State of Vermont Superior Court—Environmental Division

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In re Smith Boathouse Permit Application, 1 Docket No. 117-8-12 Vtec (Appeal from Leicester ZBA denial of permit applica tion)

Title: Motion for Summary Judgment Filed: September 17, 2012 Filed By: Applicants Jeffrey and Linda Smith
Response filed on 8/12/12 by Appellee Town of Leice ster Reply filed on 11/2/12 by Applicants Mr. & Mrs. Smi th

X Granted (in part) X Denied ( in part) ___ Other

This case concerns an application by Jeffrey and Li nda Smith (“Applicants”) for a permit to build a boathouse on their property at 1134 Hook er Road in the Town of Leicester (“Town”); Applicants propose to locate the boathouse just abo ve the shore of Lake Dunmore. 2 Applicants initially submitted their application to the Town o f Leicester Zoning Administrator (“Administrator”). When the Administrator denied t heir application, Applicants appealed to the Town of Leicester Zoning Board of Adjustment (“ ZBA”). The ZBA upheld the Administrator’s denial in a decision dated August 1 4, 2012. Applicants have appealed the ZBA’s decision to this Court and have moved for sum mary judgment on all five legal issues Applicants raised in their Statement of Questions. Applicants appear pro se. The Town is represented by James F. Carroll, Esq.
As an initial matter, we address the Town’s allegat ion that Applicants filed their motion for summary judgment prematurely, in violation of V .R.C.P. 56. Contrary to the Town’s assertion, the current version of V.R.C.P. 56 does not require that parties wait a minimum of twenty days from the commencement of the action to file a motion for summary judgment. See

1 We have revised the case caption to delete the re ference to “CU,” an acronym for conditional use.

2 Applicants initially applied to construct a boath ouse that would partially encroach into the waters of Lake Dunmore. Their first application, dated Octob er 29, 2009, was approved by the Administrator and became final when no party appealed that approval. The boathouse that Applicants proposed to build would have been 35 feet long, 10 feet in height, an d with a 12 foot wide rear and 12 foot wide front f acing the Lake. See Applicants’ Exhibit A. We understan d from the filings that Applicants did not timely construct that boathouse and the permit expired. I n a second application submitted on June 4, 2012 (t he application now under review), Applicants proposed to build a similarly-sized structure near the shore of the Lake, with a track system that would be used to move their boat from the boathouse to the water. The Administrator denied this second application on June 21, 2012. See Applicants’ Exhibit B. The parties dispute whether Applicants’ curren tly-proposed structure is a “boathouse.” We refer to this structure as a boathouse throughout this Order both for sake of clarity and based on our legal analysis below.In re Smith Boathouse Permit Application, No. 117-8 -12 Vtec (EO on Mot. for Summ. J.) (03-26-13) Pg. 2 of 4.

V.R.C.P. 56(b) (“A party may file a motion for summ ary judgment at any time until 30 days after the close of all discovery . . . .”). Accord ingly, we do not find that Applicants’ motion, which Applicants filed 19 days after the commenceme nt of this action, was premature.
On appeal to this Court, the Applicants raise five legal issues in their Statement of Questions:

1. Did the Zoning Administrator act appropriately when she defined what a boathouse is when there is no definition for a boat house in the by-laws?

2. Since the Zoning Administrator in the year 2009 app roved my application for placement of a boathouse because I met all the requ ired standards, must she approve the same application in 2012 wherein the se cond application has the same location for the structure and meeting all sid e-yard and rear-yard
setbacks?

3. With no definition for a boathouse in the Town of L eicester by-laws, does a boathouse have to have water under it according to Town of Leicester ByLaws?

4. Did the Zoning Administrator act properly when deny ing the permit based upon the fact that a track system is to be used ins tead of trenching the land?

5. Did the Zoning Administrator exceed her authority b y determining that the Appellant’s structure was not a boathouse?
(Applicants’ Statement of Questions at 2, filed Sep t. 6, 2012.)
This Court will grant summary judgment to a moving party (here, Applicants) only if that party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). In ruling on a summary judgment motion, the Court is directed to “ accept as true the [factual] allegations made in opposition to the motion for summary judgme nt,” as long as they are supported by reference to admissible evidence, and to give the n on-moving party (here, the Town) the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c).
Four of Applicants’ five Questions fail to account for the fact that we review this appeal
de novo and not on-the-record. Questions of whether the a dministrator below acted properly falls beyond the scope of this Court’s jurisdiction . See, e.g., Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (“A de novo trial ‘is one where th e case is heard as though no action whatever has been held prior thereto’”) (quoting In re Poole , 136 Vt. 242, 245 (1978)); In re Cote NOV, No. 273-11-06 Vtec, slip op. at 3 (Vt. Envtl. Ct. Aug. 22, 2007) (Durkin, J) (“the scope of this proceeding is limited to a de novo review . . . mea ning that this Court is not charged with examining the propriety of the DRB's actions”). Th us, when considering a zoning permit application in a de novo appeal, we do not consider whether the zoning administrator made an incorrect decision; we hear the evidence anew and d ecide whether the applicants have met their burden of showing that their proposed project confo rms to the applicable ordinance provisions.
We begin our analysis by questioning whether it is proper to entertain Applicants’ Questions 1, 4, and 5. Under Vermont law, “[e]very court has [the] inherent power to determine whether or not it has jurisdiction of the proceedin g before it; it does not matter how theIn re Smith Boathouse Permit Application, No. 117-8 -12 Vtec (EO on Mot. for Summ. J.) (03-26-13) Pg. 3 of 4.

question comes to the court’s attention.” In re G. R. Enters., Inc., No. 27-2-08 Vtec, slip op. at 2 (Vt. Envtl. Ct. May 12, 2008) (Wright, J.) (citing Woodward v. Porter Hospitals, Inc., 125 Vt. 264, 266 (1965)). Applicants’ Questions 1, 4, and 5 all specifically ask the Court to review the prior actions of the Administrator. Such questions are b eyond our subject matter jurisdiction in a de novo appeal. Therefore, we conclude that Applicant s’ Questions 1, 4, and 5 are beyond the scope of our jurisdiction and will not entertain th em in this appeal.
On its face, Applicants’ Question 2 asks whether a prior approval, which expired after Applicants failed to build the proposed structure w ithin the required time period, obligates the Court to approve Applicants’ new application for a boathouse that Applicants claim is located in a similar location. (Applicants’ Statement of Q uestions at 2, filed Sept. 6, 2012.) We see no legal precedent for the proposition that an expired permit binds a reviewing body to grant a future permit, even if the future permit is “simila r” to the expired permit. However, implicit in Applicants’ Question 2 is the underlying question o f whether Applicants’ new permit application should be granted under the Bylaws. Se e In re Remy Subdivision Alteration, No. 21-1-08 Vtec, slip op. at 5 (Vt. Envtl. Ct. Jul. 31 , 2008) (Durkin, J.) (“We are generally limited to deciding issues raised in a Statement of Questions, but we are also empowered to decide issues ‘intrinsic’ to the questions in the Statement of Qu estions.”) (citing In re Jolley Assocs., 2006 VT 132, ¶ 9, 181 Vt. 190, 194). Factual disputes exis t regarding whether the boathouse proposed in Applicants’ new application complies with the Bylaw s, and Applicants have not shown that they are entitled to summary judgment on this Quest ion as a matter of law. Accordingly, we
DENY Applicants summary judgment on their Question 2, an d leave the resolution of that Question for trial.
Finally, we can address Applicants’ Question 3, as it is purely a question of law without reference to any decision below, and its resolution will affect future adjudication of this dispute. Question 3 asks whether, according to the Town of L eicester Zoning Bylaws (“Bylaws”), a structure must have water under it to be defined as a boathouse. When interpreting municipal bylaws, this Court will first look to the language used by the municipality in its bylaws; if that language is clear, our interpretive exercise looks no further. We only look beyond the plain language of a law when that language is unclear or ambiguous, or if applying the ordinary meaning of the language makes the statute or bylaw ineffective or leads to irrational results. See In re Margaret Susan P., 169 Vt. 252, 262 (1999 ); Town of Killington, 172 Vt. 182, 189 (2001).
The word “boathouse” only appears in Section 620 of the Bylaws. Section 620 provides that:
Waterfront lots may have a one-story boathouse chie fly for the purpose of boat storage and one end may extend into the water 16 fe et, if permitted by state statue or regulation. Width of boathouses is not t o exceed twelve feet; height not to exceed ten feet above mean water level.
Bylaws § 620. The plain language of Section 620 in dicates that a boathouse must be used chiefly for the storage of boats, and that a boathouse may extend over the water. Thus, the Bylaw, by its very language, does not require that a portion of a boathouse extend over the water. A structure can still be a boathouse, even when it do es not extend over the water, as long as it meets the other definitional requirements of Bylaws § 620.
This interpretation is supported by Bylaws § 190, w hich instructs that “[e]xcept where specifically defined herein, all words used in thes e regulations shall carry their customaryIn re Smith Boathouse Permit Application, No. 117-8 -12 Vtec (EO on Mot. for Summ. J.) (03-26-13) Pg. 4 of 4.

meanings.” Merriam Webster Dictionary defines a bo athouse as “a building to house and protect boats.” Merriam-Webster Online Dictionary – boathouse, http://www.merriamwebster.com/dictionary/boathouse (last visited Mar. 25, 2013). This definition is mirrored in other dictionaries of common usage and is supported by a plain reading of the very term (“boathouse”) used in Bylaws § 620. In the absence of a more restrictive definition contained in the Bylaws, we are inclined to follow this common d efinition of the term “boathouse” in our effort to determine whether Applicants’ proposed bo athouse conforms to Bylaws § 620.

This Court can find no evidence that a structure is customarily a boathouse only if a portion of it extends over or into the water. Thus we GRANT Applicants summary judgment on their Question 3 and conclude that a structure d oes not have to have water under a portion of it to be regarded as a “boathouse,” as that term is used in the Bylaws. Our conclusion here does not, however, allow for a purported boathouse to avoid the dimensional requirements contained in the Bylaws (i.e., the width of a boath ouse may not “exceed twelve feet; height not to exceed ten feet above mean water level” Bylaws § 620). The record before us is unclear as to whether Applicants’ proposed plans meet both of the se dimensional requirements, as well as other restrictions as to setbacks from boundary lin es and protected wetlands. We therefore reserve the legal issue of whether Applicants’ prop osed boathouse is in full conformance with Bylaws § 620 and any other applicable Bylaw provisi ons for trial, where we will provide all parties with an opportunity to make their relevant evidentiary presentations. 3
Thus, the only legal issues remaining to be decided at trial are Applicants’ Question 2, which we interpret to ask whether Applicants’ new p ermit application should be granted under the Bylaws, along with the Questions posed by Cross -Appellants Linda and William Pitkin and the separate Question posed by Cross-Appellants Har ry Chen and Anne Lezak. We look forward to the parties’ trial presentations.

_________________________________________ March 26, 2013 Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent: ____________ Clerk's Initials: _______ Copies sent to: Appellants Jeffrey and Linda Smith, pro se James F. Carroll, Attorney for the Town of Leic ester Cross-Appellants Harry Chen and Anne Lezak Cross-Appellants Linda Pitkin and William Pitki n

3 It is unclear to the Court how Bylaws § 620 inter acts with Bylaws § 270, which provides a list of th e permitted and conditional uses allowed in the Lake Zoning District.