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. STATE OF VERMONT ENVIRONMENTAL COURT
} In re LaBounty Enterprises } Docket No. 18-2-06 Vtec Variance Application } }

Decision
This matter concerns the proposed developmen t of a pre-existing undersized lot on Keel Road in the Town of Grand Isle (Town). It wa s heard on the merits before Environmental Judge Thomas S. Durkin on April 10, 2006. This app eal was filed on behalf of the Applicant, LaBounty Enterprises, Inc., which is repres ented by John W. O’Donnell, Esq. The Town appeared in this proceeding and presented ev idence and legal arguments through its attorney, Will S. Baker, Esq. No other party participated or appeared in this proceeding. The subject application seeks approval for several variance requests as to setbacks, so that a proposed single-family dwelling may be c onstructed as proposed on the subject parcel. Based upon the evidence submitted at trial, th e Court makes the following factual findings:

Factual Background

1. The subject property is an unde veloped parcel of land contai ning about 6,000 square feet,
or about 0.14 acre. It is located on the south side of Keel Road, has 60 f eet of road frontage and is 100 feet deep.
2. Appellant is a Vermont cor poration owned by Mr. and Mrs. LaBounty. Mrs. LaBounty
testified at trial.
3. The subject parcel was purchased in 1995 from Mrs. LaBounty’s father as part of a purchase of numerous parcels of land in Grand Isle and elsewher e that totaled between 30 and 50 acres, in the aggregate.
4. The subject parcel is located in the Rural Residential and Agricult ural Zoning District (RR & Ag. District).
5. By its application, Appellant first proposed to install a manufactured home on the subject property that measured 14 feet in width by 60 feet in length. At trial, Mrs. LaBounty offered to reduce the proposed structure to 44 feet in length. Appellant’s e xpert witness offered testimonyP age 2 of 5

. that the minimum size of a newly manufactured home (not including camper s or trailers) is 44 feet in length. No evidence was o ffered to dispute this representation.
6. The neighborhood surrounding the subject propert y is made up of a mix of seasonal and year-round residences. Some of the surrounding homes are campers or trailers, some are manufactured homes (including t hose installed on lots owned and developed by Appellant) and
some homes are stick-built structures.
7. The neighborhood was laid out and subdivided ma ny years ago, prior to the enactment of the Grand Isle Zoning Bylaws (Bylaws) and Subdiv ision Regulations (Regul ations). It appears that the neighborhood streets were established to accommodate two rows of lots, all measuring 60 feet wide for road frontage and 100 feet in de pth. Some of these individual lots have been developed with some type of residence, althou gh the evidence at trial s howed that such single lots only had campers or small structures on th em that were used as seasonal residences.
8. Many of the developed lots in the surroundi ng neighborhood consist of the combination of at least 3 and as many as 17 of the original, 60 ′ by 100 ′ lots.
9. There was no evidence presented at trial that any other lot, similarly sized to the subject lot, has been granted a variance.
10. The Bylaws require the following setbacks for the RR & Ag. District: front setback of 40 feet; side setbacks of 25 feet; rear setback of 25 feet; and driveway setback of 15 feet from side
boundaries.
11. These Bylaw provisions also require a mini mum lot size of one acre and minimum road frontage of 150 feet. The subject lot does not c onform to these requirem ents, but was created prior to the enactment of zoning.
12. To accommodate the minimally sized structure Appe llant represented at trial (i.e.: 14 feet by 44 feet), Appellant’s proposed development w ould require the following variances: a ninefoot reduction in either the front or rear setbac k (or combination thereof) and a four-foot total reduction in either (or both) of th e side setbacks, not in cluding overhangs, steps or decks. Based upon Mrs. LaBounty’s testimony at trial, the proposed steps or decks would be between three and four feet wide. No specifi c design was offered at trial.
13. Steps and decks, less than two feet off th e ground, are exempt from the zoning setback regulations, per the testimony offered at tria l by the Grand Isle Zoning Administrator.
14. When the LaBountys purchased the subject lot in 1995, the zoning re gulations then in effect pertaining to lot size, frontage and setbacks for the RR & Ag. District were the same as theP age 3 of 5

. applicable provisions when Appellant submitted its current application.

Discussion
This case involves the proper interpretation of Bylaws § 2.12.5 and 24 V.S.A. § 4469(a). The statutory provision is essentially mirrored by the Bylaws provision. 1 Relevant portions of the Bylaws include the following language from the statute: (1) There are unique physical circumstan ces or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship is due to thes e conditions, and not the ci rcumstances or conditions generally created by the provisions of the bylaw in the neighborhood or district in which the property is located. (2) Because of these physical circumstances or conditions, there is no possibility that the property can be devel oped in strict conformity with the provisions of the bylaw, and that the authoriza tion of a variance is therefor e necessary to enable the reasonable use of the property. (3) Unnecessary hardship has not been created by the appellant. (4) The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, substantially or permanently impair the appropriate use or development of adjacent property, reduce access to renewable energy resour ces, or be detrimental to the public welfare. (5) The variance, if authorized, will repr esent the minimum variance that will afford relief and will represent the least deviat ion possible from the bylaw and from the plan. 24 V.S.A. § 4469(a). When applying for a variance, an applicant accepts several difficult burdens, all established by the regulatory langua ge cited above. We have been cautioned that for a zoning variance to be granted, it “must be based upon a showing of conformance with each of the five statutory criteria . . . .” In re Dunnett , 172 Vt. 196, 199 (2001), citing Blow v. Town of Berlin Zoning Adm’r , 151 Vt. 333, 335 (1989)(emphasis in the orig inal). Thus, we must review the application here in the context of each of the five statutory st andards. If we cannot make a positive finding as to the proposed development on a ny one of these statutory standards, we must deny Appellant’s application.

1 The only apparent difference appears to be that the Byla ws have no subsection (5). That section of the statute appears as the last sentence in subsection (4) of the Bylaws.P age 4 of 5

. The subject lot is a pre-existing lot which doe s not conform to the applicable size and frontage dimensions. However, the parcel may be developed because it qualifies as an “existing small lot,” a legal conclusion that the Town doe s not contest. See By laws § 4.6 and 24 V.S.A. § 4412(2). Status as an existing sm all lot does not exempt a parcel from the requirement that the proposed development either comply with se tback requirements or obtain the necessary variances. Appellant here does not dispute that its development must obtain variances from the setback requirements and has sought such variances with its pending application. The subject lot is similar, and in fact iden tical in size to several of the lots in the surrounding neighborhood. The evidence at trial show ed that most, if not all, of the nearby developed lots that have remained 60 ′ by 100 ′ in size are occupied by small homes or campers
that are used as seasonal residenc es. Nonetheless, it is the “narrowness [and] shallowness of lot size,” not created by the applicant here, that gives rise to the need for Appellant’s variance request. The Court therefore concludes that subsections (1) and (3) have been met. 2 The manufactured home Appellant suggested at trial is similar to several homes Appellant has installed on ot her lots in the surrounding ne ighborhood. The proposed home
would also be similar to several of the other year-round residences in the ar ea. These year-round residences appear larger than the nearby seas onal residences, but do not “alter the essential character of the neighborhood.” Even though these residences are on larger lots, we conclude that the proposed home will not substantially or permanently impair the appropriate use or development of adjacent property . . . .” 3 Thus, we find that the proposed development satisfies subsection (4) of the Bylaw and § 4469(a). However, the proposed development cannot satisf y the requirements of subsections (2). Both Appellant and the Town offered evidence at trial of several nearby campers and stick-built
structures that could fit within the 10 ′ by 35 ′ building envelope of th e subject lot. Such a structure would be more modest than Appe llant proposes and may not bring about the improvements to the neighborhood that Appellan t suggests its proposed development would bring. But subsection (2) does not sp eak to such considerations; it re quires us to find that “there

2 This conclusion is a close call. The facts presented could lead us to conclude that the subject lot is not unique and the need for a variance is not caused by unique circumstances, but rather by the proposed development’s nonconformity with the setback regulations. However, even if we were to find that Appellant has not met the requirements of subsection (1), the outcome of this appeal would not change.

3 The waste disposal system that would serve the proposed home would essentially consume the developable area of a similarly sized lot Appellant owns across Keel Road. However, since the neighborhood consists of many lots created by the merger of several adjoining lots, we do not find the proposed development and its waste disposal system to be in conflict with these specific statutory provisions.P age 5 of 5

. is no possibility that the property can be developed in strict conformity with the provisions of the [RR & Ag. District].” The othe r neighborhood structures, many of th em modest and for seasonal use only, evidence that the subject lot can be developed in strict conformity with the applicable Bylaws provisions. For these same reasons, we conclude that the proposed devel opment cannot satisfy subsection (5), in that the variance requested fo r the proposed development will not “represent
the minimum variance that will afford relief and will represent the least deviation possible from the bylaw . . . .” The nearby se asonal residences evidence that the subject lot can be developed without any variance, thus compelling us to re ach our conclusion as to subsection (5). We are mindful that zoning regulations ar e a community’s way of establishing how development should occur in its different neighbor hoods and that the munici pality is the first
arbiter of what uses should be eliminated from certain zoning districts. See 24 V.S.A. § 4302(a) (“It is the intent and purpose of this chap ter to . . . provide means and methods for the municipalities and regions of this state to pl an for the prevention, minimization and future elimination of such land development problem s as may presently exist or which may be foreseen”). See also DeWitt v. Town of Brattleboro , 128 Vt. 313, 319 (1970) (“a fundamental theory of . . . zoning [is] that it shall be for the general good, to secure reasonable neighborhood uniformity, and to exclude structures and occupati ons which clash therewit h. The expansion of a nonconforming use offends the spirit of z oning regulation.”)(inter nal citation omitted). While we also wish to show respect to th e rights of property owners to determine how they can develop their property, including property that predates and may now be in conflict with zoning regulations

― see, for example, 24 V.S.A. § 4412(2) regarding existing small lots

― we must follow the directives of the Dunnett and Blow Decisions. Section 4469 provides a mechanism by which variances may be granted, but the rigidity of its provisions reinforces the Legislature’s intent to provide communities with the means to pr event, minimize, and eventually eliminate land development that is in conflic t with lawfully enact ed zoning regulations. Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant’s request for a variance is DENIED . A Judgment Order accompanies this Decision.

Done at Berlin, Vermont, this 14 th day of July, 2006.

Thomas S. Durkin, Environmental Judge