1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Dufault Variance Application } Docket No. 28 7-12-07 Vtec 1 (Appeal of Dufault) } }

Decision and Order on Motion for Summary Judgment

Appellants André and Madeline Dufault appealed from a second decision of the Development Review Board (DRB) of the Town of St. A lbans, issued after remand, denying Appellants’ variance application. Appellan ts are represented by Michael S. Gawne, Esq., and the Town of St. Albans is represente d by David A. Barra, Esq. Issues of deemed approval were addressed by summary judgment, and Appellants have now moved for summary judgment on Q uestion 3 of their Statement of Questions, requesting the Court to strike that po rtion of the St. Albans Town Zoning Ordinance requiring ten feet of separation between a principal and an accessory structure in order for an accessory structure to qu alify for a reduced setback. The following facts are undisputed unless otherwise not ed; the description of the property and its development history already stated in the A ugust 4, 2008 Decision and Order will be reiterated only as necessary to this decisi on. In the Lakeshore zoning district, the dimensional re quirements for the yard 2 setbacks distinguish between the setback applicable to a principal structure, which is 25 feet, and that applicable to an accessory structure, which is 15 feet. Zoning Bylaws and Subdivision Regulations, § 315(3). The term “access ory structure” is defined in Part V,

Definitions , as being “incidental and subordinate to” the prin cipal structure. The

1 Please note that this is the correct docket numb er, not 129-6-07 Vtec.

2 That is, other than the setbacks to a road and to the mean water mark.2

examples in the definition include “detached garage s,” suggesting that attached garages would be considered to be part of the principal str ucture. Note 2 to the dimensional requirements in § 315(3) provides in full as follows: In order to qualify for the accessory structure yar d setback of 15 feet, there has to be 10 feet [of] separation betwee n the closest parts of the principal and the accessory structures. If the str uctures are less than ten feet apart, then the yard setback for a principal st ructure is to be applied to the accessory structure as well. Appellants argue that this disparate treatment is n ot supported by “considerations of public health, safety, morals, or g eneral welfare,” and is not supported by the purposes in the enabling legislati on: 24 V.S.A. § 4302(a). Although any ambiguity in a zoning ordinance is to be decided in favor of the landowner because zoning ordinances are in derogati on of the common law, In re Appeal of Weeks , 167 Vt. 551, 555 (1998) (citing In re Vitale , 151 Vt. 580, 584 (1989)), no ambiguity presents itself in the ordinance section at issue in the present case. Rather, Appellants argue that the quoted section of the ord inance is unconstitutional as being clearly unreasonable, irrational, arbitrary and discr iminatory, and that the Court should declare it to be invalid. See, e.g. , In re Appeal of JAM Golf, LLC , 2008 VT 110, ¶¶ 13–14, 17; McLaughry v. Town of Norwich , 140 Vt. 49, 54–56 (1981). Zoning bylaws are presumed to be valid, and thus wil l not be overturned by courts unless the bylaw at issue “’clearly and beyo nd dispute is unreasonable, irrational, arbitrary or discriminatory.’” In re App eals of Letourneau , 168 Vt. 539, 544 (1998) (quoting City of Rutland v. Keiffer , 124 Vt. 357, 367 (1964)); see McLaughry , 140 Vt. at 54. Zoning ordinances are construed accordi ng to the same rules that are used to interpret statutes. In re St. Mary’s Church Cell T ower , 2006 VT 103, ¶ 4, 180 Vt. 638 (mem.) (citing In re Nott , 174 Vt. 552, 553 (2002) (mem.)). The parties do not claim that any fundamental right or suspect class is involved in this argument. In the absence of a fundamental right or suspect class, “challenges3

under the equal protection clause are reviewed by t he ‘rational basis’ test.” Colchester

Fire Dist. No. 2 v. Sharrow , 145 Vt. 195, 198 (1984) (citing Pabst v. Comm’r of Taxes , 136 Vt. 126, 132–33 (1978)). If there is a rational bas is for the distinctions, serving a legitimate policy objective, there is no equal prote ction violation. State v. Stewart , 140 Vt. 389, 402 (1981) (citing State v. Carpenter , 138 Vt. 140, 142–43 (1980)). “In applying this standard, we must look at any of the purposes t hat are conceivably behind the statute.” Smith v. Town of St. Johnsbury , 150 Vt. 351, 357 (1988) (citing State v. Stewart , 140 Vt. at 402). Due to the presumption of constitutionality, that is , the presumption that the legislative body has not acted unreasonably or with out purpose, Andrews v. Lathrop , 132 Vt. 256, 259 (1974), the Court must “uphold the c lassification if we can conceive of any reasonable policy or purpose for it.” M.T. Ass ocs. v. Town of Randolph , 2005 VT 112, ¶ 12, 179 Vt. 81 (citing Hoffer v. Dep’t of Taxe s , 2004 VT 86, ¶ 10, 177 Vt. 537 (mem.)). It is not a question of whether an explic it purpose statement in the ordinance supports the classification, but whether the classif ication “serves any legitimate purpose that is conceivably behind the statute.” See Quesn el v. Town of Middlebury , 167 Vt. 252, 257 (1997) (citing State v. Stewart , 140 Vt. 389, 402 (1981)). As long as the court can conceive of a possible rational basis for a legisla tive distinction, the classification should be upheld. See Smith v. Town of St. Johnsbury , 150 Vt. 351, 359 (1988). Regardless of whether the distinction in the ordina nce should have been applied to Appellants’ case, or whether the existing layout of Appellants’ property became grandfathered as nonconforming when the property wa s internally subdivided, there is

an evident rational basis for the distinction betwe en accessory structures that are attached or very close to the principal structure, a nd those that are more than ten feet from the principal structure. By definition, an accessory structure and the use it houses (for example, a garage or storage shed) is “incidental and subordinate to” the principal structure and use, and4

therefore can be expected to be less obtrusive to t he neighbors. Appellants do not contest that it is rational to require a larger set back for a principal structure (for example, a residence) than for an accessory structur e (for example, a detached garage or storage shed). Appellants also do not claim that i t is irrational to require an attached addition to the principal structure, such as a porch or a deck, to be held to the same setback requirements as the principal structure.

A conceivable rational basis for the contested dist inction is to prevent persons from achieving a reduced setback for a series of ad ditions to a principal structure that

would not have been allowed if the additions had al l been built or proposed at the same time. That is, it is rational for the Town to seek to preclude landowners from first building a house and a detached garage with the red uced setback, and then later building a connecting segment between the two, there by effectively avoiding the full setback requirement for additions to the principal structure. The selection of ten feet of separation is also a rational choice, as it represen ts the additional setback that otherwise would have been required on the boundary side of th e accessory structure, that is, if the principal and the accessory structures had been bui lt as attached structures in the first place. Of course, there are other ways in which the zoning ordinance could have achieved this same goal. But the test for constitu tionality is whether there is a conceivable rational basis for the distinction, not whether the ordinance is the ideal way to achieve the intended result. In re Appeals of L etourneau , 168 Vt. 539, 544 (1998).

Accordingly, based on the foregoing, it is hereby ORD ERED and ADJUDGED that Appellants’ Motion for Summary Judgment is DEN IED, Summary Judgment is GRANTED to the Town on Question 3 of the Statement of Questions. A telephone conference has been scheduled (see enclosed notice) to discuss the issues that remain in the case, and whether an evidentiary hearing should be scheduled. Please also be5

prepared to discuss the issues raised in footnotes 1 and 2 of the August 4, 2008 Decision

and Order.

Done at Berlin, Vermont, this 18 th day of March, 2009.

________________________________________________ _ Merideth Wright Environmental Judge