STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Pierre R. Pepin and 

Betty Pepin 

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Docket No. 225-10-02 Vtec

Decision and Order

Appellants Pierre R. Pepin and Betty Pepin appealed from a decision of the Development 

Review Board (DRB) of the Town of Colchester denying them a variance to construct an 

enclosed room within the front setback, below a permitted second-story deck. Appellants 

appeared and represented themselves; the Town of Colchester is represented by Richard C. 

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

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

findings and memoranda of law. Upon consideration of the evidence and the written memoranda 

and proposed findings, the Court finds and concludes as follows.

Appellants own a parcel of property at 2 Goodsell Point in the Commercial zoning district of the 

Town of Colchester, containing two houses. It is non-conforming with the current zoning 

regulations at least in that it has more than one principal structure on the lot, does not meet the 

minimum lot size, and in that Appellants= preexisting house is within the 45-foot front setback, 

measured from the edge of the road right-of-way.

In 1922 when the road was surveyed, the traveled track appears from Exhibit D to have been 

located so that it was not centered within the 22 -rod right-of-way, but ran closer to the far side 

of the right-of-way away from Appellants= property. The current roadway is in the same location. 

If one were to assume that the traveled way is centered on the road right-of-way, it would appear 

that more front yard space is available on Appellants= property between the house and the road 

right-of-way than actually exists. In fact, the corner of the main house structure is located on the 

boundary of the right-of-way, as shown on Exhibit E. 

Appellants= house is constructed with a 6' 3" tall retaining wall in front of and extending toward 

the road from part of the gable end of the house. Access on the side of the house is on the ground 

floor level, but the gable end (which we will refer to as the front) of the house has access by a 

door onto a deck or patio constructed on the higher ground level of the front yard, as supported 

by the retaining wall. That deck or patio has a spindle railing and is 8 feet wide by 12 feet long. 

Because of the location of the road right-of-way, that deck or patio is not only located entirely 

within the front setback area, but it is also located in part within the right-of-way of the road.

In 1995, Appellants obtained approval from the then-ZBA for construction of a deck outside the 

second-floor window on the gable end of their house, above the existing deck. The only 

condition of that zoning permit was that the deck A not encroach any further into the front yard 
setbacks than the existing deck below.@ As constructed, the second-floor deck is 6 feet wide and 

11 feet long; that is, one foot shorter than and two feet narrower than the deck below it.

In the present application, Appellants have applied under ' 1802.1 of the Zoning Regulations to 

create an enclosed room the size of the downstairs deck or patio, with a new shed roof, and to 

leave the upstairs deck above it, but supported on the roof of the new enclosed room rather than 

by posts down to the ground. They propose to equip the new room with an air-conditioner/heater 

unit, and sliding glass doors/windows, so that it could be used in three seasons and not just as a 

screened-in porch. The proposed enclosed room, like both decks, would be located entirely 

within the front setback and would in part encroach into the Town= s right-of-way for the road.

To obtain approval for a non-complying addition or alteration, an application must meet all five 

variance criteria under ' 1802.1. This application fails to meet at least the second, third and 

fourth criteria, as shown on Appellants= own application. They can make a reasonable use of the 

property as a whole without the variance, as the property has two houses and a commercial 

building on it already, all of which are in use. They were aware that the existing deck was in the 

setback area when they purchased the property, as can be seen from their 1995 application for 

the upstairs deck. The variance will impair the potential use or development of the road right-ofway, absent some agreement by Appellants to take down any construction in the road right-ofway when requested by the Town. Because this application does not meet all five of the criteria 

under ' 1802.1, it cannot be approved by the Court, which must apply the ordinance as written.

As we discussed at the trial, Appellants may well be able to obtain approval to simply screen in 

the space below the existing upper-story deck under ' 1802.2, which allows structural alteration 

of a non-complying structure A provided that such action does not increase the degree of or create 

any new non-compliance,@ at least for the portion of that space that is not within the Town= s 

right-of-way for the road. However, no such application is before the Court in this appeal, and 

the Court cannot rule on such a proposal in this proceeding. While such an application does not 

have to go before the DRB initially, the Zoning Administrator would have to determine whether 

any such proposal fell within and met the requirements of ' 1802.2, and Appellants would have 

to appeal any adverse ruling to the DRB before any further appeal would be before the Court. 

Moreover, if Appellants wished to include in that enclosure any portion of the property within 

the road right-of-way, they would have to enter into some agreement with the Town (as a matter 

of the Town= s property rights as the holder of the road right-of-way and not as a matter of 

zoning) regarding the use or future use of the road right-of-way.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants= application 

under ' 1802.1 to construct an enclosed, three-season room on the footprint of their existing deck 

or patio is DENIED, as it fails to meet all five requirements in ' 1802.1. This denial is 

specifically without prejudice to any later application Appellants may wish to make for a smaller 

project or under ' 1802.2.

Dated at Barre, Vermont, this 11th day of August, 2003.
___________________

Merideth Wright 

Environmental Judge