In re Barry, 2011 VT 7
For the past seventy years, a house on a half-acre has stood in the Town of Orwell on the shores of Lake Champlain. Built in 1941, the house was—in those wild and wooly days before zoning—built 12 feet from the lakeshore. In 1971, Applicants’ parents bought the house and began using it as a fishing camp and vacation house. In 2006, the Applicants inherited the house from mom and dad, and put it into an LLC, named Clyde’s Place.
Now the fun begins. After 65 years sitting practically in the lake, the house is a little worse for the wear and needs rehab. Scratch that. It needs to be rebuilt. So Applicants meet with the first in a rotating cast of interim zoning administrators from the Town. Zoning Administrator #1 visits the site and agrees that the family can rebuild on the site and, in a little bit of zoning-on-the-fly, reviews a sketch plan that the Applicant literally draws at the meeting. Zoning Administrator #1 gives the thumbs up to the new house to be built on the old footprint, but he suggests that they should remove the proposed giant stick figure next to the “me” and the arrow sign.
Before anything else can happen, though, Zoning Administrator #1 is suddenly terminated, and Zoning Administrator #2 enters the stage. Zoning Administrator #2 carries the process further, and begins the application process. Like Zoning Administrator #1, Zoning Administrator #2 is supportive of the proposal, and she quickly accepts and approves Applicant’s proposal. No further sketch plan is submitted, and Zoning Administrator #2 indicates that she believes the only setback issue is with the lakefront access, which she does not see as a problem.
At this point, SCOV stage directions note that Zoning Administrator #2 leaves the play never to be heard from again, and Zoning Administrator #3 takes the field. At the same time, Applicants began construction of the new house, which uses cantilevered posts to expand the house substantially beyond the limits of the foundation. Basically, Applicants restore the original footprint, but then they do everything they can to expand the size of the house beyond the ground.
Zoning Administrator #3, perhaps hoping to make his tenure last longer than his predecessors, gets word of the project and scrutinizes it closer. He finds that jutting porches and rooms that create a footprint well over what was there before. On this basis, he claims that the project violates setbacks. Zoning Administrator #3 sends the dreaded Notice of Violation.
On appeal to the Environmental Court, and later to the SCOV, the Town has a great deal of trouble backing away from Zoning Administrator #2’s permit granting Applicants the right to tear down and rebuild the house. Town points out that there were several procedural and substantive flaws in the permit, and it was improperly granted. The E-Court and later SCOV hold fast to the permit, noting that no one challenged or appealed the permit, and it became final—flaws, warts, and all. Thus, each court’s analysis begins with the premise that the permit is valid and any dispute must be governed by the terms of the permit.
This is a steep hole for the Town to build out of as the permit is loosely worded and puts no conditions or controls the Applicants. The Town must prove that Applicants have exceeded the terms of their permit, but under the terms, the Applicants could build a cantilevered mansion so long as its actual point of contact with the ground was limited to the old footprint. And indeed, Applicants appear to have done something similar.
Where the E-Court and the SCOV part company is in the definition of the phrase “built over the existing footprint.” The E-Court views Applicants’ actions as an attempt to circumvent the limited square footage of the permit by building a house that looks like a bouquet of flowers standing on a single point. For the E-Court, creating additional floor space violates the intent of the permit’s language which only permitted construction over the original footprint. This is enough to support the Town’s Notice of Violation.
Not so fast says SCOV. All of the terms that the E-Court relied upon to make its determination are ambiguous, and the rule of interpretation in zoning permits requires the court to read ambiguity in favor of the Applicant. Therefore, concludes SCOV, Applicants are free to build their dream vacation home so long as its additional parts do not touch the ground.
The SCOV reverses the E-Court decision and enters judgment in favor of Applicants, who can now build their dream second home on the lake.
For any would-be zoning attorneys out there, take care to read this case carefully. It is a case driven by its facts. First and foremost, it is a case about the terms of a permit and the ability of a Town to stop a landowner who has a permit. The SCOV states that towns cannot seek to impose their own interpretation simply because the terms are ambiguous or that the project represents the expansion of a non-conforming use.
In the end, the SCOV sides with the landowner and allows construction to continue. It does so because the time to question or impose conditions on a permit comes before the permit is issued. Quibbling afterwards about the terms and their meaning is too little too late.
Surprisingly, Applicants are not the only people to use this style of building to take advantage of the feature, but they are certainly the latest in the state to profit from vested rights and who will enjoy a permit for a new house in the setbacks.
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