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STATE OF VERMONT

ENVIRONMENTAL COURT

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In re LaBounty Enterprises } Docket No. 18-2-06 Vtec 

Variance Application } 

} 

Decision

This matter concerns the proposed development of a pre-existing undersized lot on Keel 

Road in the Town of Grand Isle (Town). It was heard on the merits before Environmental Judge 

Thomas S. Durkin on April 10, 2006. This appeal was filed on behalf of the Applicant, 

LaBounty Enterprises, Inc., which is represented by John W. O’Donnell, Esq. The Town 

appeared in this proceeding and presented evidence 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 constructed as proposed on the subject parcel. 

Based upon the evidence submitted at trial, the Court makes the following factual findings: 

Factual Background

1. The subject property is an undeveloped parcel of land containing about 6,000 square feet, 

or about 0.14 acre. It is located on the south side of Keel Road, has 60 feet of road frontage and 

is 100 feet deep. 

2. Appellant is a Vermont corporation 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 elsewhere that totaled between 30 and 50 

acres, in the aggregate. 

4. The subject parcel is located in the Rural Residential and Agricultural 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 expert witness offered testimony 
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that the minimum size of a newly manufactured home (not including campers or trailers) is 44 

feet in length. No evidence was offered to dispute this representation. 

6. The neighborhood surrounding the subject property 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 those installed on lots owned and developed by Appellant) and 

some homes are stick-built structures. 

7. The neighborhood was laid out and subdivided many years ago, prior to the enactment of 

the Grand Isle Zoning Bylaws (Bylaws) and Subdivision Regulations (Regulations). 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 depth. Some of these individual lots have been 

developed with some type of residence, although the evidence at trial showed that such single 

lots only had campers or small structures on them that were used as seasonal residences. 

8. Many of the developed lots in the surrounding 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 minimum lot size of one acre and minimum road 

frontage of 150 feet. The subject lot does not conform to these requirements, but was created 

prior to the enactment of zoning. 

12. To accommodate the minimally sized structure Appellant represented at trial (i.e.: 14 feet 

by 44 feet), Appellant’s proposed development would require the following variances: a ninefoot reduction in either the front or rear setback (or combination thereof) and a four-foot total 

reduction in either (or both) of the side setbacks, not including 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 specific design was offered at trial. 

13. Steps and decks, less than two feet off the ground, are exempt from the zoning setback 

regulations, per the testimony offered at trial by the Grand Isle Zoning Administrator. 

14. When the LaBountys purchased the subject lot in 1995, the zoning regulations then in 

effect pertaining to lot size, frontage and setbacks for the RR & Ag. District were the same as the 
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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 circumstances 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 these conditions, and not the circumstances 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 developed in strict conformity with the provisions of the 

bylaw, and that the authorization of a variance is therefore 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 resources, or be detrimental to the public 

welfare. 

(5) The variance, if authorized, will represent the minimum variance that will afford 

relief and will represent the least deviation 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 language 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 original). Thus, we must review the 

application here in the context of each of the five statutory standards. If we cannot make a 

positive finding as to the proposed development on any one of these statutory standards, we must 

deny Appellant’s application. 

 

1

 The only apparent difference appears to be that the Bylaws have no subsection (5). That section of the statute 

appears as the last sentence in subsection (4) of the Bylaws. 
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The subject lot is a pre-existing lot which does 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 does not contest. See Bylaws § 4.6 and 24 V.S.A. 

§ 4412(2). Status as an existing small lot does not exempt a parcel from the requirement that the 

proposed development either comply with setback 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 identical in size to several of the lots in the 

surrounding neighborhood. The evidence at trial showed 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 residences. 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 other lots in the surrounding neighborhood. The proposed home 

would also be similar to several of the other year-round residences in the area. These year-round 

residences appear larger than the nearby seasonal 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 satisfy 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 the subject lot. Such a 

structure would be more modest than Appellant proposes and may not bring about the 

improvements to the neighborhood that Appellant suggests its proposed development would 

bring. But subsection (2) does not speak to such considerations; it requires 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. 
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is no possibility that the property can be developed in strict conformity with the provisions of the 

[RR & Ag. District].” The other neighborhood structures, many of them 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 development cannot satisfy 

subsection (5), in that the variance requested for 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 seasonal residences evidence that the subject lot can be developed 

without any variance, thus compelling us to reach our conclusion as to subsection (5). 

We are mindful that zoning regulations are a community’s way of establishing how 

development should occur in its different neighborhoods and that the municipality 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 chapter to . . . provide means and methods for the 

municipalities and regions of this state to plan for the prevention, minimization and future 

elimination of such land development problems 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 occupations which clash therewith. The expansion of a 

nonconforming use offends the spirit of zoning regulation.”)(internal citation omitted). 

While we also wish to show respect to the 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 prevent, minimize, and eventually 

eliminate land development that is in conflict with lawfully enacted 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 14th day of July, 2006. 

 

 

 Thomas S. Durkin, Environmental Judge