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In re Carrigan Conditional Use and Certificate of Compliance

Supreme Court of Vermont

November 21, 2014

In re Carrigan Conditional Use and Certificate of Compliance In re Carrigan Certificate of Occupancy In re Carrigan Certificate of Compliance

On Appeal from Superior Court, Environmental Division Thomas S. Durkin, J.

David G. Carpenter of The Carpenter Law Firm, PLLC, Middlebury, for Appellants.

James W. Runcie of Ouimette & Runcie, Vergennes, for Appellees John and Linda Carrigan.

Adam L. Powers of Powers & Powers P.C., Middlebury, for Appellee Town of Addison.

PRESENT: Reiber, C.J., Dooley, Skoglund and Crawford, JJ., [1] and Morse, J. (Ret.), Specially Assigned

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DOOLEY, J.

¶ 1. Neighbors Barbara Supeno and Barbara J. Ernst appeal 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. We affirm on the grant of the certificates of occupancy and reverse on the grant of the conditional use permit.

¶ 2. This dispute centers around a series of decks that applicants constructed on their property and the efforts of the Town in bringing the decks into compliance with the current zoning bylaws. Applicants’ seasonal camp is located on Lake Champlain in the Town of Addison’s Shoreland Residential (SR) District. The Town of Addison Zoning Regulations specify a minimum lot size of 2.5 acres and a minimum shoreline setback of 100 feet for buildings in the SR District. Town of Addison Zoning Regulations § 2.4 tbl.2.3 (2007) [hereinafter bylaws]. Applicants’ lot measures 0.41 acres, and a large portion of the camp and its appurtenant structures is located within the 100-foot setback. The parties do not dispute that applicants’ camp is a noncomplying structure under the bylaws.

¶ 3. Applicants purchased their property in 1984 and shortly thereafter built an attached, uncovered deck on the west side of the camp, facing Lake Champlain, adding ten feet in length to the footprint of the camp. Applicants then replaced an existing concrete platform, retaining wall, and set of stairs located on a slope down to the lakeshore, and added some decking behind the wall. As a result, applicants arguably had two decks within the setback area.

¶ 4. In 2003, applicants applied for and received a permit to build a roof over the uncovered deck that was attached to the west side of the camp. The 2003 permit memorialized the footprint of the camp as 800 square feet, a measurement used in subsequent permit applications. On the recommendation of their builder, applicants also enclosed the deck by adding walls, but they did not apply for a permit for the enclosure, as required by the regulations in effect at that time. In 2004, neighbors purchased property adjacent to applicants’ camp. In 2012, neighbors complained about the enclosed deck, and the Town’s zoning administrator (ZA) inspected the enclosure and informed applicants that a conditional use permit was required under the updated zoning regulations. The DRB granted the conditional use permit without conditions. The environmental court’s affirmance of this conditional use permit is one of the three issues on appeal.

¶ 5. In 2010, applicants applied for and received a permit to construct a detached, “standalone deck” on the west side of the camp, abutting the now-enclosed attached deck. The permit application did not disclose the presence of the decking that applicants had placed behind the retaining wall when they reconstructed the concrete platform and stairs in the 1980s. In 2011, neighbors notified the ZA that the standalone deck violated § 2.3(F)(7)(a) of the bylaws, which limits the number of detached decks an applicant can construct within the SR District. They argued that the decking behind the retaining wall constituted a “deck” and that therefore the standalone deck on the west side of the camp was not allowed under the bylaws. Upon instruction from the ZA, applicants removed the decking from behind the retaining wall to comply with the bylaws. The ZA later discovered that, when constructed, the standalone deck was in fact attached and advised applicants to cut through the connecting boards to create a freestanding structure. The DRB then granted a certificate of occupancy for this deck. The environmental court’s affirmance of this certificate of occupancy is another one of the issues on appeal.

¶ 6. The controversy did not end there. Neighbors alerted the ZA that another attached deck, which applicants had constructed in 2004 on the south side of their camp, violated the zoning bylaws because it increased the camp’s degree of noncompliance. After the DRB denied applicants’ request for a variance, the ZA instructed applicants to detach the south deck from the camp and attach it to the west deck to create one large, L-shaped deck with an area of about 350 square feet, all detached from the camp. Applicants complied, and the DRB then granted a permit and certificate of occupancy for the combined deck. The environmental court’s affirmance of this certificate of occupancy is the final issue on appeal.

¶ 7. Neighbors appealed to the environmental court the DRB’s grant of certificates of occupancy for the west and south decks and its grant of the conditional use permit for the enclosed deck. The court consolidated the three separate appeals and held a de novo trial. It upheld the DRB’s determinations on all three applications, concluding that: (1) once applicants had removed the decking from behind the lakeside retaining wall, the camp had only one detached deck as allowed by the zoning bylaws; (2) the L-shaped structure formed by joining the south and west decks constituted a single, detached deck; and (3) once applicants built the roof over their attached deck, that covered deck became part of their living space.

¶ 8. Neighbors filed this appeal, arguing that the environmental court erred in affirming the DRB’s grant of certificates of occupancy for the detached decks and a conditional use permit for the enclosed deck. Neighbors also argue that the actions of the ZA and DRB directly contravene state and local policies protecting sensitive shoreland areas and lakes. Applicants counter these arguments and further claim that neighbors lacked party status to appeal the DRB’s decisions to the environmental court. The Town of Addison filed a brief on the narrow question of whether the ...


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