1 

STATE OF VERMONT 

SUPERIOR COURT - ENVIRONMENTAL DIVISION 

{ 

In re: Smith Boathouse Permit Application1 { Docket No. 117-8-12 Vtec 

 { (Appeal from Leicester ZBA (No. 21-12-ZA)) 

 { 

Judgment Order 

Jeffrey T. Smith and Linda M. Smith (“Applicants”) have appealed a decision by the 

Town of Leicester Zoning Board of Adjustment (“ZBA”) denying their application for a zoning 

permit to build a boathouse and rail system to store a boat on their property at 1134 Hooker 

Road, which lies along the shoreline of Lake Dunmore. 

Mr. Smith first submitted an application for his proposed boathouse in 2009; that 

application was approved by the Town of Leicester Zoning Administrator (“the 

Administrator”). Once Mr. Smith began site work on his property, at least one concerned 

neighbor contacted state authorities about work allegedly being done in Lake Dunmore or an 

adjoining wetland. Mr. Smith voluntarily ceased his site work, began discussions with state 

officials, and revised his project plans. As a consequence, Applicants sought a new building 

permit. 

Applicants submitted their second application on June 5, 2012. When the Administrator 

denied this second application, Mr. Smith filed a timely appeal with the ZBA. When the ZBA 

denied Mr. Smith’s appealed application on August 14, 2012, Applicants filed a timely appeal 

with this Court. 

Once Applicants filed their appeal with this Court, several of their neighbors appeared 

and filed cross-appeals.2 All of these individuals, including Mr. and Mrs. Smith,3 appeared as 

self-represented litigants. Mr. Smith initially sought to narrow the legal issues to be addressed 

 

1

 The caption originally assigned to this appeal was In re Smith CU (Boathouse denial). During trial, the 

Court determined that the caption needed to be revised, since the Smith application did not seek 

conditional use approval; no party at trial asserted that Mr. Smith’s proposed boathouse required 

conditional use approval. We have therefore revised the caption to delete the reference to CU approval. 

2

 Neighbors William Pitkin, Linda Pitkin, Harry Chen, and Anne Lezak filed cross-appeals; neighbors 

Andrew and Bethany Menkart, Charles H. and Grace S. Makovec, Susan Potter, Rosemary Spahn, 

Stephan Beck, Kate Williams, and Lisa Ventriss appeared as self-represented Interested Persons. The 

Town of Leicester, through its attorney, James F. Carroll, Esq., and the State of Vermont Agency of 

Natural Resources (“ANR”), through its attorney, John Zaikowski, Esq., also entered appearances.

3

 Mr. Smith is a Vermont licensed attorney and appeared in this proceeding on his and Mrs. Smith’s 

behalf. 
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by the Court by filing a motion for summary judgment. The Town of Leicester (“Town”) 

opposed Mr. Smith’s motion, as did several of his neighbors. The Court then issued an Entry 

Order, granting in part and denying in part Applicants’ summary judgment motion. See In re 

Smith Boathouse Permit App., No. 2-1-12 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Mar. 26, 

2013) (Durkin, J.). As a consequence of this Entry Order, only Question 2 of Applicants’ 

Statement of Questions (filed Sept. 6, 2012) remained for adjudication. Question 2, as 

paraphrased by the Court, asked whether Applicants’ revised plans for their boathouse 

conformed to the applicable provisions of the Town of Leicester Zoning Bylaws (“Bylaws”). Id. 

at 3. The Court noted that Bylaws § 620 provided that “[w]aterfront lots may have a one-story 

boathouse chiefly for the purpose of boat storage and one end may extend into the water 16 

feet, if permitted by state statute or regulation.” Id. We also noted that at trial Applicants 

would need to show that their proposed structure conformed to the applicable dimensional 

provisions of the Bylaws, including the dimensional provisions in the remaining portion of 

Bylaws § 620. Id. at 4. 

The Court then directed the parties to complete their trial preparations so that the Court 

could receive evidence at trial on these remaining legal issues, as well as the legal issues raised 

by the Cross-Appellants.4 

The Court conducted a site visit and trial on September 6, 2013. The statements and 

observations made during the site visit were not regarded as evidence, but rather were relied 

upon to provide context for the evidence received at trial. When all parties had a full 

opportunity to present evidence and cross-examine the witnesses presented by other parties, 

the Court recessed the merits hearing to begin its deliberations and complete legal research. 

The Court then reconvened the hearing to announce its Findings of Fact and Conclusions of 

Law. This Judgment Order is issued to provide a summary of the Findings and Conclusions 

rendered by the Court at the conclusion of the merits hearing, and to fulfill the Court’s 

obligations under V.R.C.P. 58 to issue a Judgment Order. 

1. Applicants’ property is located in the Lake Zoning District (“Lake District”) and 

therefore must conform to Bylaws § 270. 

 

4

 All of the Questions posed by the Cross-Appellants challenge whether the proposed boathouse 

conforms to various dimensional requirements and therefore overlap the legal issues raised by 

Applicants’ Question 2, as paraphrased by the Court. See Cross-Appellants Linda and William Pitkin’s 

Statement of Questions, filed Oct. 9, 2012 and Cross-Appellants Harry Chen and Anne Lezak’s Statement 

of Questions, filed Oct. 11, 2012. 
3 

2. Applicants’ parcel, measuring approximately 70 feet wide and 110 feet deep, has 

frontage on both Hooker Road and Lake Dunmore. The parcel currently contains no 

development. Applicants own another nearby property on which their home is located. That 

property does not adjoin the subject property and does not have frontage on Lake Dunmore. 

3. Applicants first proposed to construct a boathouse that encroached into the waters of 

Lake Dunmore. After they received approval for the 2009 municipal permit application, Mr. 

Smith caused a portion of the subject property to be excavated and about 20 to 24 cubic yards of 

stone and fill to be brought onto the subject property. The area Mr. Smith excavated and filled 

is a classified and protected wetland. 

4. ANR officials determined that if Applicants continued with their plans to construct and 

use a boathouse that encroached into Lake Dunmore, they would need to apply for and obtain a 

state permit. See Town Exhibit 6. In addition, ANR officials advised Mr. Smith that he must 

remove the unauthorized fill from the wetland on his property to correct this wetland violation, 

whether on not he proceeded with his plans to construct a boathouse, and whether that 

boathouse encroached into Lake Dunmore or not. Id.

5. Applicants revised their plans so that their proposed boathouse would not extend into 

Lake Dunmore (“the Lake”). Applicants propose to install a winch and two steel rails that 

would extend from the boathouse and into the Lake, so that they could winch their boat from 

the Lake and into the boathouse. Applicants proposed to remove the rails from the Lake each 

fall and return them to the Lake each spring. 

6. Mr. Smith proposed to remove the stone and fill from the subject property after 

construction of the boathouse. As of the date of trial, the stone and fill remained on the 

property. None of the seeding or mulching directed by ANR officials, as noted in Town Exhibit 

6, had been done. 

7. Bylaw § 270 establishes the requirements for development in the Lake District, including 

that all listed uses may be permitted, “unless prohibited by . . . other provisions of these bylaws 

or state or federal regulations.” Id. Town Exhibit 6 provided uncontroverted evidence that Mr. 

Smith placed stone and fill in the wetland on his property without required state or municipal 

permits. Therefore, a permit to building a boathouse on the property cannot be granted because 

of the illegal filling of the wetland. 
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8. Bylaw § 620 provides authority for a boathouse to be constructed and used on 

waterfront properties, but does not supersede the use and dimensional requirements for the 

Lake District. 

9. Bylaws § 270 lists permitted and conditional uses allowed in the Lake District. That 

provision does not specifically list boathouses as being either a permitted or conditional use, but 

does list “accessory use or building” as a permitted use. Implicit in this provision is that an 

accessory use or building is only allowed on a Lake District property if it accompanies a 

principal use or building. Because § 620 does not supersede the use requirements, a boathouse 

may only be allowed as an accessory use or building in the Lake District and therefore must 

accompany a principal use or building. 

10. Applicants provided no evidence of the principal use or building on the subject 

property. 

Based upon the Court’s stated Findings and Conclusions, specifically the Conclusions 

that violations of state wetlands protection laws continue on the property and that the proposed 

boathouse does not constitute a permitted, conditional, or accessory use or building allowed in 

the Lake District, the Court announced its DENIAL of Applicants proposed development. 

This completes the current proceedings before this Court on this application. 

Done at Berlin, Vermont this 13th day of November, 2013. 

 

 Thomas S. Durkin, Environmental Judge