STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of James E. 

Burke and L. Scott Frantz 

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Docket No. 218-11-99 Vtec

DECISION and ORDER

Appellants James E. Burke and L. Scott Frantz appealed from a decision of the Development 

Review Board (DRB) of the Town of Warren, approving an increase in the building envelope for 

the property of Appellee-Applicants Victor and Angela Shashoua.

Appellants are represented by Paul S. Gillies, Esq.; Appellee-Applicants are represented by John 

D. Hansen, Esq.; other neighboring landowners Peter and Jane Schneider entered their 

appearance as interested parties but did not take an active role; the Town of Warren did not enter 

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

Environmental Judge. The parties were given the opportunity to submit written requests for 

findings and memoranda of law. Upon consideration of the evidence, the written memoranda and 

proposed findings, the Court finds and concludes as follows.

Appellee-Applicants own a 10.1 acre parcel on Fuller Hill Road in the Rural Residential zoning 

district. A large portion of the parcel qualifies as A meadowland@ as regulated by ' III(2)(E)(4) of 

the Zoning Bylaws. Under that section, Appellee-Applicants were required to obtain conditional 

use approval, including to obtain approval of a building envelope, that is, the placement of the 

use on the lot. One of the criteria for approval of the placement of the use on the lot is that the 

placement A minimizes the disruption of the scenic quality of the site.@

Appellee-Applicants obtained Permit # 1997-10-MM in July of 1997 from the then-ZBA, 

approving a building envelope approximately 104 feet east-to-west and 50 feet north-to-south, 

located in the northwest corner of the parcel, 40 feet from the rear (or northerly) boundary and 60 

feet from the westerly boundary. This placement put the house site in the upper portion of the 

site, relatively visible from certain vantage points, including that of Appellant Burke= s home. 

Large trees down by the roadside screen the house site to some extent from the road. In the 1997 

decision the then-ZBA found that the placement of the house site will minimize the disruption of 

the scenic quality of the site. At the time of the 1997 conditional use (building envelope) permit, 

no house design or application for zoning permit to construct the house was before the thenZBA. The 1997 conditional use (building envelope) permit contained conditions requiring 

Appellee-Applicants to adhere to the landscaping plan and to replace trees as needed, and 

defining the building envelope.

No party appealed the July 1997 ZBA approval. Therefore, the 104' x 50' building envelope 

placement (the house site) and its accompanying landscaping plan are not before this Court, 
regardless of what the evidence shows about whether the house placement in fact disrupts the 

scenic quality of the site. It became final and is not before the Court in the present appeal.

Appellee-Applicants obtained approval in October 1997 for a sewage disposal system for a four 

bedroom house. Appellee-Applicants then obtained a zoning permit in October 1998 to construct 

a two-story single-family dwelling, 64' x 57' in size. No height dimension was given in that 

application, as shown in Exhibit E. A height limit of 35' is provided in the regulations. Building 

Permit #98-103-MM was issued for the construction, effective November 5, 1998. Neither the 

Zoning Permit nor the Building Permit was appealed. They therefore became final and are not 

before the Court in the present appeal.

In June of 1999, the Zoning Administrator cited Appellee-Applicants for two zoning violations: 

that as-built the structure measures 94' x 55' rather than the 64' x 57' approved; and that the 

setback to the rear property line measures 35 feet rather than the approved 40 feet. The elevation 

of the structure on the site did not change; rather, the foundation was excavated into the hillside 

five feet farther to the rear of the property. The Notice of Violation did not claim any violation 

for the height or number of stories of the building, although it describes the approved residence 

as A 64' x 57' x 28', two stories.@ On the rear or uphill side, the building is two stories to the eave 

line, plus an attic in the sloping roof. On the front, or downhill side, the building appears to have 

a walk-out basement under the deck, with two stories above that to the eave line, plus the attic.

No party appears to have appealed the Notice of Violation, and no enforcement action was filed 

by the Town. No denial of a request for the Town to take enforcement action has been appealed 

to this Court, and no mandamus action has been filed. Therefore, the question of whether either 

the height or the number of stories violates the original permit is not before the Court; the 

question of whether the length of the building as built violates the original permit is not before 

the Court; and the question of whether the placement of the building (building envelope) as built 

violates the original permit is not before the Court. In particular, additional screening made 

necessary by the increase in the visible number of stories or visible breadth of the building from 

the 64 feet approved in the permit to the 94 feet as built, is not before the Court in the present 

case.

In response to the notice of violation regarding the building envelope, Appellees applied for 

zoning permit # 1999-55-MM, seeking an amendment to the conditional use approval1for the 

building envelope. We note that this application only sought amendment to the building envelope 

(permit # 1997-10-MM), and did not seek amendment to the zoning permit for the house 

construction (permit #1998-103-MM). That is, although the building envelope amendment 

application stated the dimensions of the building as 94' in length, 55' in width, 28' in height, and 

as having 2 stories plus basement, the application did not seek or obtain approval of the larger, 

longer house dimension, and did not rule on or resolve whether the building as-built violated 

permit #1998-103-MM. This application only sought to extend the building envelope another 

five feet to the rear of the property, (away from Appellants= properties). In connection with the 

application, Appellee-Applicants proposed amendments to the planting plan.

Because the amendment only seeks to extend the building envelope towards the rear of the 

property, those aspects of the project that are unchanged from the unappealed 1997 permit 
cannot here be challenged either directly or indirectly. While the Court agrees that Appellants=

proposed planting plan would be far superior to that proposed by Appellee-Applicants in 

minimizing the disruption to the scenic quality of the site caused by the placement of the 

building envelope, and by the increased breadth and apparent number of stories of the house as 

built, the Court cannot impose it in the context of this amendment application merely to extend 

the building envelope to the rear of the site. The original planting plan could have been 

challenged in the 1997 proceeding to set the building envelope, just as the size and the height of 

the house could have been challenged in the 1998 proceeding approving of the house 

construction, and just as the excessive length and possibly excessive height of the house could 

have been addressed (and may still be able to be addressed) in an enforcement proceeding, or by 

challenging the failure of the Town to bring an enforcement proceeding.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants= appeal is 

DENIED; the application is approved on the same terms as approved by the Development 

Review Board.

Dated at Barre, Vermont, this 8th day of January, 2001.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 We also note that the amendment application characterized the “description of work to be 

done” as: “amend meadowland conditional use variance to conform to as-built status”, but, in 

fact, no variance was involved. The DRB’s “Finding of Fact and Notice of Decision” carries 

forward this title in its caption: “Meadowland Variance Review.” However, this application was 

in fact for an amendment of the site envelope approval and not for a variance. The DRB did not 

apply the variance criteria in the regulations or ordinance, and the Court draws no conclusions 

about whether this project could qualify for a variance under the statutory criteria.