VT Supreme Court Upholds COs Detached Decks but Reverses Board’s Granting of Conditional Use Permit for the Enclosing of a Deck on Lake Champlain

Neighbors Supeno and Ernst appealed the decision of the Superior Court, Environmental Division upholding the Town of Addison Development Review Board’s (DRB) grant of certificates of occupancy for two detached decks and a conditional use permit for an enclosed deck to applicants Linda J. and John P. Carrigan for improvements to applicants’ seasonal camp on Lake Champlain. Neighbors also argued that the actions of the DRB directly contravened state and local policies protecting sensitive shoreland areas and lakes. Applicants countered these arguments and further claimed that neighbors lacked party status to appeal the DRB’s decisions to the environmental court.

The Vermont Supreme Court noted that there exists a specific procedural rule “automatically” according interested party status to an appellant who claims status under 10 V.S.A. § 8504(b)(1), “unless the court otherwise determines on motion to dismiss a party.” As the trial court found, applicants failed to file a motion to dismiss, and therefore failed to preserve their objection to the appeal. Thus, standing was not an issue in this case. As to the certificate of occupancy challenges to the two decks, the court found that they were permissible under the Town of Addison Zoning Regulations. The court noted that the interpretation of this provision turned on defining “deck, gazebo or similar structure.” The DRB found that once applicants removed the decking and railing from behind the retaining wall, the structure no longer constituted a deck or similar structure, and as commonly understood, decks and gazebos are structures with platforms (decking) and railings. It followed that “similar structure” as used in the provision applies to structures that also have platforms and railings. DRB’s interpretation of the bylaw was thereby found to be reasonable. Furthermore, since both the south and west portions of the L-shaped deck were freestanding and unsupported by the camp, the court found the second deck sufficiently detached, and the DRB’s decision also reasonable.

As to the issue of whether the DRB erred in granting a conditional use permit for the enclosed deck, the court found that Section 3.7(B)(3) of the bylaws allows a noncomplying structure to be “enlarged, expanded or moved,” provided that such modification “does not increase the degree of noncompliance.” However, here the applicants had turned a twenty-by-thirty-foot camp with a ten-foot deck into a twenty-by-forty-foot camp with a ten-foot deck extending in the direction of Lake Champlain and entirely within required shore land setback. Accordingly the court concluded that the enclosure of applicants’ deck increased the volume of the structure and therefore increased the degree of noncompliance, and the environmental court erred in affirming the DRB’s grant of a conditional use permit for applicants’ enclosed deck.

In re Carrigan Condition Use and Certificate of Compliance, 2014 WL 6633627 (VT 11/21/2014)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/op2013-346.html