STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of Allen 

Mulheron

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Docket No. 172-8-00 Vtec

Town of Highgate, Plaintiff, 

v

Allen Mulheron, Defendant.

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Docket No. 217-9-00 Vtec

Decision and Order on Appellant= s Motion for Summary Judgment and Motion to Amend 

Answer

In Docket No. 172-8-00 Vtec, Appellant Allen Mulheron appealed from a decision of the Zoning 

Board of Adjustment (ZBA) of the Town of Highgate, denying his appeal of a notice of 

violation, his request for a stay of enforcement, and his request for a variance from the front 

setback requirements. In Docket No. 217-9-00 Vtec, the Town has filed an enforcement action to 

enforce the front setback requirements. Appellant is represented by Michael S. Gawne, Esq.; the 

Town is represented by David A. Barra, Esq.; Interested persons Lee and Lori Olds and Davey 

and Katherine LaFar, who own Lots 4 and 5 in the so-called Misty Meadows subdivision, have 

entered their appearance and represent themselves. Appellant and the Town have moved for 

summary judgment on Question 1 of the Statement of Questions: the method for measuring the 

front setback.

The following facts are undisputed unless otherwise noted.

Appellant obtained subdivision approval in 1995 for a six-lot subdivision known as Misty 

Meadows. The subdivision is served by a 50-foot-wide right-of-way, ending in a 110.8-footdiameter cul-de-sac providing access from the lots to Carter Hill Road. According to the 

subdivision plan, the right-of-way was to be deeded to the Town. No facts have been presented 

as to whether the right-of-way has been deeded to the Town, and whether it was deeded in fee or 

as an easement interest. The property is in the Agricultural zoning district, in which the 

minimum front setback is 60 feet. 

Appellant owns Lot 6 in the subdivision, which according to the subdivision plan has 234.69 feet 

of frontage on the right-of-way and 23.17 feet of frontage along the curve of the cul-de-sac. 
Appellant constructed or placed a single family home on Lot 6. The Zoning Administrator= s 

measurements are that the house is located 40 feet from the edge of the straight portion of the 

right-of-way, and 53 feet from the traveled portion of the right-of-way.

Appellant argues that the measurement should be made from the edge of the traveled portion of 

the right-of-way, but also contests the Zoning Administrator= s measurement method for locating 

the edge of the right-of-way, arguing that the Zoning Administrator measured outward from the 

centerline of the traveled portion. As, in the present case, a survey was made and recorded in 

connection with the subdivision permit, the measurements should be made using the surveyed 

right-of-way, not an assumed right-of-way location. We expect that the parties will submit an 

agreed copy of the subdivision survey in evidence for the remainder of the merits hearing, and 

that they will be able to locate the as-built location of the house on that survey.

The Zoning Bylaws define > setback= in pertinent part as A [t]he nearest distance between a 

building face and a street line or a property line.@ The Zoning Bylaws define > street= as a road, 

but do not define > street line.= In turn, the Zoning Bylaws define > road= as A including streets or 

right of ways.@

The definition of the term > setback= is used in addressing not only the front setback, but also the 

rear or side setbacks, which must necessarily be measured to the private property line when the 

side or rear of a property does not adjoin a street. Reading the Zoning Bylaws1as a whole, the 

only interpretation of A street line@ that is consistent with establishing a building setback is the 

edge of the street right-of-way. If the setback were to be measured from the edge of the traveled 

way, then the allowed setback on a particular road or street would vary over time, as the road 

was improved or widened. That interpretation would permit the installation of nonconforming 

buildings, contrary to the purposes of zoning.

Accordingly, based on the foregoing, the Town= s Motion for Summary Judgment is GRANTED 

and Appellant= s Motion for Summary Judgment is DENIED: The front setback is measured to 

the edge of the road right-of-way. However, we note that the edge of the road right-of-way is to 

be measured from its surveyed location, and not an assumed location relative to the traveled way. 

Appellant also moved in Docket No. 217-9-00 Vtec to amend his answer to add a defense of A

insubstantial violation.@ That motion does not appear to have been docketed and so was not 

brought to the attention of the Court. It is hereby granted.

We will hold a telephone conference on May 4, 2001, at a time scheduled in the enclosed notice, 

to discuss what remains for the trial on the merits of these matters, and to schedule that trial. If 

the Olds and LaFars wish to participate, they should be available at a single telephone number; 

please advise the Court on or before May 2, 2001 of the number at which you wish to be 

reached.

Done at Barre, Vermont, this 23rd day of April, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 Or at least those portions of the Zoning Bylaws supplied to the Court.