1 STATE OF VERMONT SUPERIOR COURT, ENVIRONMENTAL DIVISION } } In re Losier Variance Application } Docket No. 79-4-08 Vtec } }

Decision on Cross-Motions for Summary Judgment

This matter arose after John and Paulette Losier (“ Applicants”) constructed a detached garage on their property, the easterly peak of whic h measures roughly thirty-five feet above the ground. The Town of Maidstone Zoning Administrator issued Applicants a notice of violation for constructing a building that exceeded the twent y-six-foot height limitation in the Maidstone Lake Zoning District (“Lake District”); Applicants then applied for a variance for their as-built structure. The Town of Maidstone Zoning Board of A djustment (“ZBA”) denied the variance request, and Applicants subsequently appealed to th is Court. Applicants are represented by Oliver L. Twombly, Es q.; the Town of Maidstone (“Town”) is represented by William P. Neylon, Esq.; Interested Persons Brenda J. Tilton and Norman A. Vanshaw have also appeared in this appeal , representing themselves. Now pending before the Court are two cross-motions for summary judgment. Applicants request that the Court summarily void the ZBA’s dec ision as being rendered by an improperly constituted two-member ZBA, ultimately asking that their variance application be deemed approved. The Town argues in opposition that Appli cants’ motion is untimely, and has filed a motion for summary judgment requesting that Applica nts’ variance request be denied as a matter

of law. The Interested Persons have chosen not to submit a memorandum in response to the pending cross-motions.

Factual Background & Procedural History For the sole purpose of putting the pending motions into context, we recite the following facts, which we understand to be undisputed unless otherwise noted:

1. Applicants own Lot 51A on West Side Road in the Lak e District of the Town. Their property is relatively narrow; it is about 260 feet deep, with approximately 100 feet of frontage on Maidstone Lake and about 50 feet of frontage on West Side Road. Applicants’ property is also fairly steep, as it slopes easterly toward the Lake.2

2. Sometime before December 2006, Applicants submitted an application for a zoning permit, seeking approval to construct a retirement home on their lakeshore property.

3. According to the permit application, Applicants’ so ught approval to construct two buildings: an L-shaped camp located near the lakesh ore, and a detached garage located upslope. Applicants’ proposed camp, which is not the subject of this appeal, would replace the property’s existing camp; the two bedroom residence would sit in the same footprint as its predecessor.

4. At issue in this appeal is the detached garage, whi ch would be twenty-eight-feet square and would include a one-bedroom apartment on the up per level. It would have plumbing and electricity, but no cooking facilities.

5. Although the zoning permit application form does no t require an applicant to indicate the height of any proposed buildings, Applicants noted on their application that the detached garage was intended to be a story and one-half, with dorme rs. Drawings submitted as part of the application suggest that the detached garage would rise to a height of twenty-five feet above the building’s foundation. 1

6. The Zoning Administrator approved the Applicants’ a pplication on December 22, 2006, and issued Zoning Permit No. 06122201. Underneath his signature, the Zoning Administrator included a reference to the height requirements in the Lake District, which limits the height of buildings to twenty-six feet. Accordingly, the Zon ing Administrator noted: “REF: 26’/HEIGHT AS DEFINED IN ZONING HANDBOOK [ADOPTED ON] 7/8/2002 .”

7. Applicants’ construction timeline is somewhat uncle ar from the record. It appears that construction on the project site may have begun as early as October 2006, three months before the issuance of Zoning Permit No. 06122201. Applic ants completed constructing the roof of the detached garage in January 2007, and the structure was fully enclosed and nearly complete by July 2007.

8. The completed garage rises roughly twenty-five feet above its foundation, but because Applicants’ property slopes downward as it approach es the Lake, the foundation on the easterly side of the building is exposed. As a result, the easterly peak of the garage’s roof rises nearly thirty-five feet above the ground.

1 Applicants argue that these drawings communicate A pplicants’ intent to construct a garage the peak of which measures 28’5” above the ground. The record does n ot support such a conclusion. Rather, the drawings indicate that the garage would rise only twenty-five feet ab ove its foundation. The drawings depict a building 28’5” tall only when the foundation is included in the measurement.3

9. On July 6, 2007, the Zoning Administrator served Ap plicants with a notice of violation, which alleged that the easterly side of garage exce eded the Lake District’s maximum height limitation. The Bylaws specify in § 203 a maximum allowable height of twenty-six feet “from ground to peak of roof,” and the Zoning Administrat or determined that the building’s easterly peak was approximately thirty-six feet above the gr ound.

10. Applicants thereafter submitted to the ZBA an appli cation for a variance from the twentysix-foot height limitation. The variance applicati on is not included in the record thus far provided, but Applicants expressly asked for a vari ance and set forth the reasons for their request in a letter to the ZBA dated September 17, 2007. 2

11. Applicants do not dispute the need for a variance. Indeed, Applicants concede that the easterly peak of the garage measures 34’7” above th e ground. Applicants are quick to point out, however, that the easterly peak is only 25’6” above the foundation.

12. Meanwhile, Applicants proceeded with designing a se ptic system for the property, the location of which had not yet been determined. Onc e the garage had been sited, Applicants were limited in choosing a location for the septic syste m. Applicants represent that, due to State requirements, the only feasible location was the ea sterly side of the garage, between the newly constructed garage and the planned location of the camp. Applicants received State approval for their septic system on December 11, 2007, as eviden ced by Wastewater System and Potable Water Supply Permit No. WW-7-2367. The record does not reveal the date on which the septic system was installed.

13. On February 28, 2008, the three-member ZBA conducte d a public hearing on Applicants’ variance request, but they adjourned without reachi ng a decision on the application. Sometime after the February hearing and before the ZBA rende red its decision, one member of the ZBA resigned his position, leaving a two-member ZBA to act on Applicants’ variance request. 3

14. On March 6, 2008, the two remaining ZBA members com pleted their deliberations, ultimately reaching a consensus to deny the Applica nts’ variance application. Applicants received notice of the variance denial by mail on A pril 7, 2008.

2 The September 17 letter also communicates Applica nts’ desire to appeal the notice of violation, but nothing in the record indicates that Applicants took the proper st eps to formally appeal the alleged violation. The record also fails to reveal whether the Town took any action on the n otice of violation.

3 The parties dispute when the third ZBA member act ually resigned his position. However, the undisput ed facts indicate that this member resigned prior to the ZBA rendering its decision on Applicants’ application.4

15. Applicants timely appealed the ZBA’s decision to th is Court on April 28, 2008, seeking approval of their variance application. 4

16. Applicants provide no affidavits in support of thei r motion for a summary approval of their variance request. In their filings, however, Applicants contend that the as-built structure cannot be brought into compliance without a varianc e. Fill cannot be placed below the easterly peak without damaging the functionality of the sept ic system or obstructing vehicular access to the third and fourth garage doors on the easterly s ide of the garage; and the pitch of the roof cannot be changed without adversely affecting the r oof’s ability to shed snow. While Applicants maintain that the steepness of the property require d an exposed foundation on the easterly side, Applicants provide no explanation as to why the pro perty could not have been leveled prior to construction. They fail to explain why conditions on the property necessitated building a garage, with four garage doors and an apartment above, whic h rises nearly thirty-five feet above the ground on its downward, lake-facing side.

17. By previous pretrial motion filed June 1, 2009, App licants requested this Court deem the variance application approved, arguing that the two -member ZBA was improperly constituted

and therefore failed to render a valid decision on the application. See 24 V.S.A. § 4464(b)(1) (“[F]ailure of the panel to issue a decision within [45 days of adjournment] shall be deemed approval and shall be effective on the 46th day.”). We declined to grant Applicants’ previous motion, concluding that the deemed approval remedy was inapplicable to a situation where two members of the three-member ZBA resolved to deny th e application in a timely fashion. In re Losier Variance Application , Nos. 79-4-08 Vtec & 233-10-08 Vtec, slip op. at 7 –8 (Vt. Envtl. Ct. Nov. 5, 2009) (Durkin, J.). In short, we determine d that “[a]pplying the remedy of deemed approval would directly contravene the doctrine’s p urpose and transform a negative decision into a positive one.” Id . at 8. Having resolved all pretrial motions, the matter was scheduled to proceed to a hearing on the merits.

4 In addition to the arguments addressed herein, Ap plicants also appear to contend that the Town autho rized the construction of a building nearly thirty-five feet tall by issuing Zoning Permit No. 06122201. Not on ly do the facts suggest that, at best, the Town approved a 28’5” bu ilding, but this argument is also immaterial to the pending appeal. The matter currently before the Court invo lves Applicants’ application for a variance, and th e merits of the application are not impacted by Zoning Permit No. 0 6122201. In fact, Applicants concede that the peak of the garage measures 34’7” from the ground, and they ack nowledge the need for a variance. Applicants also appear to argue that the Town is engaging in selective enforcement of the Lake Di strict’s maximum height limitation. This argument is also i mmaterial to the pending appeal, as this is not an enforcement proceeding and Applicants did not preserve that add itional issue in their Statement of Questions in th is appeal.5

18. Shortly thereafter, Applicants requested a continua nce of the merits hearing, which was granted by order on November 17, 2009 (“Scheduling Order”). The four paragraph Scheduling Order contained four directives: (1) Applicants wer e directed to submit the variance application by November 30, 2009; (2) the parties were directed to file a joint statement of material facts by the same date; (3) by December 4, 2009, the parties were directed to inform the Court of any

dates that were unavailable for a rescheduled merit s hearing; and (4) the parties were directed to file any remaining pretrial motions by December 30, 2009.

19. Applicants then requested an enlargement of time, s eeking additional time to comply with paragraphs 1 and 2 of the Scheduling Order. A pplicants’ motion was unopposed.

20. This Court granted Applicants’ request by order of December 2, 2009 (“Amended Scheduling Order”), and extended the deadline for p aragraphs 1 and 2 to December 18, 2009. In addition, the Court changed the deadline for paragr aph 3 to January 5, 2010. No reference was made to paragraph 4 concerning pretrial motions.

21. In compliance with the deadlines established in the Amended Scheduling Order, Applicants submitted a list of unavailable dates, a statement of material facts, and Applicants’ letter requesting a variance by December 18, 2009. Applicants then filed another pretrial motion on January 5, 2010, seeking a summary ruling that t he ZBA’s decision is void for failing to comply with 24 V.S.A. § 4460(b). 5 This motion is currently pending before the Court

. 22. Applicants’ pending motion for summary judgment was filed after the December 30, 2009 deadline for pretrial motions, as established in paragraph 4 of the Scheduling Order and unaltered by the Amended Scheduling Order. However , Applicants filed the motion within the Amended Scheduling Order’s deadline for paragraph 3 , concerning availability disclosures.

Discussion Applicants built a detached garage, with an apartme nt above, on their lakefront property, the easterly peak of which measures roughly thirty- five feet above the ground. Applicants then requested a variance from the Bylaws’ twenty-six-fo ot maximum height limitation, but a twomember constituency of the ZBA denied Applicants’ r equest. Applicants thereafter appealed.

5 Applicants pending motion is strikingly similar t o their previous pretrial motion, which the Court a lready denied. See In re Losier Variance Application , Nos. 79-4-08 Vtec & 233-10-08 Vtec, slip op. at 7 –8 (Vt. Envtl. Ct. Nov. 5, 2009) (Durkin, J.). In both motions, Applicants re quest that their variance application be deemed app roved, but in their pending motion, Applicants provide a slightly different basis for applying deemed approval: 24 V .S.A. § 4460(b), which says that a “board of adjustment f or a rural town or an urban municipality shall cons ist of not fewer than three nor more than nine persons.” 24 V .S.A. § 4460(b).6

Currently pending before the Court are two motions for summary judgment. Applicants seek a summary ruling that the ZBA’s decision is void and the variance application is deemed approved. The Town has also filed a motion for su mmary judgment, arguing that Applicants’ variance request must fail as a matter of law becau se they have not satisfied the variance criteria set forth in 24 V.S.A. § 4469(a)(1)–(5). Our review of the pending cross-motions must begin with the reminder that summary judgment is appropriate only “when there are no gen uine issues of material fact and, viewing the evidence in a light most favorable to the non-movin g party, the moving party is entitled to judgment as a matter of law.” In re Carter , 2004 VT 21, ¶ 6, 176 Vt. 322; V.R.C.P. 56(c). “When both parties move for summary judgment, each is entitled to the benefit of all reasonable doubts and inferences when the opposing party’s mot ion is being judged.” City of Burlington v. Fairpoint Commc’ns , 2009 VT 59, ¶ 5 (citing Toys, Inc. v. F.M. Burlin gton Co. , 155 Vt. 44, 48 (1990)). We apply these standards to the issues ra ised by the pending motions.

I. The Validity of the ZBA’s Decision By their January 5, 2010 motion for summary judgmen t, Applicants request this Court to summarily void the ZBA’s decision denying Applicant s’ variance request. Applicants argue that the two-member ZBA was improperly constituted pursu ant to 24 V.S.A. § 4460(b) and, therefore, no ZBA was in existence when the decisio n was rendered. Applicants ultimately request that the variance application be deemed app roved. The Town first opposes Applicants’ motion on the gr ounds that it was untimely filed. The Town contends that the Scheduling Order express ly set December 30, 2009 as the deadline for all pretrial motions, and that deadline was una ltered by the Amended Scheduling Order. Applicants’ pending motion, which was filed on Janu ary 5, 2010, was therefore beyond the deadline for pretrial motions. While the Town is c orrect that the Amended Scheduling Order did not expressly extend the paragraph 4 deadline for p retrial motions, the Court believes that this was an error on its part, and for the following rea sons, accepts Applicants’ pending motion as being timely filed. In the Amended Scheduling Order, the Court granted Applicants’ request to extend the deadlines for paragraphs 1 and 2, which involved fi ling a statement of material facts and filing Applicants’ variance application. Since pretrial m otions would likely rely upon the information covered by paragraphs 1 and 2, the Court believed i t was also necessary to extend the deadline7

for filing pretrial motions. Rather than changing the deadline for paragraph 4, which concerned pretrial motions, the Court inadvertently changed t he deadline for paragraph 3, which concerned disclosures of the parties’ availability. The Cour t sincerely regrets this error. The Court intended to extend the deadline for filing pretrial motions to January 5, 2010. Applicants filed the pending pretrial motion on Jan uary 5, within the Amended Scheduling Order’s deadline for availability disclo sures. Because the Court intended the January 5 deadline to apply to pretrial motions, rather tha n availability, we conclude that Applicants’ motion was timely filed. We therefore proceed to t he merits of Applicants’ motion. By their motion, Applicants seek a summary ruling t hat any decision by a two-member

ZBA is void ab initio because a zoning board must have three members, an d therefore, Applicants’ variance application should be deemed a pproved. Indeed, our law requires that a “board of adjustment for a rural town or an urban m unicipality shall consist of not fewer than three nor more than nine persons.” 24 V.S.A. § 446 0(b). However, for the reasons stated below, we conclude that the remedy for failing to comply w ith § 4460(b) is not deemed approval of Applicants’ then-pending variance request. As we discussed at length in our November 5, 2009 D ecision, our “Supreme Court has consistently declared that technical defects in the decision-making process do not warrant the application of deemed approval.” In re Losier Vari ance Application , Nos. 79-4-08 Vtec & 233- 10-08 Vtec, slip op. at 7 (Vt. Envtl. Ct. Nov. 5, 2 009) (Durkin, J.) (citing cases). The doctrine of deemed approval is reserved for the narrow purpose of remedying “indecision and protracted deliberations” by the zoning board. Id . at 7 (quoting In re Newton Enters. , 167 Vt. 459, 465 (1998)). Here, the parties do not dispute that the two remaining ZBA members resolved to deny Applicants’ variance request. 6 Approving Applicants’ application by operation o f law would not implement the statutory purpose of deemed appro val, but rather, it would transform a negative decision into a positive one. We are caut ioned against such a result. See In re McEwing Servs., LLC , 2004 VT 53 ¶ 21, 177 Vt. 38. Accordingly, we aga in reject the application of the deemed approval doctrine to Appl icants’ variance request.

6 We note here, for informational purposes only, th at a board of adjustment can act upon the concurren ce of the majority of the members of the board. In re Reynol ds , 170 Vt. 352, 354–55 (2000); see also 24 V.S.A. § 4461(a) (“For the conduct of any hearing and the taking of any action, a quorum shall be not less than a major ity of the members of the panel, and any action of the panel s hall be taken by the concurrence of a majority of t he panel.”). A consensus by two members of the ZBA’s three-member board satisfies this requirement.8

By allowing its membership to fall below the statut orily required three members, the ZBA became noncompliant with 24 V.S.A. § 4460(b). The decision denying Applicants’ variance request was therefore defective. But the remedy for such a defect is not deemed approval (a result that would be directly contrary to how the majority of the ZBA voted); the remedy is an appeal to this Court, where an applica nt receives de novo review. See Newton , 167 Vt. at 466 (voiding the zoning board’s decision as being reached by less than the required majority, but rejecting the application of deemed a pproval and directing this Court to review the merits of the permit application). 7

In a de novo appeal, we review the application and supporting m aterials anew, as if no proceedings have taken place before the municipal p anel. In re Killington, Ltd. , 159 Vt. 206, 214 (1992) (citing In re Green Peak Estates , 154 Vt. 363, 372 (1990)). In this sense, the appealed-from decision is treated as a legal nullit y; it is effectively voided by an appeal to this

Court. See id . at 214–15 (explaining a de novo appeal) In a de novo appeal to this Court, an applicant is then given the opportunity to present new evidence and alternative reasons that support the approval of her zoning permit applicati on. Id . at 215. Here, Applicants have appealed the ZBA’s decision, which denied their application for a variance. The Court will review anew, in this de novo appeal, the merits of Applicants’ variance application without regard to the decision below. A decision below that is defective does not change this approach, and for all the reasons expla ined in our November 5, 2009 Decision, deemed approval does not apply to such a defect as is here. 8 Accordingly, we again DENY Applicants’ request to apply the deemed approval re medy and proceed to the merits of Applicants’ variance application.

7 As an alternative to appealing an unfavorable, al beit defective decision, an applicant may ask the m unicipal panel for a continuance of the zoning hearing, which woul d then give an applicant the opportunity to present her application to a fully constituted zoning board.

8 We note here that other jurisdictions vary their a pproach to this legal issue. Compare Stevenson v. Town of Kennebunk , 930 A.2d 1046, 1048–49 (Me. 2007) (concluding tha t the Kennebunk Board of Assessment Review could not legally act when it consisted of only two of the statutorily required three members) with U. S. Vision, Inc. v. Board of Examiners for Opticians , 545 A.2d 565, 568–69 (Conn. App. Ct. 1998) (concl uding that a vacancy on the three-member Board of Examiners for Opticians d id not deprive it from acting) and Hawaii Electric Light Co., Inc. v. Department of Land and Natural Resources , 75 P.3d 160, 172 (Ha. 2003) (concluding that “the total number of members on a board is not reduced by an abstenti on, resignation, or vacancy”.) This is a debate in which this Court should not participate, since our Supreme Cou rt has clearly established that the deemed approval remedy should not be applied in response to procedural def ects, a conclusion that is in accord with two of th e three jurisdictions our research reveals have addressed t his legal issue. Newton , 167 Vt. at 466.9

II. The Variance Request On the merits, Applicants seek a variance from the height limitation in the Lake District because the easterly side of their as-built garage exceeds the twenty-six-foot “Maximum Height in feet from ground to peak of roof.” Bylaws § 203 tbl. 203.03. The Town has moved for summary judgment, contending that no material facts are in dispute and Applicants’ request for a

variance must fail as a matter of law. The Town ma intains that Applicants cannot meet any of the five statutory criteria required to secure reli ef by variance. See 24 V.S.A. § 4469(a)(1)–(5). As is explained more fully below, we agree in part and conclude that Applicants are not entitled

to a variance. 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 unnecessary 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.10

(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). Demonstrating the need for a variance is a high bur den indeed, because a variance “must be based on a showing of conformance with each of the five statutory criteria.” In re Dunnett

, 172 Vt. 196, 199 (2001) (quoting Blow v. Town of Be rlin Zoning Adm’r , 151 Vt. 333, 335 (1989)). “If just one criterion is not satisfied t he variance must be denied.” In re Ray Reilly Tire

Mart , 141 Vt. 330, 332 (1982). With this in mind, we t urn to the record currently before the Court in order to determine whether Applicants can satisfy all five variance criteria. The first variance criterion requires that unique p hysical conditions, such as a narrow lot or steep slopes, create an unnecessary hardship on the landowner. 24 V.S.A. § 4469(a)(1). The steepness and narrowness of Applicants’ lot qualifi es as such a hardship. Applicants’ property slopes easterly toward the Lake, and the resulting decline contributes to the need for a variance because the exposed foundation on the easterly side causes that peak of the roof to exceed the Lake District’s maximum height limit. The remainin g sides of the garage comply with the Lake District’s height requirements because the foundati on is not exposed beyond a foot or so. The demonstrated hardship is therefore the result of un ique physical conditions, not conditions generally created by the Bylaws; Applicants have sa tisfied criterion one. 9

To satisfy the second variance criterion, Applicant s must demonstrate that “[b]ecause of these physical circumstances or conditions, there i s no possibility that the property can be developed in strict conformity with the provisions of the bylaw.” 24 V.S.A. § 4469(a)(2). The variance must be “necessary to enable the reasonabl e use of the property.” 24 V.S.A. § 4469(a)(2). For the reasons stated below, we con clude that Applicants cannot make either of these showings as a matter of law. Applicants fail to present any evidence that their property generally, nor their new garage in particular, could not have been developed in con formance with the height requirements in the Lake District. Applicants have not provided any ex planation as to why they had to cut into the slope so dramatically; had they not done so, they c ould have avoided exposing the easterly

9 It appears, however, that Applicants have exacerb ated this hardship by cutting into the slope of the bank, so that the easterly side of their new garage can accommoda te the third and fourth garage doors in the basemen t of this structure. The slope cut causes a much greater por tion of the garage foundation to be exposed than th e adjacent northeasterly and southeasterly corners of the stru cture.11

foundation in its entirety. Further, nothing in th e record suggests that the apartment over the garage could not have been constructed in accordanc e with the twenty-six-foot height limitation. While it may be true that changing the pitch of the roof would affect its snow-shedding capacity, there is no evidence to suggest that the conditions on the property necessitated a structure that rises 34’7” tall. Applicants could have built a ro of with the desired pitch had they not also constructed an apartment above the garage. Applicants make compelling arguments that the nonco nformity cannot now be corrected without substantial financial hardship, thereby imp lying that there is no possibility the property can be developed in conformance with the Bylaws. They argue that fill can no longer be used to raise the grade in front of the garage’s nonconform ing peak, because such fill would adversely impact the functionality of the property’s septic s ystem, which was placed immediately adjacent to the garage. Such fill would also cover the exis ting driveway spur between their two new structures, impeding access to the septic tank and hindering emergency vehicles from accessing their house. We sympathize with Applicants over th eir current predicament. However, the facts in the record before us seem irrefutable: Applicant s created these predicaments by constructing their new, four-bay, three-story garage in contradi ction to the Zoning Bylaws and not in strict conformity to the zoning permit they received. We must review a variance application for an as-bui lt structure as if the construction had not yet occurred. Rowe v. City of South Portland , 730 A.2d 673, 675 (Me. 1999) (examining whether a variance could have been granted pre-cons truction). Any hardship in correcting nonconformities resulting from construction is a co nsequence of proceeding with construction without proper authorization, and the difficulties in correcting the nonconformity are not acceptable reasons in justifying a variance. See D ’Amato v. Zoning Bd. of Adjustment , 585 A.2d 580, 583 (Pa. Commw. Ct. 1991) (“Economic loss occasioned by owners who build structures which do not comply with the zoning requ irements does not justify a variance.”). Otherwise, an applicant could willfully develop a p roperty in violation of the zoning regulations, and then justify the need for a variance by claimin g that the development cannot be removed without substantial hardships. Here, Applicants pr oceeded without authority to construct a garage nearly thirty-five feet tall on its easterly side. It would be inappropriate to consider as justification for a variance any difficulty in now bringing the garage into conformance. Had Applicants complied with Zoning Permit No. 06122201 by constructing a garage that did not12

exceed the height limitation (a limitation the Zoni ng Administrator expressly referenced in the permit), the need for a variance would not have mat erialized. Accordingly, Applicants have failed to demonstrate that there was no possibility of constructing the garage in strict conformity with the Bylaws. More importantly, Applicants have not demonstrated that a variance is “necessary to enable the reasonable use of the property.” 24 V.S .A. § 4469(a)(2). Applicants’ property also contains a three-bedroom camp, which was authorized by Zoning Permit No. 06122201. The permit also authorized the construction of a height -compliant garage. Thus, Applicants already make reasonable use of their property without the r equested variance. A thirty-five-foot tall detached garage, with a secondary apartment above, is not necessary for Applicants’ to reasonably use their property. See, e.g., In re Du nnett , 172 Vt. 196, 200 (2001) (denying a variance because a reasonable use of the property e xisted without it); In re: Legrove and Paznokaitis Variance Application , No. 19-1-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. J uly 15, 2008) (Wright, J.) (denying a variance for a deck because a house was permitted for the property). Even when viewing the facts in a light most favorab le to Applicants, we conclude that Applicants cannot satisfy variance criterion two. Applicants’ failure to satisfy criterion two necess itates denial of their variance application because “[i]f just one criterion is not satisfied t he variance must be denied.” In re Ray Reilly

Tire Mart , 141 Vt. 330, 332 (1982). Therefore, we need not consider the remaining variance criteria to conclude that, even when viewing the un disputed facts in a light most favorable to them, Applicants’ variance application must be deni ed as a matter of law. The record thus far provided reveals that Applicants have demonstrated neither the impossibility of constructing a garage in conformance with the Bylaws nor the neces sity of a variance to enable the reasonable use of their property. In reaching this conclusion , we acknowledge the hardship Applicants must endure in bringing the easterly peak of their as-bu ilt garage into compliance with the Bylaws. However, the difficulty in rectifying a nonconformi ty is not a valid consideration when trying to justify the need for a variance. We are therefore compelled to GRANT the Town summary judgment and to DENY Applicants’ variance request as a matter of law.

Conclusion For all the reasons more fully discussed above, we DENY Applicants’ motion for summary judgment. In so doing, we conclude that th e ZBA’s decision was defective for failing13

to comply with 24 V.S.A. § 4460(b), but the remedy for such a defect is a de novo appeal to this Court, not deemed approval. On the merits of Applicants’ variance application, we GRANT the Town’s motion for summary judgment, concluding that Applicants cannot satisfy all five of the variance criteria as a matter of law, a conclusion we have reached even wh en viewing the material facts in a light most favorable to Applicants. As a result of this decision, there is no need to p roceed to trial. A Judgment Order accompanies this Decision, which completes the curr ent proceedings before this Court concerning this appeal.

Done at Berlin, Vermont, this 13th day of July 2010

.

___________________________________ Thomas S. Durkin, Environmental Judge