1

STATE OF VERMONT 

ENVIRONMENTAL COURT 

 } 

In re Clyde’s Place LLC } Docket No. 142-7-07 Vtec 

 (Barry, et al. Notice of Violation) } 

 } 

 } 

In re Clyde’s Place LLC } Docket No. 9-1-08 Vtec 

 (Permit Application) } 

 } 

Decision and Order

In Docket No. 142-7-07 Vtec, Appellant Clyde’s Place LLC appealed from a 

decision of the Development Review Board (DRB) of the Town of Orwell upholding a 

Notice of Violation issued to its predecessors in interest. In Docket No. 9-1-08 Vtec, 

Appellant Clyde’s Place LLC appealed from a decision of the DRB denying alternative 

applications for approval either under the nonconforming structure regulations or 

through a variance. A third related case, Town of Orwell v. Clyde’s Place LLC and 

Barry, No. 17-1-08 Vtec, was placed on inactive status pending the outcome of the two 

above-captioned cases. Appellant is represented by Karl W. Neuse, Esq. and Benjamin 

W. Putnam, Esq.; the Town of Orwell is represented by Mark F. Werle, Esq. and 

Gregory J. Boulbol, Esq. 

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

Environmental Judge, who took a site visit alone, by agreement of the parties, in the 

week prior to the trial. The parties were given the opportunity to submit written 

memoranda and requests for findings, and extended the time for these filings by 

agreement. Upon consideration of the evidence as illustrated by the site visit, and of the 

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

concludes as follows. 
2

The property at issue in these cases (the Clyde’s Place property) is a half-acre lot 

located on the shore of Lake Champlain in the Town of Orwell. It was located in the 

Rural Residential zoning district under the 1995 Zoning Bylaws (1995 Bylaws).1

 It is 

located in the Rural zoning district and in the Shoreland and Flood Hazard overlay 

zoning districts under the 2007 Land Use Regulations (2007 Regulations). Although it 

has the address of 420 Mount Independence Road, it has no frontage actually on Mount 

Independence Road, but instead is accessed by a small private lane or driveway from 

the public road. The property is approximately 240 feet in length along the shoreline of 

the lake and approximately 87 feet in width. The property slopes steeply down towards 

the lake from the east to the west. The traveled way of the small private lane extends 

from north to south across the property near its easterly boundary. The private lane 

provides access to another property with an existing house also owned by members of 

the Barry family.2 

The Clyde’s Place property formerly belonged to Clyde and Anna Blossom. It 

was acquired by Edward and Laura Barry in 1971 during their ownership of the 

adjacent parcel, but after the adoption of zoning in Orwell.3 

 

1

 The 1995 Bylaws replaced a 1986 zoning ordinance. 1995 Bylaws § 125. Neither the 

1986 ordinance nor any earlier zoning ordinance has been provided to the Court in 

connection with these appeals. 

2

 No plan or property survey was provided in evidence depicting the adjacent Barry 

parcel or the location of its house, or whether it has frontage on a public road. 

3

 No evidence was presented suggesting what the lot size or setback requirements were 

in the zoning ordinance at that time, nor whether anything in that ordinance required 

merger of undersized lots. See, e.g., Appeal of Weeks, 167 Vt. 551, 555 (1998) 

(explaining that under 24 V.S.A. § 4406(1) merger is not automatically triggered when 

and if an existing undersized lot is brought into common ownership with an adjoining 

parcel after the effective date of the ordinance, absent language in the zoning ordinance 

providing to the contrary). Accordingly, the Clyde’s Place property has been treated as 

a separate, existing small lot, even though at the time of the 2006 permit application 
3

As of the Barrys’ acquisition of the Clyde’s Place property in 1971, the property 

contained an existing house, measuring 21’ x 21’ for the foundation and the enclosed 

portion of the structure, and having an additional eight-foot-wide open deck extending 

along the west side of the house at the base of the lake side story. Due to the slope of 

the land, the existing deck was supported on posts. A stairway extended down to the 

lake shore farther west than the deck. The west edge of the deck extended to 12 feet 

from the lake shore. The existing house had side setbacks of approximately 157 feet to 

the north, 59 feet to the south, and 39 feet to the east. 

The existing house had been constructed in the 1940s, well before the adoption of 

zoning in Orwell. Because of the slope of the land, the existing house extended one full 

story plus an attic (11⁄2 stories) above the surface of the ground on the easterly side of 

the structure, but extended 21⁄2 stories above the surface of the ground on the westerly 

(lake) side of the structure. 

Under the definition of the term “building front line,” for a lot fronting on public 

waters but not on a public road, the building front line is the line parallel to the mean 

water line transecting the closest point of the building to the mean water line. 1995 

Bylaws § 130. Therefore, under the 1995 Bylaws, the existing house on the Clyde’s Place 

property was nonconforming as to its front yard setback, as the entire property was 

located within the front yard setback of 100 feet for Rural Residential districts. 1995 

Bylaws § 1202(C). Section 414 of the 1995 Bylaws required that the entire setback area 

“shall be open from grade level to the sky unobstructed,” except for up to two feet of 

projection of features such as eaves. The minimum lot area for residential uses in the 

Rural Residential district was 5 acres, so that the Clyde’s Place property was also 

nonconforming as to its lot size. 1995 Bylaws § 1202(C). 

 

both the application and Zoning Administrator Payne’s memorandum to the Planning 

Commission refer to it as a “guest house” or as a second camp on the (combined) “Barry 

property.” 
4

From their acquisition of the property in 1971 through 2005, the Barry family 

used the existing house on the Clyde’s Place property as a vacation house and fishing 

camp for family members and their guests, primarily in the summers but also at other 

times of the year. After the death of Laura Barry in April of 2006, the property passed 

to Patrick E. Barry (Sr.), Rae Anne Barry, Edna D’Oliva, and Laurette Whittle, the four 

children of Edward and Laura Barry. The family had been considering replacing the 

deteriorating existing house on the property for some years, and decided in April or 

May of 2006 to proceed to do so. The four siblings later conveyed the property to the 

members of the family who planned to build the replacement house and to be the 

primary users of it: the six members of Clyde’s Place LLC.4 

Rae Anne Barry and her partner Sharon Thompson live in Orwell near the 

Clyde’s Place property. They were the family members who initially contacted Town 

officials to discuss the zoning requirements for replacing the existing house under the 

1995 Bylaws then in place. In May 2006, Ms. Barry was the trustee of the Laura R. Barry 

Revocable Trust, which still owned the Clyde’s Place property. Ms. Barry and Ms. 

Thompson met at the property with interim Zoning Administrator Edward Payne in the 

first half of May 2006, prior to Mr. Payne’s writing to the Orwell Planning Commission 

on May 16, 2006, about information he had understood from that meeting. Ms. Barry 

was present on the site and involved in the conversation with Ms. Thompson and Mr. 

Payne. 

 

4

 The six members of Clyde’s Place LLC are Patrick E. Barry and his wife Kathleen 

Barry; their son Patrick J. Barry and his wife Grace Barry; and their daughter Margaret 

Toth and her husband Steven Toth. To avoid confusion, if it is necessary to distinguish 

between Patrick E. Barry and his son, Patrick J. Barry, they will be referred to as Patrick 

Barry (Sr.) and Patrick Barry (Jr.), respectively. The four siblings conveyed the property 

to Clyde’s Place LLC in November 2006, although the deed appears to have been 

recorded on March 1, 2007, at Book 76, Page 400 of the Land Records. 
5

Mr. Payne had been the “interim” Zoning Administrator for approximately four 

years, although his services as Zoning Administrator were terminated shortly after the 

site visit, at the end of May or in very early June of 2006. At the site visit, Mr. Payne, 

Ms. Barry, and Ms. Thompson walked down to the then-existing house to look at its 

dimensions and condition. Mr. Payne recognized that the structure was “in rough 

shape” and thought that it would be impractical to rehabilitate. They discussed in a 

very preliminary way a number of possibilities for replacing the structure, including 

uses of an overhanging porch or a chalet-style roof, and the possibility of moving it 

back from the lake. 

Mr. Payne observed the enclosed area of the structure and advised them that the 

existing building could be replaced “in the same footprint” or could be placed farther 

from the lake. Ms. Thompson asked whether the structure could have overhanging 

features such as decks around the house, or a roof overhang; Mr. Payne responded that 

“he didn’t see any reason why that would be a problem.” It is evident from Mr. Payne’s 

testimony that at the time he did not have in mind that any enclosed portion of the new 

structure would be supported by overhanging beams, but only thought in terms of 

open features such as decks, balconies, or a chalet-type roof. However, he did not 

specifically communicate his idea of what he had in mind by the term footprint. By his 

encouraging them to replace the structure farther from the lake, and by his statement to 

the Planning Commission that such a move would make the structure more complying, 

it is evident that he only considered the property’s noncompliance with the 1995 Bylaws 

to be the distance from the structure west to the lake; he did not consider the property 

to be noncompliant in that it occupied a certain amount of the required front setback in 

violation of § 414 of the 1995 Bylaws. Mr. Payne told Ms. Barry and Ms. Thompson that 

they should file an application when they decided what they wanted to do regarding 

the Clyde’s Place property. 
6

Article VII of the 1995 Bylaws allowed noncomplying structures to be 

maintained and repaired “provided that such action does not increase the degree of 

non-compliance,” but did not allow them to be “moved, extended, or enlarged” unless 

the then-Zoning Board of Adjustment (ZBA) made certain findings, including that the 

proposal “is in conformity with the area, yard, coverage, height, and general [b]ylaws of 

the applicable district.” Article VII allowed the ZBA to hold hearings and “attach 

conditions as deemed necessary.” 

During the May meeting with Mr. Payne, Ms. Thompson drew a simple sketch 

plan of the proposed project. It was not drawn to scale, and did not show any property 

lines or the dimensions of the Clyde’s Place property or the setbacks of the existing 

Clyde’s Place house. It also did not correctly show the relationship of the Clyde’s Place 

house to the “private lane,” putting it on the same side of the lane as the main Barry 

house, rather than on the opposite side of the lane, between the lane and the lake. It did 

not show the location of the lake. It showed the Barry house and three other neighbors’ 

houses. On the sketch, an arrow pointed from text on the sketch to the square on the 

plan depicting the location of the Clyde’s Place house. The text stated in full: 

21 x 21 footprint 

to be used– 

dug foundation 

2 stories—existing plumbing & sewage 

Mr. Payne did not at that time request any more detailed plans or state that any more 

information would be required with an application. No signed permit application was 

filed as dated from that May 2006 site visit. 

On May 16, 2006, Mr. Payne inquired as follows regarding the Clyde’s Place 

property in a memorandum to the then-Planning Commission: 
7

Laura Barry property has two camps.[5] They want to replace the small 

white camp on the lakeside. They propose to move back from the lake a 

few feet. . . . As this would be more compliant it would not require a 

variance under the existing regulations but in consideration of the new 

lake zoning should this come before the board?[6

] 

In late May, shortly after this meeting, Mr. Payne’s service as interim Zoning 

Administrator was terminated; he was replaced by Tina L. Blyther. Ms. Blyther served 

as Zoning Administrator only from late May into the month of June 2006. By some time 

in July she had unexpectedly left the area.7

 

While serving as Zoning Administrator, Ms. Blyther contacted Ms. Thompson to 

discuss the permit application. Ms. Barry, Ms. Thompson, and Ms. Blyther met at the 

property on June 5, 2006. Ms. Blyther brought the sketch plan previously done by Ms. 

Thompson and an application form to the property. Ms. Thompson filled out the first 

page of the application, and Ms. Barry signed it. During the visit, Ms. Blyther measured 

the existing house, and measured the distance from the house to all four of the property 

lines. Ms. Blyther took notes, but neither her notes nor her measurements were 

presented in evidence. Ms. Blyther stated that there was “plenty of room” to the north 

and south, and room to move the building approximately eight feet to the east, as had 

 

5

 Both Mr. Payne’s description and the June 2006 zoning permit application form filed 

by Rae Ann Barry and Patrick Barry (Sr.), which stated that the present use of the 

property was “unused dwelling on Barry property,” and that the proposed use was for 

a “guest house [or housing] on Barry property” suggested that the adjoining Barry and 

Clyde’s Place properties were being considered as a single property with two existing 

dwellings. This Court’s November 14, 2008 partial summary judgment decision in 

Docket No. 9-1-08 Vtec also reflects this understanding. However, at trial both parties 

treated the properties as separate and not having merged. 

6

 The Land Use Regulations adopted on March 6, 2007 (2007 Regulations), evidently 

had not been proposed for public comment as of this time; if they had been, the 

proposal should have been considered under the proposed 2007 Regulations. 24 V.S.A. 

§ 4449(d). 

7

 Ms. Blyther could not be located by either party during trial preparation, and did not 

testify at trial. 
8

been discussed with Mr. Payne. By her statement regarding the room available on the 

site to the north, south, and east of the existing house, and by discussing the continued 

possibility of placing the new structure farther from the lake, it is evident Ms. Blyther 

also only considered the property’s noncompliance with the 1995 Bylaws to be the 

distance from the structure west to the lake, and did not consider the property to be 

noncompliant in that it occupied a certain amount of the required front setback in 

violation of § 414. 

During the site visit, Ms. Blyther noticed that the square representing the Clyde’s 

Place house on the sketch plan was on the wrong side of the private lane; either she or 

Ms. Thompson drew a square on the other side of the lane, crossed out the first square, 

and extended the arrow from the text to the new square. The notation “[t]his project 

has been toured by & discussed [with] Edward Payne” also appears on the sketch plan. 

The zoning permit application stated as landowners both Rae Anne Barry and 

Patrick Barry (Sr.), and was signed by Rae Anne Barry dated June 6, 2006. Nevertheless, 

it was noted by Ms. Blyther as having been received on June 5, 2006, and was signed as 

issued by her also on June 5, 2006. The proposed use is checked off as “new 

construction” with the handwritten notation “over existing footprint.” The line for 

“present use” is filled in as “unused dwelling on Barry property.” The line for “exact 

proposed use” is filled in as “guest housing on Barry property.” Above the signature 

line the form states that “[w]hen signing this application, you are certifying that the 

information you are submitting is correct to the best of your knowledge.”8

 The sketch 

plan was attached to the application form. The second page of the form, constituting 

the permit, was signed by Ms. Blyther on June 5, 2006, and stated that it “becomes your 

 

8

 Neither the form nor the 1995 Bylaws contained any provision voiding the permit in 

the event of misrepresentation. 
9

permit on June 20, 2006 if there is no appeal.”9 No party appealed the permit, which 

became final on June 20, 2006. See 24 V.S.A. § 4472(d). 

As submitted, the permit application failed to meet the minimum requirements 

of § 320 of the 1995 Bylaws, in that it was not drawn to scale and did not indicate the 

“shape, size, height and location in exact relation to all property lines and to street, road 

and/or mean water lines” of either the existing structure or the proposed new (or 

altered, extended, or moved) structure. Because of these deficiencies, it should have 

been ruled to be incomplete. If the required items had been provided, the discrepancy 

between the Clyde’s Place LLC members’ understanding of what was allowed by the 

permit, and the actual requirements of the 1995 Bylaws, could have been realized and 

corrected before commencement of construction. 

In any event, because it was a change to or replacement of an existing 

nonconforming structure, the application should have been referred to the then-ZBA 

under Article VII of the 1995 Bylaws, rather than having been acted on by the Zoning 

Administrator. 

However, because the permit was issued and became final, Appellant was 

entitled to construct what was authorized by the permit, with any ambiguity in 

interpretation being resolved in favor of the landowner. See In re: Anne C. Rose 

Revocable Trust Building permit, No. 290-12-07 Vtec, slip op. at 8 (Vt. Envtl. Ct. Sept. 

30, 2008) (Wright, J.) (“Zoning permits, like zoning regulations, must be construed by 

resolving any ambiguity in favor of the landowner.”) (citing ANR v. Weston, 2003 VT 

58, ¶ 16, 175 Vt. 573 (mem.)); see also, e.g., Weeks, 167 Vt. at 555 (“[I]n construing land 

use regulations any uncertainty must be decided in favor of the property owner.”) 

(citing In re Vitale, 151 Vt. 580, 584 (1989)). 

 

9

 An associated “Memorandum of Municipal Action,” referring to the action as a 

“Building Permit,” was also signed by Ms. Blyther as Zoning Administrator on June 5, 

2006, and was recorded by the Assistant Town Clerk in the land records on June 6, 2006. 
10

The permit approved the project as described in the application, including the 

text on the sketch plan. It required the new construction to be placed “over” the 

existing 21’ x 21’ “footprint.” It required a dug foundation, that the project would 

consist of 2 stories, and that it would use the “existing plumbing and sewage” disposal 

systems serving the existing house. The terms “over” and “footprint” in the permit 

were ambiguous, as the term “footprint” was not then defined in the 1995 Bylaws, and 

the permit did not refer to the then-existing foundation or walls of the existing house.10

Shortly after the permit was issued, Ms. Thompson and Ms. Barry relayed their 

understanding of its requirements to Patrick Barry (Sr.), Patrick Barry (Jr.), and 

Margaret Toth, the members of Clyde’s Place LLC who were thereafter actively 

involved in the design and construction arrangements for the project. Based on their 

understanding that the permit only required the new house to be built “over” the 

existing 21’ x 21’ “footprint,” they began conceptual designs of a house that had a 

superstructure larger than the original 21’ x 21’ foundation, with the upper floors 

supported above the surface of the ground by posts or by cantilevered beams. 

Zoning Administrator Roland (Ted) Simmons started work on an interim basis in 

July of 2006, due to the departure of Ms. Blyther. At that time, Mr. Simmons did not 

 

10 Even if the Court were to take judicial notice of the common use of the term 

“footprint” in the zoning context to refer to the projection of the building onto the 

ground surface, it would not affect this analysis, as the term is not used in the 1995 

Bylaws and there was no evidence of a meeting of the minds as to the term during any 

of these conversations. In any event, permit conditions do not include the oral 

representations of the applicant or the zoning administrator, even if made during a 

hearing. See In re: Anne C. Rose, No. 290-12-07 Vtec, slip op. at 10 (stating that “an oral 

representation at a hearing is not binding on an applicant unless it is translated into an 

unambiguous condition of a written ZBA decision”) (citing In re Kostenblatt, 161 Vt. 

292, 298–99 (1994)). 
11

review recently-issued permits to determine whether he should become familiar with 

any pending projects or whether any projects required his inspection.

Margaret Toth, one of the members of Clyde’s Place LLC, telephoned the Town 

Clerk in early September of 2006 to discuss the proposed project with Mr. Payne or Ms. 

Blyther. She was referred to Mr. Simmons and was given his home number to call. She 

told Mr. Simmons who she was and that the family had been issued a zoning permit 

and was in the process of designing the house. She explained that the house was 

limited to a 21’ x 21’ footprint, and asked whether having the upper floors supported by 

posts would be viewed as increasing the “footprint.” Mr. Simmons advised her that the 

use of posts to support upper floors or decks would increase the footprint, but that 

decks or balconies extending outward without being supported on the ground would 

not increase the footprint.11 Ms. Toth did not suggest, and Mr. Simmons did not have 

in mind in his response, the possibility that the ground floor of a new house would be 

designed to extend out from the foundation on beams located within a few feet of the 

ground. 

Ms. Toth had a second conversation with Mr. Simmons, in October 2006, during 

which she asked a question regarding the high water mark, unrelated to the issues in 

the present cases, but during which she reiterated that the project had a permit and was 

in the design process. 

Working with a design professional, Clyde’s Place LLC had a cantilevered design 

prepared that extended the house substantially beyond its preexisting dimensions, by 

seven feet to the north and south, and three feet to the east. The existing house and 

foundation were demolished in October of 2006, and ground was broken for the new 

 

11 Issues of whether it was reasonable for Clyde’s Place LLC to expend large sums of 

money towards constructing this project, based upon oral representations of the 

permittees and of the zoning administrators, and based on a rough sketch plan 

incorporated in the permit, may be raised in the enforcement case; they are not relevant 

to either appeal resolved by this decision. 
12

foundation in late November of 2006. The final architectural plans for the project were 

completed at the end of November of 2006. The footings were poured towards the end 

of December of 2006.12 Mr. Simmons did not visit the construction site and did not 

examine the Clyde’s Place zoning permit until late March of 2007. Mr. Simmons issued 

the Notice of Violation that is the subject of Docket No. 142-7-07 on April 23, 2007, 

alleging a violation of § 414 of the 1995 Bylaws, regulating “projection into required 

yards.” 

As constructed, the foundation supporting the steel beams on which the house is 

cantilevered is several inches larger than original 21’ x 21’ foundation. In addition, two 

so-called retaining walls extend beyond the 21’ x 21’ foundation, to the north and to the 

south, but are not load bearing. These retaining walls are not yet completely covered by 

earth, but the project plans call for them to be covered by earth. No evidence was 

presented as to whether the so-called retaining walls serve a function underground to 

balance the cantilevered upper portion of the new house. 

As stated above, the enclosed volume of the new house extends outward above 

the ground beyond the 21’ x 21’ foundation for seven additional feet to the north, three 

additional feet to the east, and seven additional feet to the south, making the size of the 

structure 24’ x 35’, above a walk-out basement level of 21’ x 21’. The deck on the west 

side of the house extends across the entire west side of the house, but extends one foot 

less towards the lake than did the former deck. 

 

12 Section 360 of the 1995 Bylaws, dealing with certificates of occupancy, requires the 

Zoning Administrator (Administrative Officer) to “inspect the site at the time the 

footings are in place and again when the structure is completed . . . before issuing a 

Certificate of Occupancy.” While this section does not require a permittee to notify the 

Zoning Administrator prior to pouring the footings, a landowner’s failure to do so may 

may make it more difficult to obtain a Certificate of Occupancy. 
13

Site work for the project has resulted in changes to the original steep slope of the 

land. However, due to the current remaining slope of the land, the as-built house 

extends one full story plus an attic with dormers (11⁄2 stories) above the surface of the 

ground on the easterly side of the structure, and extends 21⁄2 stories above the surface of 

the ground on the westerly (lake) side of the structure, as did the former house. The asbuilt house contains a greater volume and is taller than was the house, but it remains 

less than 35’ in height. 

The 2007 Regulations, adopted on March 6, 2007, created a Shoreland Overlay 

District with a minimum required setback from Lake Champlain of 75 feet, and also 

reduced the minimum front yard setback for residential lots in the Rural District to 75 

feet. 2007 Regulations §§ 2.10, 2.5(D)(6). Section 2.5(D) also established a maximum lot 

coverage requirement of 5 percent, and reduced the minimum lot size from 5 acres to 2 

acres. 2007 Regulations §§ 2.5(D)(10), (1). 

Article VII of the 1995 Bylaws allowed non-complying structures to be 

maintained and repaired “provided that such action does not increase the degree of 

non-compliance,” but did not allow them to be “moved, extended, or enlarged” unless 

the then-Zoning Board of Adjustment (ZBA) made certain findings, including that the 

proposal “is in conformity with the area, yard, coverage, height, and general [b]ylaws of 

the applicable district.” Article VII allowed the ZBA to hold hearings and “attach 

conditions as deemed necessary.” 

The Environmental Court appeal of the Notice of Violation, Docket No. 142-7-07 

Vtec, was held in abeyance for a time, to allow Appellants to apply to the DRB for 

consideration of the project under the 2007 Regulations, which had for the first time 

added a waiver provision, § 3.6 of the 2007 Regulations, as authorized by the statutory 

changes enacted in 2004. See 24 V.S.A. § 4414(8). 

However, Patrick Barry (Sr.) submitted a permit application dated August 15, 

2007, under a cover letter dated September 11, 2007, requesting approval of the new 
14

house as a replacement of the previous noncomplying structure. Appellant’s Exh. 21. 

As initially filed, the application only requested that the DRB consider the application 

under Article VII of the 1995 Bylaws, on the basis that Zoning Administrator Blyther 

should have referred it to the then-ZBA for such consideration in June of 2006. 

A month after a telephone conference held with the Court in Docket No. 142-7-

07, on September 27, 2007, Appellant’s attorney sent a letter to the Town’s attorney 

requesting that the pending application be amended to add a request for a variance 

under § 3.7 of the 2007 Regulations, and to consider the request for approval of the new 

house as a replacement to a nonconforming structure both under the 1995 Bylaws and 

under § 4.12 of the 2007 Regulations. Appellant’s Exh. 22. No request for a waiver 

under § 3.6 of the 2007 Regulations was ever made to or ruled on by the DRB. 

Section 414 of the 1995 Bylaws—Notice of Violation

Under the 1995 Bylaws, the existing house was nonconforming with regard to 

the front yard setback. In fact, as the property is only approximately 87 feet wide, the 

entire property, including the entire existing house, was located within the front yard 

setback of 100 feet. 1995 Bylaws § 1202(C). Section 414 of the 1995 Bylaws, governing 

“Projection in Yards,” required that “[e]very part of a required yard shall be open from 

grade level to the sky unobstructed,” except for up to two feet of “the ordinary 

projections of sills, cornices, pilasters, chimneys and eaves.” 

Article VII of the 1995 Bylaws allowed noncomplying structures to be 

maintained and repaired “provided that such action does not increase the degree of 

non-compliance,” but did not allow such structures to be “moved, extended, or 

enlarged” unless the then-ZBA made certain findings, including that the proposal “is in 

conformity with the area, yard, coverage, height, and general [b]ylaws of the applicable 

district.” 
15

As the Appellant’s project involved enlarging the structure rather than only 

maintaining and repairing it, the “degree of non-compliance” issue is inapplicable, and 

the application should have been forwarded for consideration by the ZBA under Article 

VII, ¶ 4, or for a variance under Article V. In any event, the noncompliance at issue in 

this case is the fact that the existing house was occupying a portion of the required front 

yard setback that is otherwise required by § 414 to be left open from grade level to the 

sky. The degree of nonconformity was enlarged by the new house, which had a larger 

volume of structure occupying the required front yard setback, even though it was 

located one foot farther from the lake. In re: Rouleau Property Appeals, Nos. 231-12-04 

Vtec, 28-2-05 Vtec, 29-2-05 Vtec, 192-9-05 Vtec, & 193-9-05 Vtec, slip op. at 6–7 (Vt. Envtl. 

Ct. Nov. 17, 2006) (Wright, J.) (holding that moving a nonconforming structure within a 

required setback, to occupy an area that was formerly clear, is impermissible, even if the 

relocation itself does not create a new violation) (citing In re Appeal of Tucker, No. 123-

7-98 Vtec (Vt. Envtl. Ct. Aug. 2, 1999) (Wright, J.), aff’d mem., No. 99-399 (Vt. Mar. 10, 

2000) (unpublished mem.)). 

Therefore, the Notice of Violation was correct that the new house violated § 414 

of the 1995 Bylaws, resolving Docket No. 142-7-07 Vtec. 

Equitable Estoppel Against Town

Appellant contends that the Town is precluded from asserting any violation of 

the bylaws or regulations based on the doctrine of equitable estoppel. The doctrine of 

equitable estoppel “precludes a party from asserting rights which otherwise may have 

existed as against another party who has in good faith changed his position in reliance 

upon earlier representations.” In re Lyon, 2005 VT 63, ¶ 16, 178 Vt. 232 (quoting My 

Sister's Place v. City of Burlington, 139 Vt. 602, 609 (1981)). To establish equitable 

estoppel four elements must be established: 
16

(1) the party to be estopped must know the facts; (2) the party to be 

estopped must intend that its conduct shall be acted upon, or the conduct 

must be such that the party asserting estoppel has a right to believe it is 

intended to be acted upon; (3) the party asserting estoppel must be 

ignorant of the true facts; and (4) the party asserting estoppel must 

detrimentally rely on the conduct of the party to be estopped. 

In re Letourneau, 168 Vt. 539, 547 (1998) (citing Agency of Natural Res. v. 

Godnick, 162 Vt. 588, 592 (1994)). 

Furthermore, courts “apply equitable estoppel against the government only in 

‘rare instances’ when the elements of estoppel are met and the injustice that would 

result from denying the estoppel outweighs the negative impact on public policy that 

would result from applying estoppel.” In re Griffin, 2006 VT 75, ¶ 18, 180 Vt. 589 

(mem.) (citing Lakeside Equip. Corp. v. Town of Chester, 2004 VT 84, ¶ 8, 177 Vt. 619 

(mem.)). Therefore, in this instance the Town will only be estopped from asserting a 

violation if Appellant can satisfy all four traditional elements of equitable estoppel, as 

well as satisfying the “public policy” factor that applies only when estoppel is asserted 

against a government entity. 

In this instance, Appellant is not able to satisfy the first element because it cannot 

sufficiently demonstrate that the Town knew the relevant facts about Appellant’s 

proposal. While all three of the zoning administrators involved, particularly Ms. 

Blyther who issued the permit, discussed with Appellant the possibility of having 

certain features of the house extend out beyond the 21’ x 21’ footprint, Appellant never 

disclosed the extent of the intended projection or that the ground floor of the house was 

proposed to project out over the surface of the land. Rather, the discussion referenced 

common open features such as decks, balconies, or a chalet-style roof. 

As in Town of Bennington v. Hanson-Walbridge Funeral Home, 139 Vt. 288, 293 

(1981), the “absence of [full knowledge of what the applicant intended], however 

innocent the applicant and [however] negligent the [zoning] administrator, precludes 
17

the making of a decision on the true facts.” Accordingly, because Ms. Blyther was not 

cognizant of the fact that enclosed portions of the house would extend far beyond the 

21’ x 21’ footprint when issuing the permit, and neither were Mr. Payne and Mr. 

Simmons in their dealings with Appellant, the first element of estoppel cannot be 

satisfied and Appellants cannot assert the doctrine against the Town. 

Appellant also falls short of other required elements of equitable estoppel. As to 

the third element, that “the party asserting estoppel must be ignorant of the true facts,” 

Appellant contends that even though it was aware of the applicable Bylaws it was 

“ignorant” of the fact that the design was impermissible under the 1995 Bylaws. 

However, the fact that Appellant did not recognize the effect of § 414 of the 1995 

Bylaws, as it related to Article VII, is a mistake of law rather than a mistake of fact; 

therefore, Appellant cannot satisfy the third element. The fourth element, regarding 

Appellant’s detrimental reliance, requires that Appellant’s reliance be reasonable. See 

Vt. Structural Steel v. State Dep’t of Taxes, 153 Vt. 67, 74 (1989) (“[R]eliance asserted to 

support estoppel must be reasonable.”) (citing My Sister's Place, 139 Vt. at 609). In this 

instance, Appellant’s reliance on the oral statements and conduct of the zoning 

administrators may not have been reasonable because they were never told that 

extending the enclosed portion of the home far beyond the 21’ x 21’ footprint was 

permissible under the 1995 Bylaws. Regardless, whether Appellant’s reliance was 

reasonable is a matter that must be left for the enforcement case. Accordingly, because 

Appellant cannot satisfy the four traditional elements of equitable estoppel, the doctrine 

does not apply and the Town is not estopped from asserting a violation. 

While the errors of Zoning Administrators Payne and Blyther do not amount to 

an estoppel, they themselves believed, and conveyed the impression to Appellant’s 

representatives, that the former structure could be moved to the east or extended to the 

north or south without increasing its degree of nonconformity. Mr. Payne, Ms. Blyther, 

and Mr. Simmons also conveyed to Appellant’s representatives the impression that 
18

overhanging decks or upper floor balconies did not count as extensions if they were not 

supported by posts. Therefore, due to the ambiguities in the interpretation of the zoning 

permit, the as-built structure remains a nonconforming building, due to the error of 

Zoning Administrator Tina Blyther in approving an ambiguous permit, as ambiguities 

must be interpreted in favor of the landowner. See In re: Anne C. Rose, No. 290-12-07 

Vtec, slip op. at 8. As a nonconforming building, it is regulated and only allowed to 

continue as provided in § 4.12; at a minimum it may not increase its degree of 

nonconformity as provided in that section. 

Article VII of 1995 Bylaws and § 4.12 of 2007 Regulations 

The proposal did not qualify for approval under Article VII of the 1995 Bylaws 

for two reasons. First, even if the project could have been construed as the “normal 

maintenance and repair” of a noncomplying structure, it did increase the degree of 

noncompliance, that is, the degree to which the required front setback was obstructed 

from ground level to the sky. Second, the project did not qualify for approval under 

Article VII, ¶ 4, because the enlarged structure was not in conformity with the front 

yard requirements of the applicable zoning district. 

The proposal does not qualify for approval under § 4.12 of the 2007 Regulations 

without a § 3.6 waiver, for essentially the same reasons. 

While a waiver under § 3.6 is allowed to reduce the dimensional or setback 

requirements in certain circumstances, Clyde’s Place LLC did not apply to the DRB for a 

waiver under § 3.6, and the DRB in the decision appealed from did not rule on a waiver 

under § 3.6. Therefore, the issue of whether to approve a waiver or waivers for the new 

house is not before the Court in this appeal. 
19

Variance

The proposal fails to qualify for a variance under § 510 of the 1995 Bylaws, § 3.7 

of the 2007 Regulations, or 24 V.S.A. § 4469(a). All of those provisions require 

compliance with all five of the general variance criteria to qualify for a variance. The 

project does not meet the second or the fifth requirement of each of those sections, 

because the property was developed with a 21’ x 21’ residential structure which was a 

reasonable use of the property, and is a smaller deviation from the regulations than is 

the new house. Therefore, a variance is denied as the proposal fails to meet 1995 

Bylaws, §§ 510(2), (5); 2007 Regulations, §§ 3.7(C)(2), (5); and 24 V.S.A. §§ 4469(a)(2), (5). 

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED 

that: 

The Notice of Violation is upheld; the as-built construction extended the 

nonconforming structure laterally and in terms of volume so that it occupied more area 

and volume of the 100-foot front (lake) setback than had been occupied by the prior 

building. Any issues as to a remedy or penalty for the violation are beyond the scope of 

the two cases resolved by this decision, and must be addressed in Town of Orwell v. 

Clyde’s Place LLC and Barry, Docket No. 17-1-08 Vtec. 

Appellant-Applicant’s application for a zoning permit for the as-built structure 

as a repair of or enlargement of a noncomplying structure, either under Article VII of 

the 1995 Bylaws or under § 4.12 of the 2007 regulations, is denied. 

Appellant-Applicant’s application for a variance for the as-built structure is 

denied, as it fails to meet the requirements of either § 510 of the 1995 Bylaws, § 3.7 of the 

2007 Regulations, or the state statute, 24 V.S.A. § 4469(a), as discussed above. 
20

As no application for waiver under § 3.6 of the 2007 Regulations was ever made 

by Appellant-Applicant or ruled on by the DRB, the eligibility of the as-built structure 

for such a waiver is not before the Court in either of the present appeals. 

This decision resolves both above-captioned appeals. A telephone conference 

has been scheduled (see enclosed notice) to discuss how the parties would like to 

proceed in the enforcement case, Town of Orwell v. Clyde’s Place LLC and Barry, 

Docket No. 17-1-08 Vtec. 

Done at Berlin, Vermont, this 15th day of December, 2009. 

 _________________________________________________ 

 Merideth Wright 

 Environmental Judge