location.

As contrasted with the requirements for building height, nothing in the Zoning

Bylaws limits the number of stories a building may have. The 1994 permit application did

not require the applicant to state the number of stories for the proposed building. Further,

in the sketch plan section, the 1994 permit application did not clearly require the applicant

to provide a floor plan of each story; rather, the form merely required “both upstairs and

downstairs,” that is, two floor plans, “if there is more than one floor.” Therefore the fact

that the building has two

‐ and

‐ a

‐ half stories (or perhaps two

‐ and

‐ three

‐ quarters, depending

on how the cupola and the dormer are counted) does not constitute a violation of the

original permit, or of the Bylaws. Permit conditions, as well as land use regulations, must

be construed by resolving any uncertainty in favor of the property owner. Agency of

Natural Resources v. Weston

, 175 Vt. 573, 577 (Vt. 2003); In re: Appeal of Weeks

, 167 Vt.

551, 555 (Vt. 1998).10 It is possible that, if the building is moved or rebuilt, or if additional property is

acquired to meet the side setback requirements, Defendant

‐ Appellant could qualify for

approval of the apartment. A new application would have to be made for such approval

in its new location, or after the side setback requirements had been met. If the primary

residence on the property is owner

‐ occupied, then the apartment may qualify for approval

as an accessory dwelling unit under 24 V.S.A. §4412(E), if it meets the requirement of not

exceeding 30% of the total habitable floor area of the primary residence, and if there is

adequate sewage disposal for the apartment in its new location or by connecting it to the

system serving the primary residence. If, on the other hand, the apartment is intended to

be used for non

‐ paying guests for no more than 120 days per year, it may qualify for

approval if it meets the septic system requirements of the definition of “Guest house” in

the Bylaws and is reduced in size to the maximum of 750 square feet.

The setback and height violations existed from the construction of the building to

the present. However, the Town did not bring an enforcement action based on the notice

of violation issued in 2001. The applicable statutory section as it then existed was 24 V.S.A.

§4444(a), which allowed a municipality to bring an enforcement action without a new

notice of violation within the twelve months following the issuance of the notice of

violation. Therefore we look at the potential for a penalty dating from March 2, 2005, with

reference to the 2005 notice of violation. To the date of trial, that time period was 420 days.

Because Defendant

‐ Appellant’s costs of coming into compliance will be expensive, no

matter how she may choose to carry it out, it will be sufficient in this matter to impose an

additional penalty of $15.00 per day, for a total of $6,300, to compensate the Town for its

costs of obtaining compliance, including its surveying fees and its attorney’s fees. See,

Town of Hinesburg v.Dunkling

, 167 Vt. 514, 528–29 (1998).11 Based on the foregoing, it is hereby ORDERED and ADJUDGED that the requested

variances are DENIED, and the application for approval of the apartment within the

building in its present location is DENIED, without prejudice. Defendant

‐ Appellant shall

cure the setback violation, in compliance with the following schedule. On or before

February 15, 2007, Defendant

‐ Appellant shall report to the Court in writing the

arrangements she has made to cure the side setback violation, whether by moving the

building to or rebuilding it on a complying site on the property, or by taking it down, or

by obtaining additional property to meet the required sideline setback, or by any other

means. On or before March 1, 2007, Defendant

‐ Appellant shall report to the Court in

writing the arrangements she has made cure the height violation, and shall file any

required applications for approval of the additional height and for approval of any new

location for the building if it is proposed to be moved or rebuilt on the property. If

Defendant

‐ Appellant has failed to make such arrangements by that date, the Town may

apply for an order under V.R.C.P. 70 to have a person appointed to take any necessary

action. In addition, Defendant

‐ Appellant shall pay a penalty of $6,300 as calculated above;

the parties may make their own arrangements or apply to the Court for a schedule of

payments over time.

Dated at Berlin, Vermont, this 7 th day of November, 2006.

______________________________________ Merideth Wright

Environmental Judge