This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: Superior Court, Envtl. Div. DOCKET NO. 55-4-12 Vtec. Trial Judge: Thomas G. Walsh.
Reiber, C. J., Skoglund, and Crawford, JJ.
In the above-entitled cause, the Clerk will enter:
This appeal involves a third tier structure built by applicant Michael Williamson on his home in the Town of Georgia. He appeals the environmental court's order affirming a decision of the Town's Zoning Board of Adjustment, which denied applicant's attempts to obtain approval for the structure because the third tier exceeded maximum height restrictions and was not eligible for any exemption. On appeal, applicant argues that the environmental court's construction of the relevant statutes and zoning regulations was in error and that his third tier is exempt from the height requirements as a solar collector or belfry, or can receive a variance as a renewable energy resource structure. Applicant also argues that the Town failed to properly issue a decision and his application should be deemed approved. We affirm.
The record reveals the following facts. Applicant owns property improved with a single-family home in the Town's L-1 Lakeshore District. The residence is located within 200' of the Lake Champlain shoreline. In 2009 or earlier, applicant constructed an octagon-shaped third-floor addition, which measured 11' wide and 9.5' tall. The base of the tower is about 14' above grade. The addition has a wood-stud frame with a floor, walls, and windows. There are five generally north-facing windows, while the south-facing walls are solid. There is a twelve-inch diameter bell installed and hanging from the interior ceiling of the addition. The addition is accessed via a trap door and a step ladder. In 2009, photovoltaic collectors were installed on the exterior of the south side, but a wind storm damaged the collectors and they have not been replaced.
In September 2009, the Town zoning administrator notified applicant that the third tier required a permit. Applicant filed a zoning permit application with the Town for a " solar collector." The zoning administrator denied the application, concluding that applicant's structure did not comply with Town Regulation § 3140.4.9, which sets a maximum building height of 16' for new construction within 200' of Lake Champlain. Applicant then filed a zoning permit application for a " rooftop solar collector," which is exempt from the height restriction. The zoning administrator also denied that application for noncompliance with the maximum building height restriction, concluding that the third tier did not qualify for exemption as a rooftop solar collector. Applicant next filed a conditional use application with the Town seeking approval for his structure as a belfry. Applicant concurrently filed an application seeking a height variance for a " renewable energy resource structure." Applicant also appealed the denial of the zoning permit application to the zoning board. Following a public hearing, the zoning board issued a written denial of all applicant's requests on April 18, 2012.
Applicant appealed to the Environmental Division. He included eight questions to be decided, which all related to the interpretation of the relevant Town zoning regulations and statutes, and questioned whether applicant's third tier qualified as a belfry, renewable energy resource structure or rooftop solar collector. Applicant subsequently moved to amend his statement of questions to include " Did the Zoning Board of Adjustment properly render its decisions?" based on information that the zoning administrator had participated in the board's deliberative session. The court held a de novo hearing. The court concluded that applicant's third tier did not qualify as a rooftop solar collector, was not a belfry, and was not eligible for a variance as a renewable energy resource structure because it was not unusually difficult or unduly expensive for applicant to build a suitable structure in conformance with the Town regulations. The court granted applicant's motion to amend the statement of questions, but concluded that any impropriety during the board deliberations was cured by de novo review in the environmental court and that the Town timely rendered its decision. Applicant filed a notice of appeal to this Court.
On appeal, applicant renews the arguments made to the environmental court. Applicant's first argument centers on the building-height restriction in his zoning district. Applicant's property is located in the L-1 Lakeshore District. The Town zoning regulations state that the purpose of this district is to " protect the water quality of the lake and the recreational potential and natural beauty of the shoreline ." The regulations set a maximum building height of 16' for new construction or additions within 200' of the shoreline to " preserve visual access to Lake Champlain."
On appeal, applicant argues that the height limitation of 16' does not have an appreciable impact on visual access to Lake Champlain and is therefore an impermissible regulation. The environmental court concluded that the height limitation of 16' was a permissible restriction. Zoning regulations are a valid exercise of the police power as long as the owner retains " some practical use of his land" and there exists " a public good or benefit of sufficient magnitude to justify the burdening of the affected property." Hinsdale v. Vill. of Essex Junction, 153 Vt. 618, 626, 572 A.2d 925 (1990) (quotation omitted). Zoning bylaws are presumed valid and will be affirmed unless the challenger demonstrates that the zoning is " clearly and beyond dispute ... unreasonable, irrational, arbitrary or discriminatory." McLaughry v. Town of Norwich, 140 Vt. 49, 54, 433 A.2d 319 (1981) (quotation omitted).
Applicant accepts that the Town has the authority to restrict development to protect the view of Lake Champlain, but argues that the height restriction of 16' does not protect the view since few people can see above even 8' and the Town's concurrent regulation prohibiting removal of large trees restricts views. Applicant has failed to demonstrate that the height restriction lacks any reasonable relationship to the protection of shoreline views. See City of Rutland v. Keiffer, 124 Vt. 357, 359, 205 A.2d 400 (1964) (explaining that zoning ordinances must be " reasonably related to public health, safety, morals, or general welfare" ). While applicant contends that views are already obstructed by existing buildings and by trees, which may not be removed, these obstructions do not make the height restriction unreasonable. Whatever other view restrictions exist, it is reasonable for the Town to seek to limit additional obstructions. Further, the distinction between trees and buildings is a reasonable one. As to the exact height chosen by the Town, this was reasonable. It is undeniable that a shorter structure allows for greater view of the surrounding shore, both from the neighboring land and from the lakeside. The Town's choice of 16' was well within a reasonable limit and not invalid.
Applicant's next arguments concern the interpretation of town zoning regulations exempting certain structures from the height requirement. First, applicant contends that his third tier is exempt from the height requirement because it is a rooftop solar collector. This argument rests on the application of the exemptions in the zoning regulations, which provide: " All structures shall comply with the height restrictions in the district regulations. Chimneys, noncommercial antenna structures, rooftop solar collectors extending less than 10' above roofs, ... are exempt ...