1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re DeRoy Variance Applications } (Appeal of Kowalski) } Docket No. 14-1-09 Vte c } }
Decision on Motion for Summary Judgment Appellant Christopher Kowalski has appealed from a decision of the Town of Hubbardton Zoning Board of Adjustment (“ZBA”), whic h granted Joseph and Isabelle DeRoy (“Applicants”) two variances to construct a house a nd detached garage inside the front-yard setback on Applicants’ residential property in Hubb ardton, Vermont. The only issue raised in this appeal is whether Applicants’ proposed project s satisfy the statutory variance criteria set forth in 24 V.S.A. § 4469(a). 1 Mr. Kowalski has moved for summary judgment, assert ing that Applicants cannot meet the applicable variance criteria for either proposa l as a matter of law. Applicants respond in opposition; the Town of Hubbardton (“Town”) has not filed a response to the pending motion. Mr. Kowalski is represented by Gary R. Kupferer, Es q.; the DeRoys are represented by Ebenezer Punderson, Esq.; the Town is represented b y Matthew D. Gilmond, Esq. and Constance Tryon Pell, Esq.
Factual Background For the sole purpose of putting the pending motion into context, we recite the following facts, which we understand to be undisputed unless otherwise noted:
1. Applicants own a 0.63± acre parcel in Hubbardton, V ermont, which has frontage on Lake Beebe. Their property is located in the Town’s Sho reland Zoning District, where there are a number of single-family residences in the neighborh ood and along the shore of the Lake.
2. Applicants purchased the property in 1985, which wa s previously improved with a single-family residence, and they have since used t he residence as a vacation home. The existing home predates the adoption of zoning in the Town.

1 Although the parties have not provided the Court with a complete copy of the Town Zoning Regulations
, particularly the provisions concerning variances, t he parties agree that whether Applicants are entitl ed to a variance is controlled by the statutory variance criteria ou tlined in 24 V.S.A. § 4469(a). Our analysis procee ds accordingly.2

3. Applicants’ property is accessed by Pine Lane, a tw enty-foot-wide right-of-way that runs parallel to Lake Beebe. Pine Lane traverses Applic ants’ property, effectively bisecting their 0.63± acre parcel.
4. Zoning regulations adopted since the construction o f Applicants’ existing residence require that buildings be set back forty feet from Pine Lane and twenty-five feet from Lake Beebe. Town of Hubbardton Zoning Regulations art. V [hereinafter “Regulations”]. As a result of these setbacks, only a narrow swath of Applicant s’ property between Lake Beebe and Pine Lane is eligible for development in conformance wit h the Regulations. This “building envelope” is approximately twenty feet wide at its widest poi nt and only ten feet wide at its narrowest point.
5. In fact, Applicants’ existing residence encroaches on each of these setbacks. Although the precise extent of the current encroachment is n ot in the record, the site plan sketches indicate that the existing residence is roughly fifteen feet from Lake Beebe and about twenty-three feet from the edge of Pine Lane. Because the residence predates the adoption of zoning regulations and the setback requirements, the Court understands Applicants’ existing residence to be a lawful, preexisting, nonconforming structure. 2
6. Applicants currently use the existing structure on their property as a vacation home. They assert that the existing home “has significant structural deterioration [and] that it is not feasible . . . to rebuild on the existing footprint .” Isabelle DeRoy Aff. ¶ 5 (Nov. 24, 2009).
7. Mrs. DeRoy’s Affidavit does not provide details as to why the structural deterioration to their existing home cannot be addressed by repairin g or rebuilding the structure. We have not been made aware of what detail, if any, was incorpo rated into Applicants’ feasibility analysis. We do note, however, that in an unsigned and not no tarized written statement submitted as part of the original applications in support of their va riance request, Applicants noted that “the current home has a failing foundation, mold is evid ent in the basement, there is evidence of water in the basement, [and] the roof structure and ridge are sagging showing signs of failure.” Unsigned Attach. to Permit Applic. # 1119 and # 111 8, at 1 (December 31, 2008). These defects appear substantial, but we are left to wonder how t he costs to repair these defects compares to the

2 The Court has not been provided with a complete c opy of the Town Zoning Regulations, but we note tha t statewide precedent allows most lawful, preexisting nonconforming structures to continue, with reasona ble repairs, so long as their degree of nonconformity is not inc reased. See DeWitt v. Brattleboro Zoning Bd. of Ad justment , 128 Vt. 313, 319 (1970) (“While nonconforming buildings and uses existing at the time the zoning restricti ons become effective cannot be prohibited, they are subject to reasonable regulations under the police power to p rotect the public health, safety, welfare or morals.”); see also 24 V .S.A. § 4412(7) (outlining the municipal authority to regulate nonconformities).3

estimated cost to build the new home, which is list ed in the house variance application as $500,000.
8. Applicants offer no specific evidence on the costs of repairing or replacing their existing home at or near its current location. They additio nally make no claim that the current state of their vacation home prohibits any reasonable use of their property.
9. Applicants further maintain that rebuilding within the building envelope defined by the zoning setbacks is impossible because its narrownes s does not allow for construction of a
conventional home. It would force them to construc t a home that is not practical, results in a significant reduction in living area, and hinders t he future sale of the property.
10. In December 2008, Applicants submitted to the ZBA t wo permit applications that included requests for variances from the forty-foot Pine Lane setback.
11. By their permit application and variance request #1 118, Applicants sought permission to construct a new residence to replace their preexist ing home. The proposed relocated residence on their property would increase the square footage of their residential structure from approximately 768 square feet to 1,344 square feet.
12. As a result of the relocation, the proposed residen ce would no longer encroach on the twenty-five-foot lakeshore setback. It would, howe ver, continue to encroach on the forty-foot setback from Pine Lane. The new building would be approximately 15.5 feet from the center of Pine Lane, placing it roughly 6 feet from the edge of the right-of-way and increasing the encroachment by roughly 17 feet.
13. By their permit application and variance request #1 119, Applicants sought permission to construct a new 574-square-foot garage located enti rely within the forty-foot setback from Pine Lane, situated approximately eleven feet from the n earest edge of the right-of-way. 3 Applicants seek to construct this garage in order to provide e nclosed parking for vehicles during the winter months, as they wish to use their residence as more than a summer vacation home. Their current residence does not include a garage.
14. The DRB held a hearing on the applications on Janua ry 13, 2009, and the next day granted Applicants a permit and variance for each o f the proposed projects. Mr. Kowalski, who

3 Applicants’ permit application indicates that the proposed garage is eleven feet from the center of P ine Lane, placing the garage one foot from the edge of the tw enty-foot-wide right-of-way, but the site plan sket ches appear to indicate that the proposed garage is eleven feet fr om the edge of Pine Lane.4

owns a property adjacent to Applicants that is also accessed by Pine Lane, timely appealed that
decision to this Court.

Discussion
Applicants propose to tear down their existing vaca tion home and construct an entirely new and larger residence in a different location on their property. They also propose to construct a new detached garage. It is undisputed that both proposed structures will encroach upon the forty-foot front-yard setback from Pine Lane, there by necessitating a variance for each project. The only issue raised in this appeal is whether App licants’ two projects qualify for a variance. Mr. Kowalski has moved for summary judgment, conten ding that neither Applicants’ proposed residence nor the proposed garage satisfies the sta tutory variance criteria outlined in 24 V.S.A. § 4469(a). Applicants disagree, maintaining that b oth of their projects meet all of the criteria.
Summary judgment is only appropriate “when the reco rd clearly shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”
Madkour v. Zoltak , 2007 VT 14, ¶ 12, 181 Vt. 347 (quoting Bacon v. L ascelles , 165 Vt. 214, 218 (1996); see also V.R.C.P. 56(c)(3). In applying th is standard, we consider the facts presented in the light most favorable to the nonmoving party, gi ving them the benefit of all reasonable doubts
and inferences. Id ; In re Miller Subdivision Final Plan , 2008 VT 74, ¶ 8, 184 Vt. 188 (citing
Peerless Ins. Co. v. Frederick , 2004 VT 126, ¶ 10, 177 Vt. 441). With these stan dards in mind, we turn to the sole issue on appeal.
Variances, by their very nature, contravene the goa l of zoning. They are “individual exceptions to generally applicable rules of zoning, the purpose of which ‘is to bring about the orderly physical development of the community.’” I n re Mutschler , 2006 VT 43, ¶ 7, 180 Vt. 501 (mem.) (quoting In re Maurice Mem’ls , 142 Vt. 532, 535 (1983)). They act as “an escape hatch from the literal terms of an ordinance which, if strictly applied, would deny a property
owner all beneficial use of his land and thus amoun t to confiscation.” Id . (quoting Lincourt v. Zoning Bd. of Review , 201 A.2d 482, 485–86 (R.I. 1964)). As a result, a landowner has the steep burden of proving that a variance is warrante d. L.M. Pike & Son, Inc. v. Town of
Waterford , 130 Vt. 432, 435 (1972). A landowner must show t hat: (1) There are unique physical circumstances or cond itions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particula r property, and that unnecessary5

hardship is due to these 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 cond itions, there is no possibility that the property can be developed in strict confor mity 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 th e appellant. (4) The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is l ocated, substantially or permanently impair the appropriate use or developme nt 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 deviatio n possible from the bylaw and from the plan. 24 V.S.A. § 4469(a)(1)–(5). Indeed, this is a high burden, because if a zoning variance is to be granted, it “must be based on a showing of conformance with each of the five statutory criteria.”
In re Dunnett , 172 Vt. 196, 200 (2001) (quoting Blow v. Town of Berlin Zoning Adm’r , 151 Vt. 333, 335 (1989)). “If just one criterion is not sa tisfied[,] the variance must be denied.” In re Ray Reilly Tire Mart , 141 Vt. 330, 332 (1982).
In his pending motion, Mr. Kowalski first maintains that neither project deserves a variance because Applicants do not experience an un necessary hardship, contending that Applicants cannot satisfy the first criterion. See 24 V.S.A. § 4469(a)(1) (“There are unique physical circumstances or conditions, . . . and tha t unnecessary hardship is due to these conditions . . . .”). Applicants counter that an u nnecessary hardship results from the application of the forty-foot setback from Pine Lane and the tw enty-five-foot setback from Lake Beebe; they explain that imposition of the two setbacks yields a building envelope that is only twenty feet wide at its widest part. Such a narrow building en velope significantly hampers construction of a
conventional residence and therefore creates an unn ecessary hardship.
We agree with Applicants that a narrow building env elope creates a sufficient physical condition to constitute an unnecessary hardship. A s this Court has previously explained, a “lot without a sufficiently buildable area when all the setbacks are applied” is a hardship that may justify a variance. In re Handy , No. 96-6-01 Vtec, slip op. at 2 (Vt. Envtl. Ct. M ay 6, 2002)6

(Wright, J.); see also Damico v. Zoning Bd. of Adju stment of the City of Pittsburg , 643 A.2d 156, 163–64 (Pa. Cmwlth. Ct. 1994) (finding an unne cessary hardship where adherence to setbacks would require a building of only ten feet wide). When viewing the existing facts in a light most favorable to Applicants, we therefore co nclude that Mr. Kowalski has not demonstrated as a matter of law that Applicants do not suffer an unnecessary hardship.
We also conclude, based on the current record, that Applicants have not created this hardship and have therefore satisfied the third var iance criterion for purposes of avoiding summary judgment. See 24 V.S.A. § 4469(a)(3) (“Unn ecessary hardship was not created by the [landowner].”). The existing record reveals that A pplicants’ current residence predates the adoption of zoning in the Town, which indicates tha t the narrow building envelope originated from circumstances beyond Applicants’ control. Acc ordingly, we cannot conclude at this stage of the proceedings that the aforementioned hardship was created by Applicants. See In re
Fecteau , 149 Vt. 319, 321 (1988) (explaining that the “[h] ardship must originate from circumstances beyond the control of the property ow ner” (citing Pollard v. Zoning Board of Appeals , 186 Conn. 32, 39 (1982))); In re Ray Reilly Tire Mart, Inc. , 141 Vt. 330, 333 (1982) (“[T]here must be an affirmative act by the applica nt which created the hardship peculiar to the property involved.”).
We similarly conclude that Mr. Kowalski has not dem onstrated that Applicants’ proposed projects will “alter the essential character of the neighborhood,” impair development or use of adjacent properties, or “be detrimental to the publ ic welfare.” 24 V.S.A. § 4469(a)(4). Applicants propose to construct a single-family res idence and a detached garage in a neighborhood comprised of similar structures of var ious sizes. Because there is no evidence that either the garage or the residence will alter the e ssential character of the neighborhood, Applicants have satisfied criterion four for purpos es of avoiding summary judgment.
The evidence present before us, however, even when viewed in a light most favorable to Applicants, indicates that they cannot satisfy the remaining variance criteria for either of their proposed projects. For instance, Applicants are un able to fulfill criterion two, which requires a showing that “there is no possibility that the prop erty can be developed in strict conformity with the provisions of the bylaw, and that the authoriza tion of a variance is therefore necessary to enable the reasonable use of the property.” 24 V.S .A. § 4469(a)(2). Applicants cannot meet this7

requirement as a matter of law because they present no evidence that complying with the zoning regulations is impossible, and the undisputed facts indicate that Applicants do not need a variance to make reasonable use of their property.
Beginning with the proposed residence, Applicants d o not maintain that there is no possibility of constructing a new residence entirel y within the building envelope. Applicants only contend that constructing within the narrow bu ilding envelope makes it “difficult to design a functional structure” and conventional home. App licants’ Mem. in Opp’n at 3. Although such a design may be difficult, Applicants have the burd en of showing that that there is “there is no possibility

that the property can be developed in strict conformity with the provisions of the zoning regulation.” Gadhue v. Marcotte , 141 Vt. 238, 240 (1982) (quoting the predecessor to 24 V.S.A. § 4469(a)(2)). Applicants have not met this burden because they offer no evidence that compliance with the regulations is impossible.
More importantly, there is no dispute presented tha t Applicants currently use the singlefamily residence on their property as a vacation ho me. Applicants are therefore making a reasonable use of their property without a variance . It is axiomatic that a variance is unnecessary to enable a reasonable use when the property has an existing reasonable use. See, e.g., In re
Dunnett , 172 Vt. 196, 200 (2001) (denying a variance becau se a reasonable use of the property existed without it). Applicants offer no evidence as to why the existing residence prohibits the reasonable use of their property or why a variance is necessary to enable a reasonable use.
Furthermore, Applicants provide no evidence that th eir existing single-family residence cannot be repaired and continued without a variance ; they only suggest that significant structural damage prohibits rebuilding an entirely new residen ce on the same footprint. Without a
demonstration that the current residence cannot be repaired or reconstructed, we have no basis to conclude that a variance for an entirely new reside nce is the only way to make reasonable use of the property. See Blow v. Town of Berlin Zoning Ad m’r , 151 Vt. 333, 336 (1989) (denying a variance because the party’s stipulation “show[ed] nothing about whether an alternative development [was] possible without the variance”).
Applicants encounter a similar deficiency with resp ect to the proposed garage. They maintain that a variance is necessary for the garag e because they want an enclosed parking area in the winter. However, such a setback variance is unnecessary to enable the reasonable use of8

Applicants’ property, particularly when the propert y is currently used as a single-family vacation residence. We are directed to deny a variance “if any reasonable use can be made of the property which is in strict conformity with the zoning regul ations.” Gadhue v. Marcotte , 141 Vt. 238, 240 (1982) (emphasis added). While a garage would be a comfort in our winter climate, we have not been presented with evidence of why a garage is a n ecessity here; and the lack of a garage does not preclude the reasonable use of Applicants’ prop erty. See, e.g., McClintock v. Zoning Hearing Bd. of Fairview Borough , 545 A.2d 470, 452 (Pa. Cmwlth. Ct. 1988) (denying setback variance to build a garage because the lot was alre ady developed with a single-family home and the landowner presented no evidence that property c ould not be used within existing space requirements).
Even when viewing the facts in a light most favorab le to Applicants, Applicants’ presentation fails to demonstrate that a variance i s necessary for each project in order to make reasonable use of their property. Mr. Kowalski has therefore established as a matter of law that Applicants cannot comply with the second variance c riterion.
Mr. Kowalski has also demonstrated that Applicants are unable to meet criterion five for both proposed projects, which requires a showing th at the variance “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)(5). For the f ollowing reasons, Applicants cannot meet this requirement as a matter of law.
To begin, Applicants inappropriately justify their need for a variance for both proposed projects. Regarding the proposed residence, they c ontend that a variance is necessary because the narrow building envelope makes designing a conv entional home difficult. It would force them to construct a home that is not practical, res ults in a significant reduction in living area, and hinders the future sale of the property. Applicant s likewise seek a variance for the proposed garage because it is the only way to construct an e nclosed parking area for use during the winter. In other words, Applicants seek two variances for r easons of convenience. The Supreme Court has consistently explained that “variances justifie d in terms of personal convenience or maximizing the profitable use of property were not the minimum necessary for relief.” In re
Mutschler , 2006 VT 43, ¶ 11, 180 Vt. 501, 505 (mem.) (citing examples). Accordingly, we must conclude that Applicants are unable to satisfy the fifth variance criterion for either proposal.9

While this conclusion is sufficient grounds to deny Applicants’ two variance requests, we also note that Applicants have presented no evidenc e that the variances represent the least deviation possible from the zoning regulations. Wi th regard to the proposed residence, Applicants defend the requested variance by arguing that the relocation eliminates the existing setback encroachment on Lake Beebe. According to A pplicants, this design avoids negatively impacting the view of the lakeshore and protects th e lakeshore to a greater extent than it is being protected by the current structure. We applaud the se concerns. However, Applicants ignore the fact that this proposed expansion/relocation increa ses the encroachment on Pine Lane significantly. The proposed residence is located r oughly six feet from Pine Lane, approximately
seventeen feet closer than the current residence. In fact, because the proposed residence is almost 600 square feet larger than the existing res idence, it appears from the site plan sketches that the proposed encroachment area is larger than the two pre-existing encroachments combined, ultimately increasing the degree of nonco nformity. With this in mind, Applicants are also unable to demonstrate that the proposed reside nce represents the least deviation from the setback requirement that is possible under the circ umstances. Likewise, Applicants’ proposed garage does not repr esent the least deviation possible
from the Pine Lane setback because it is located en tirely within the forty-foot setback. The site plan sketches indicate that the proposed garage cou ld be moved farther from Pine Lane and still maintain compliance with the Lake Beebe setback. T his would decrease the encroachment on Pine Lane and locate the garage partially within th e existing building envelope. According to Applicants, placing the garage farther from Pine La ne would require fill and support structures to be built close to the bank of Lake Beebe, which wou ld spoil the view of the lakeshore. However, Applicants overlook the fact that any support struc tures could be placed within the building envelope and nonetheless comply with the twenty-fiv e foot lakeshore setback imposed by the zoning regulations. Even though the garage may be more visible from the lake, the design would therefore result in greater conformance with the zo ning requirements. Accordingly, Applicants proposed garage design does not represent the least deviation possible from the zoning regulations.
We therefore conclude that the undisputed facts, ev en when viewed in a light most favorable to Applicants, indicate that not all five of the variance criteria can be satisfied. In so doing, we acknowledge the difficulty Applicants wil l experience in designing a new residence10

that fits within the existing building envelope or otherwise meets all five of the variance criteria. In order to obtain “relief by way of variance,” how ever, “the statute governing its granting must prevail, rather than a judicial finding indicating, at best, general desirability.” Sorg v. North Hero Zoning Bd. of Adjustment , 135 Vt. 423, 427–28 (1977). 4 Because Applicants cannot fulfill each of the statutory variance criteria, we are com pelled to GRANT Mr. Kowalski summary judgment and to DENY both of Applicants’ variance requests.

Conclusion For all the reasons more fully discussed above, we GRANT Mr. Kowalski’s motion for summary judgment, concluding as a matter of law tha t Applicants are unable to satisfy all five of the statutory variance criteria outlined in 24 V.S. A. § 4469(a), even when viewing the facts in a light most favorable to them. The undisputed facts indicate that both variances are unnecessary to enable the reasonable use of Applicants’ propert y and that the requested variances are not the minimum that will afford relief. Applicants’ appli cations for a permit and variance to construct the proposed residence (application #1118) and the proposed garage (application #1119) are
therefore DENIED

. In view of the foregoing, the trial in this matter, previously set for March 3, 2010 in Rutland District Court, and the final pretrial conf erence, previously set for February 18, 2010 at 9:00 A.M., are both cancelled. A Judgment Order accompanies this Decision. This co mpletes the current proceedings before this Court concerning this appeal.

Done at Newfane, Vermont, this 16th day of February 2010.

___________________________________ Thomas S. Durkin, Environmental Judge

4 We note here that our Legislature has authorized m unicipalities like Hubbardton to circumvent the str ict requirements of variances in the event that duly en acted setback limitations impede desirable developm ent. If a municipality so chooses, it can establish procedure s to “grant waivers to reduce dimensional requireme nts, in accordance with specific standards that shall be in conformance with the plan and the goals set forth in [the Vermont Planning and Development Act].” 24 V.S.A. § 4414(8 )(A). However, the Town of Hubbardton has not pres ently elected to adopt any waiver provisions, leaving us to assess Applicants’ proposals for compliance with the statutory variance criteria.