Tuesday, November 25, 2014

Deck, Deck, Use

In re Carrigan, 2014 VT 125

By Elizabeth Kruska

One of my favorite songs is “Go Back To Your Trailer” by the brilliant young country singer/songwriter Kacey Musgraves. The chorus goes (in part):
Keep your two cents
On your side of the fence
Girl, we ain’t friends, we’re just neighbors
This reminds me of a lot of the permitting and zoning dispute cases we read from SCOV, although the case opinions tend to be more full of words and less full of slide guitar. (Note to SCOV: more slide guitar, please. Although, I’m not sure how to make that happen.)

Anyway, as best as I can tell, this is the problem faced by the Carrigans. They bought a camp on or near Lake Champlain in the town of Addison sometime during the Reagan Administration. The camp is located fully within 100 feet of the shoreline, and under the Town’s bylaws, is a “nonconforming structure.” Whether the camp was there first or the rules were there first, I’m not sure. I’m guessing the camp predates the bylaws.

The Carrigans decided they’d put a deck on the camp (again, in the early 1980s). The deck project added a 10 foot deck to the back of the camp building. While they were at it, the Carrigans replaced a concrete platform, a retaining wall and stairs (I’m guessing heading down to the lake), and put a deck onto the retaining wall. This is an unattached deck, in that it’s not attached to the house. I learned a lot of things about decks from this opinion.

Then nothing happens for 20 years.

In 2003, the Carrigans applied for a permit so they could put a roof on the 10 foot deck attached to the house. Their builder, for whatever reason, also suggested they add walls to that deck, but they didn’t ask for a permit for the walls.

In 2004, some people bought a neighboring property.

In 2010, the Carrigans applied for a permit to build another deckthis one unattachedto abut the 1984 deck (which now has walls). I’m having a hard time envisioning all these decks, but I’m thinking that the original deck ended up being a room of some sort, and they decided they’d like to have a deck again, so they decided to build a deck next to the original one. I could be totally wrong. Anyway, in 2012, the neighbors complained about the enclosed deckthe one that got the roof and builder-suggested walls in 2003. 

When the neighbors took their two cents over their side of the fence, the Town realized there was an un-permitted deckthe one from the retaining wall from 1984that had to come down. So the Carrigans removed it. But wait, there’s more. The neighbors also complained that the Carrigans had yet another deck on a different side of their house, and because of that, it brought the whole living structure even further out of compliance of the 100’ setback rule. The Carrigans applied for a variance, which was denied. The Town instructed them to detach that part of the deck, so they did. The Town gave them a certificate of occupancy for the whole big deck.

You’d think this would be the end of it. You’d be wrong.

The neighbors appealed the Town’s decision to the Environmental Court. The Environmental Court upheld the Town and said three things. First, the detached deck was fine, because once the Carrigans removed the old deck on the retaining wall there was only one detached deck on the property and that’s ok under the bylaws. Second, the deck on the back, which joined the deck on the side was actually one single, detached deck, and is ok under the bylaws. Third, when the Carrigans put the roof on the original attached deck, it became a part of their living space.

The neighbors decide to appeal this to SCOV. I’ll note from the outset that SCOV totally gets why they’re upset. The Town of Addison has really strict building codes and rules with regard to properties on Lake Champlain. The rules are meant to protect the shoreline and to prevent construction and all the problems that construction can cause in a delicate environmental system. A problem starts with one person building a deck within the protected shoreline setback, then another, and then it turns into a construction free-for-all, which is inconsistent with the town’s stated rules and goals. Nobody wants a camp the size of a shoebox to turn into a camp the size of a WalMart. On the other hand, the Carrigans really just seem to be people who bought a camp and have tried, over the course of thirty years, to do some improvements to it for their own use and enjoyment.

Here’s what SCOV makes of all this. First, the detached deck is ok. The neighbors tried to say that the Town’s bylaws that allowed only one structure should have allowed only the stairs and concrete landing (I guess this is the concrete thing mentioned above). SCOV says that the way the bylaw is written that it allows for the deck.

Then SCOV pulls out a good ol’ trusty dictionary to deal with the issue of what is “detached.” The bylaws didn’t define what the Town means by “detached” so the court uses common sense and a dictionary. “Detached” (and I am not making this up) means “not attached.” Since the big L-shaped deck is “not attached” to the house, SCOV finds that it is “detached.” Thusit’s okay under the rules. SCOV thinks this rule is a little odd, since an attached deck wouldn’t be ok even though it would be more structurally sound. But, the Town applies the rule consistently to everybody, so it stands.

Last, SCOV tackles the fact that a conditional use permit was granted for the enclosed part of the deck. That would be the one built in 1984 but that got a roof and walls in 2003ish. The issue is that the camp itself was already a nonconforming structure because it is within 100 feet of the shore. The Town bylaws say that there can be a modification to a noncomplying structure, but the structure can’t be enlarged, expanded, or moved.

So, what does “expanded” really mean? If someone adds a dormer into their roof, it arguably increases the interior volume of the structure, but doesn’t really increase the usable living space. Who lives in a dormer? A bat, maybe. The Carrigans argued that throwing a roof (well, and walls) on a deck that was already there didn’t change the footprint of the building.

SCOV admits that the amount of use the deck got before the walls and after the walls might be the same. However, SCOV goes with the “interior volume” definition, and reverses the Environmental Court on this point, since that wasn’t developed sufficiently at the Environmental Court level.

So, this gets affirmed in part, and reversed in part, and the Environmental Court has to reconsider the issue of the conditional use permit for the deck with the roof.


  1. I've heard this song also and I find it cute..

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  2. The Environmental Court upheld the Town, because of the Carrigans removed the old deck. Interesting article.
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  3. the Town applies the rule consistently to everybody, so it stands.

  4. The Carrigans argued that throwing a roof (well, and walls) on a deck that was already there didn’t change the footprint of the building.
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  5. The Carrigans argued that throwing a roof (well, and walls) on a deck that was already there didn’t change the footprint of the building.
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  6. I learned a lot of things about decks from this opinion.