Landowner’s home was built prior to the adoption of zoning in the Town. As result of the slope of the land, the house was considered non-conforming as to its front setback because the entire property was within the 100’ requirement for Rural Residential districts under the Town’s zoning bylaws that were adopted in the mid-1990s. Landowners were conveyed the property in 2006 and planned to replace the old and deteriorating house. After several meetings and discussions with the town zoning administrator, landowners applied for and received a zoning permit to build a new home on the property. The permit was not complete, however, because it failed to satisfy zoning bylaws requiring sketch plans to be drawn to scale and because the application proposed a change to a preexisting nonconforming structure. The permit should have been submitted to the zoning board of adjustment for approval. The new house was mostly complete in 2007 and was similar to the old house except that it had dormer extending out from the top story.
When the new zoning administrator visited the site, however, he issued a Notice of Violation (NOV) asserting that the construction violated the section of the Town’s bylaws related to lakefront setback. Landowners appealed to the Environmental Court and also filed a new permit application, which was considered under the Town bylaws adopted in 2007. The new application was denied and landowner again brought an appeal before the Environmental Court. The court upheld the NOV and denied the new application.
The Vermont Supreme Court did not agree that the landowner violated the permit by enlarging the non-complying structure by adding new plumbing and sewage as well as building a three-story home. The Court did not find merit in the Town’s argument that the landowner failed to preserve any claim that the permit terms were ambiguous. The permit terms “over” and “footprint” were ambiguous because the terms were not defined in the zoning ordinance. The Court determined that the landowners were entitled to judgment because the new structure was consistent with the landowner’s original permit containing ambiguous terms that had to be construed favorably to landowner. The Environmental Court’s decision was reversed and the matter remanded for judgment to be entered on behalf of landowner.
In re Barry, 2011 WL 190067 (Vt Jan. 21, 2011)
The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2010-013.html
