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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 110

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LeGrand & Scata Variance Application 

### DECISION ON MOTION

**Decision on Motion for Summary Judgment** This matter concerns the property at 2 Railroad Str eet in Troy, Vermont (“Property”) and the application by Paul LeGrand and Donna Scata (“Applicants”) for a variance to allow installation of a mobile home within both of the si de yard setbacks. Applicants appealed the Town of Troy Zoning Board of Adjustment (“ZBA”) dec ision dated July 22, 2014 denying their application, and filed a Statement of Questions con taining six Questions mirroring the criteria for a variance under 24 V.S.A. § 4469(a). Now befo re the Court is Applicants’ motion for summary judgment seeking judgment as a matter of la w in their favor as to all variance criteria. Applicants are represented in this appeal by Paul S . Gillies, Esq. The Town of Troy (“Town”) is represented by Sara D. Coe, Esq.
**Factual Background** For the sole purpose of putting the pending motion into context the Court recites the following facts which it understands to be undisput ed:
1. Applicants Paul LeGrand and Donna Scata own an appr oximately 8,600 square foot lot at 2 Railroad Street in Troy, Vermont. 1 The Property is in the Village Zoning District.

1 The Town appears to dispute Applicants’ assertion as to lot size, but a close review of the Town’s r epresentations leads the Court to conclude that the parties are no t necessarily in disagreement. In its Statement of Material Facts (filed Dec. 10, 2014), the Town does not dispute Ap plicants’ representation that their property is 0.2 ± acres, or 8,600 square feet in size; rather, the Town represe nts that “the [portion of the] lot that is outside of the roadway is 210’ by 62.35’ by 157.75’,” as depicted on a copy o f a portion of the Town tax map attached thereto as Exhibit A. In reply, Applicants suggest that the Town is as serting that their property is much smaller than th ey represent that it is. We do not see the Town’s representatio ns as contradicting Applicants. Rather, the Town i s suggesting that the Court focus on the usable portion of Appli cants’ property. See In re Bailey, 178 Vt. 614, 615 (2005) (concluding that the portion of an applicant’s prop erty that is occupied by a town roadway may not be regarded as the “lot” to be developed, since “land under a road is already developed and for a use incompatible wi th other uses by the owner”). However, since there is no su ggestion in the pending appeal that Applicants’ pro perty is so undersized as to prohibit development, we decline t o analyze Applicants’ proposed development further under the precedent of Bailey.2

2. The Property is located at the intersection of Rail road Street and Hill Street, with Hill Street forming the northern boundary and Railroad S treet forming the western boundary. See Exhibit A to the Town of Troy’s Statement of Materi al Facts, which is a copy of a portion of the Town of Troy tax map that depicts Applicants’ prope rty.
3. The third boundary of Applicants’ property runs fro m its southern point on Railroad Street to its most easterly point on High Street. Along this southerly boundary is a 49.5±-foot wide parcel of land owned or controlled by the Town ; it is sometimes referred to as Main Street Extension or Cross Street. Although not specifical ly stated by the parties, it appears that Main Street Extension, a/k/a Cross Street, has not yet b een developed or laid out as a town roadway; Applicants represent that the parcel is “not presen tly used by the town for anything more than piling snow plowed northerly from Main Street.” (A pplicants’ Statement of Material Facts (Revised) at 2).
4. At or just south of Applicants’ property, Railroad Street becomes South Street, which then passes by the Town of Troy United States Post Office. Id.
5. According to Applicants’ representation, which the Town does not specifically dispute, the Property is shaped like an isosceles triangle; the two long sides measure 210 feet; one along the border with Hill Street and the other on the bo rder with Main Street Extension. The short side of Applicants’ triangular-shaped parcel measur es 86 feet and is parallel to Railroad and South Streets. The northwesterly corner of the pro perty is located at the junction of Railroad and High Streets and depicts an approximate 90° ang le.
6. Applicants purchased the Property in its current co nfiguration and have not altered its boundaries.
7. A single family dwelling is a permitted use in the Village District.
8. Approximately one-third of the Property, in the are a where Hill Street and Main Street Extension intersect, slopes steeply downwards and a way from the rest of the Property.
9. Applicants seek to install a mobile home on the Pro perty measuring 14 feet by 56 feet. This structure will be sited such that the short en ds are located 30 feet from the Property’s western boundary along South Street (the front yard ) and 50 feet from the eastern boundary where the Property comes to a point along Hill Stre et (the rear yard). The long side of the home closest to Hill Street will be located 25 feet from Hill Street on the western end and 153

feet from Hill Street on the eastern end; the long side closest to Main Street Extension will be located without any setback respected from the sout hern boundary.
10. The setback requirements in the Village District ar e 30 feet for the front yard and 20 feet for the rear and side yards.
11. The proposed location for the mobile home will resp ect the 30-foot front-yard setback and 20-foot rear-yard setback, but will be within t he 20-foot side-yard setbacks by 5 feet on the northern side of the structure at its eastern-most end and by the entire 20-foot setback from the southern side of the structure.
**Discussion** Applicants move for summary judgment in their favor on all six Questions, which mirror the criteria for a variance listed in 24 V.S.A. § 4 469(a). 2 They argue that there are no facts in dispute that are material to the resolution of thos e Questions and that they are entitled to a variance as a matter of law. The Town opposes Appl icants’ motion, arguing that the application does not meet all five criteria listed in 24 V.S.A. § 4469(a). **I. Summary Judgment Standard** The Court will grant summary judgment to a moving p arty upon a showing that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). We must “accept as true the [factual] allegations made in opposition to the motion for summary judgment” and give the non-m oving party the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., I nc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citation omitted); see V.R.C.P. 56(c) (laying out s ummary judgment procedures). If the responding party “fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact,” the Cou rt may “consider the fact undisputed for purposes of the motion.” V.R.C.P. 56(e)(2). The C ourt “need consider only the materials cited in the required statements of fact, but it may cons ider other materials in the record.” V.R.C.P. 56(c)(3).

2 Question 1 in Applicants’ Statement of Questions (filed Aug. 6, 2014) asks the general question of w hether “a variance should be granted to Applicants from minim um setbacks on an undersized, pre-existing, nonconf orming lot.” Applicants’ Statement of Questions at 1. Th e remaining five Questions (Nos. 2 -6) in Applicant s’ Statement of Questions mirror the five criteria of 24 V.S.A § 446 9(a)(1)–(5) and the Town of Troy Zoning bylaws § 51 2(1)–(5).4

**II. Applicants’ Questions** Applicants argue that their application satisfies t he variance criteria prescribed by 24 V.S.A. § 4469(a), which is replicated in § 512 of t he Town of Troy Zoning Bylaws (“Bylaws”). In opposition to their motion, the Town argues that Ap plicants cannot satisfy four of the five criteria and that their motion for summary judgment must therefore be denied as a matter of law. To receive a variance from conformance with applica ble zoning requirements, an applicant must satisfy all five statutorily-establi shed criteria. See Blow v. Town of Berlin Zoning Adm’r., 151 Vt. 333, 335 (1989) (citations omitted) (referencing 24 V.S.A. § 4468(a), which was the predecessor to § 4469(a)). Thus, when an appli cant cannot satisfy any one of the criteria, the variance application must be denied as a matter of law. E.g., In re Ray Reilly Tire Mart, 141 Vt. 330, 332 (1982); see Blow, 151 Vt. at 336. Wit h this standard in mind, we review the variance criteria, which mirror Applicants’ Questio ns: (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, an d not the circumstances or conditions generally created by the provisions of t he 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); Bylaws § 512. The Town specifically contends that Applicants do n ot satisfy criteria (2), (3), (4), or (5). The Town argues that the Property could be develope d in strict conformity with the Bylaws5

because there are both alternative structures and a lternative locations for the proposed structure; that there has been no “unnecessary hard ship” because it was not necessary for Applicants to purchase the Property knowing that th ey may not be able to install the proposed mobile home; that a variance would impair the use o f the adjacent property (Main Street Extension), may be detrimental to the public welfar e, and could place occupants of the home in danger; and that having no setback along Main Stree t Extension is not the minimum variance that will afford relief. In response, Applicants offered no new support for their variance request and do not dispute the factual representations and legal argum ents offered by the Town. There are not sufficient undisputed facts before the Court concer ning whether a structure other than a 14- foot wide by 55-foot long mobile home could be plac ed on the property in conformance with the Bylaws or in such a way that a lesser variance would be required. Next, Applicants did not “create the hardship” that is caused by the unique and narrow shape of this lot by subdividing or otherwise altering the boundaries of the lot. I t is not clear, however, whether Applicants could have avoided this hardship by heeding the adv ice suggested by the Town prior to purchasing this property: that the narrow and trian gular shape may prohibit the development that they hoped to complete. We leave the question of whether or not, given Applicants’ knowledge of the limitations involved in developing this lot prior to the time of purchase, Applicants created the hardship to be determined af ter a complete factual record has been developed. We therefore conclude that, based upon the evidence presented, we cannot grant summary judgment to Applicants on the second and th ird criteria. See 24 V.S.A. §§ 4469(a)(2) and (3); Bylaws §§ 512(2) and (3). The Town does not dispute that Applicants’ property is narrow and somewhat oddly shaped, and that this shape has contributed to the hardship that Applicants now face. Further, Applicants propose to develop their property with o ne single-family residence and the surrounding area has several similar developments. We have not received evidence that the proposed development will alter the essential chara cter of the surrounding neighborhood, impact surrounding uses, reduce access to renewable energy resources, or be a detriment to the public; the Town has merely stated those conclu sions. We therefore conclude that Applicants are entitled to summary judgment as to c riteria 1 and 4. See 24 V.S.A. §§ 4469(a)(1)6

and (4); Bylaws §§ 512(1) and (4), with one reserva tion: in the event that this matter proceeds to trial, Applicants will need to present a respons e to the Town’s assertion that their home, if situated with no setback from Main Street Extension , may impair the appropriate use or development of the Town’s adjacent property or caus e safety concerns. Addressing criterion (5), the Town argues, and we d o not disagree, that the variance will not “represent the minimum variance that will affor d relief and will represent the least deviation possible from the bylaw and from the plan .” See 24 V.S.A. § 4469(a)(5). Although Applicants argue that the structure could not be si ted without violating the side yard setback requirements, this ignores language from criterion (5) that requires a variance to represent “the least deviation possible.” As stated above, Applicants seek to install a mobil e home measuring 14 feet by 56 feet, with its short sides situated 30 feet from Railroad Street/South Street and 50 feet from the Property’s eastern most point near the intersection of Hill Street and Main Street Extension. This placement complies with the front and rear yar d setback requirements of 30 feet and 20 feet, respectively, but places the long sides of th e proposed home inside the 20-foot side yard setbacks from the north and south boundaries. As p roposed, the northern side of the structure, which runs west to east along Hill Stree t, will be situated 25 feet from the Property line at the western end of the structure and 15 fee t from the Property line at the eastern end of the structure. The southern side of the structure, which runs west to east along Main Street Extension, will be situated along the Property line with no setback. Although Applicants allege that this location is th e “best fit for a difficult lot,” it is unclear why the northwest corner of the structure c ould not be pivoted towards Hill Street, thereby reducing the side yard setback on that corn er from 25 feet to 20 feet and increasing the side yard setback along Main Street Extension o n the southwest corner from 0 feet to 5 feet. Such a change would reduce the overall non-c ompliance with the side yard setback by 5 feet, meaning the proposed configuration is not the minimum variance. Viewing the facts in a light most favorable to the Town, since it is the non-moving party, we find that Applicants have failed to demonstrate compliance with criterion (5). It is the Applicants’ burden to prove that their project comp lies with all five variance criteria. See L.M. Pike & Son, Inc. v. Town of Waterford, 130 Vt. 432, 435 (1972); Blow, 151 Vt. at 335 (citations7

omitted). Our Supreme Court has phrased this legal maxim succinctly: “[i]f just one criterion is not satisfied the variance must be denied.” In re Ray Reilly Tire Mart, 141 Vt. at 332. Thus, by failing to satisfy criterion (5), Applicants have f ailed to show that they are entitled to a pre-trial summary judgment as a matter of law. See Boulton, 2003 VT ¶ 5. **Conclusion** For the reasons stated above, although we agree wit h Applicants and therefore **GRANT** summary judgment in their favor on Questions 2 and 5 of their Statement of Questions, we conclude that Applicants have not satisfied all of the criteria in 24 V.S.A. § 4469(a) and Bylaws §512 and are thus not entitled to a variance as a m atter of law. We therefore **DENY** Applicants’ motion for summary judgment. As a consequence of t hese legal determinations, Questions 1, 3, 4, and 6 remain to be resolved at trial.

Electronically signed on May 29, 2015 at Newfane, V ermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Environmental Division