STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
} In re Musto Construction Permit } Docket No. 132-7-09 Vtec (Appeal of Hignite) } }
Decision and Order
Appellant Carolyn K. Hignite appealed from a decision of the Development
Review Board (DRB) of the Town of Castleton, granting approval to Appellee-
Applicants David and Martha Musto to construct a year-round residence. Appellant is
represented by Mark L. Sperry, Esq.; Appellee-Applicants (Applicants) are represented
by Gary R. Kupferer, Esq. and Timothy Budd, Esq.; and Interested Party Allan Keyes,
Esq., an attorney licensed in Vermont, entered an appearance representing himself. The
Town of Castleton did not enter an appearance in this matter.
An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge. A site visit was taken at the conclusion of the hearing with the
parties and their representatives, including viewing the parties’ properties and the
vicinity from the lake by boat. Upon consideration of the evidence as illustrated by the
site visit, and of the written memoranda and requests for findings filed by the parties,
the Court finds and concludes as follows.
Findings Relating to Project Proposal
Applicants own a 0.38-acre (approximately 16,553 square feet) existing small lot
on the easterly shore of Lake Bomoseen in the Residential 40,000 (R-40) zoning district
of the Town of Castleton. The lot approximates a long, narrow triangle in shape, with a
westerly boundary of 98.4 feet along the lake shore, a northerly boundary of 244.64 feet,
1 an easterly boundary of 25 feet on the truncated end of the triangle, and a southerly
boundary of 280 feet.
Applicants’ lot contains an existing one-story single-family house, approximately
18 feet in height, in use as a seasonal residence. The Zoning Ordinance does not
distinguish between seasonal and year-round single-family residences. In the R-40
zoning district, a single-family residence is a permitted use. The lot slopes down from
the east towards the elevation of the lake to the west. Three existing decks, with their
associated stairways and landings, are located to the west of the existing house. Two of
these decks, eight feet in width, labeled as the “upper” decks on Diagram 1, are
attached to the house at the level of the ground floor or living area of the house. A set
of stairs leads down from each of these decks to a landing located between the decks in
the center of the westerly side of the house. From the landing, an additional short flight
of stairs leads down to another deck at ground level on the lake side of the existing
house.
The dimensional requirements applicable to a lot containing a residential use in
the R-40 zoning district, found in Article V of the Zoning Ordinance, are a minimum lot
size of 40,000 square feet, a maximum lot coverage of 15%, a minimum lot frontage of
150 feet, a minimum lot depth of 200 feet, a maximum building height of 38 feet, a front
setback of 50 feet, a side setback of 30 feet, and a rear setback of 50 feet.
The Zoning Ordinance does not contain a shoreline overlay zoning district or any
setback requirements specifically applicable to the distance from a building to the lake.
However, whether the lake is considered to be the property’s front or rear property line,
the required setback on the property’s westerly or lake side is 50 feet. For the sake of
clarity, this decision will refer to it as the shoreline setback rather than characterizing it
as the front or the rear setback.
Applicants’ lot is nonconforming with the zoning requirements as to lot size, lot
frontage, and lot depth. However, it meets the minimum area, frontage, and width or 2 depth requirements for development as an existing small lot under §§ 1001 and 1002 of
the Zoning Ordinance and the equivalent statutory sections. 24 V.S.A. § 4412(2).
Setbacks are measured from the relevant boundary line to nearest wall, porch, or
deck of the building or structure, whether enclosed or unenclosed. Article IX of the
Zoning Ordinance, “Setback.” The existing house on Applicants’ lot is nonconforming
with the zoning requirements as to both side setbacks and as to the setback to the lake.1
Diagram 1 shows the outline of the existing one-story house and existing decks, and
shows the portions of these structures that extend into and are therefore nonconforming
with each of the three setbacks. The area of the existing house that extends into the
southerly side setback is labeled as Area 1 on Diagram 1. The area of the existing house
that extends into the northerly side setback is labeled as Area 2 on Diagram 1. All of the
existing decks, landings, and stairs located on the westerly side of the existing house are
located within the shoreline setback. A small portion of the south upper deck, shown as
shaded on Diagram 1, is located within the south side setback as well as within the
shoreline setback.
Applicants propose to demolish the existing one-story camp building and build a
larger, year-round house on the lot. The house is proposed to consist of three stories: a
ground or first floor at the elevation of the existing house, but larger in footprint; a new
walk-out basement level, below the elevation of the existing single-story house; and a
new upper or second floor above the elevation of the existing single-story house, and
larger in footprint. The height of the proposed house, measured from the floor of the
walk-out basement to the peak of the roof, is proposed to be 35 feet.
As shown on Diagram 2, several areas of the proposed house will occupy areas
of the setbacks that are currently open and unoccupied by the existing nonconforming
building. The area of the proposed house that extends into a currently clear portion of
1 The setback to the lake should actually be depicted as irregular, paralleling the shoreline, as it is measured at 50 feet from the shoreline. 3 the southerly side setback is labeled as Area A on Diagram 2. The area of the proposed
house that extends into a currently clear portion of the northerly side setback is labeled
as Area B on Diagram 2. The new areas of the proposed house that are proposed to
occupy currently clear areas of the side setbacks do not extend any closer to the side
boundary lines than the farthest extent of the existing nonconforming house.
In addition, a new ten-foot-wide deck is proposed to extend across the westerly
side of the proposed house, at the level of the ground floor of the proposed house, that
is, above the level of the walk-out basement. Areas C and D on Diagram 2 show the
currently clear areas of the shoreline setback that will be occupied by the new deck.
Appellant Carolyn Hignite and her brother, Interested Person Allan Keyes,
together with another brother, own the lot directly to the south of Applicants’ lot. The
Hignite-Keyes lot has been in their family since 1948. It contains a one-story house over
a crawl space, in use as a seasonal residence, with an enclosed screened porch along its
west side overlooking the lake. The southerly wall of the existing building on
Applicants’ property is approximately 67½ feet (on the eastern end) to 75’ feet (on the
western end) from the northerly wall of the Hignite-Keyes camp building. A number of
large mature trees on the Applicants’ lot, to the south of the existing house, are
proposed to be removed for the construction of the house or for the construction of the
septic system to serve the house. Findings and conclusions regarding whether the
proposal will have a significant adverse effect on the Hignite-Keyes property are
discussed in the text at note 6, infra.
In 2002, Appellant Hignite had appealed to this Court a decision of the then-
Castleton Zoning Board of Adjustment (ZBA) regarding the decks and stairs
constructed by Applicants’ predecessor, Dr. Roshan Sivagnanam. That appeal, In re
Appeal of Hignite, No. 49-2-02 Vtec, was settled by the August 10, 2006 entry of a
Consent Order and Decree (Consent Order), which by its terms runs with the land and
is binding on the parties and their heirs, successors and assigns. The Consent Order 4 provided that the court “shall retain jurisdiction for the purposes of enforcing” the
Consent Order. The Consent Order reversed and vacated the ZBA decision, concluding
instead that the deck construction had required a permit, and substituted the Consent
Order as a final zoning permit for the deck modification and construction permit. The
Court Order established the restricted area in the southwest portion of Applicants’ lot
as shown on Diagram 3 and required the removal of the southside deck and
replacement of a south-facing sliding glass door with a smaller window in its pre-
existing location; the work required by the Consent Order has been done. The Consent
Order prohibited the placement of additional windows or doors in the south wall of the
camp or so as to face the Hignite-Keyes camp.
As well as establishing the restricted area, ¶ 4 of the Consent Order provides that
“no structure, including stairs, whether temporary, seasonal or permanent, shall
hereafter be constructed or placed within any other front, rear or side setback area
imposed by the then[-]applicable Castleton Zoning Bylaw.” Paragraph 8 of the
Consent Order further provides that “any future expansion or alteration of the
footprint” or “erection of any other new structure” on Applicants’ property will be
“subject to all requirements of the Castleton Zoning Bylaw, including setbacks.”
Eligibility of Project for Consideration under § 709
Regulatory Context
Since 1987, the minimum setbacks applicable to the R-40 zoning district at Lake
Bomoseen have been 30 feet for the side setbacks and 50 feet for the front and rear
setbacks. Section 204(F) of the 2008 Zoning Ordinance provides in pertinent part that
“[n]o yard . . . existing at the time of passage of this Regulation shall be reduced in
dimension or area below the minimum requirements set forth herein.”
Under the 2004 state zoning statute amendments first allowing municipalities to
provide for waivers of dimensional requirements, 24 V.S.A. § 4414(8), the 2008 Zoning 5 Ordinance provides in § 1208 for waivers of dimensional requirements such as setbacks,
but limits eligibility for such waivers to small additions that do not increase the
footprint of the structure by more than 200 square feet. Section 1208(C)(4) provides
that, with a waiver, no side setback shall be reduced to less than 15 feet. Section
1208(D) allows the DRB to impose “conditions regarding the design and screening of
the addition to mitigate any impacts on neighboring properties.”
Section 709
The 2004 state zoning statute also redefined nonconformities, including
nonconforming structures, 24 V.S.A. § 4303(14), and required all municipalities to
address in their bylaws “how nonconformities will be addressed, including standards
for nonconforming . . . structures.” 24 V.S.A. § 4412(7). Section 4412(7)(A) authorizes
municipalities to “regulate and prohibit expansion and undue perpetuation of
nonconformities” to achieve the purposes of zoning set forth in § 4302. The statutory
language is consistent with Vermont case law recognizing that a function of zoning is to
limit the expansion and undue perpetuation of nonconformities. See In re: Kirschner
Home Constr. Application, No. 226-10-07 Vtec, slip op. at 15 (Vt. Envtl. Ct. Sept. 25,
2008) (Wright, J.) (purpose of zoning is to phase out nonconformities); In re Smith, 2006
VT 33, ¶ 10, 179 Vt. 636 (mem.) (ultimate goal of zoning is gradual elimination of
nonconforming uses); In re Casella Waste Mgmt., Inc., 2003 VT 49, ¶ 9, 175 Vt. 335
(“primary goal of zoning is to gradually eliminate nonconforming uses”). Further,
§ 4412(7)(A) specifically allows municipalities to “specify the extent to which, and the
circumstances under which” a nonconformity may change or expand, or be rebuilt. 24
V.S.A. §§ 4412(7)(A)(ii), (v).
Carrying out this statutory authorization, § 709 of the Zoning Ordinance
regulates expansion of a nonconforming structure containing a conforming use. Section
709 provides in full that:
[n]onconforming structures with conforming use may be continued 6 indefinitely, but: A. Shall not be moved, enlarged, altered, extended, reconstructed or restored except upon approval of the [DRB] following a public hearing after public notice if the [DRB] finds and concludes that: 1. there will be no significant adverse effect on traffic in the vicinity; 2. there will be no significant adverse effect upon surrounding property; and 3. there will be an increase in area not to exceed the total ground area covered subject to Article V restrictions. Nonconforming setbacks cannot be made more nonconforming and conforming setbacks cannot be made nonconforming. However, structures may be moved toward the center of a lot provided the sum total of the side setbacks is not decreased.*2 B. This section shall allow, upon approval of the [DRB], the addition of a second story on a non-conforming structure that is a conforming use. Any such second story shall not be considered an expansion of nonconformity. C. Nothing in this section shall be deemed to prevent normal maintenance and repair of a non-conforming structure provided that such action does not increase the degree of nonconformity.3
Appellant first argues that § 709 is not applicable at all to a proposal such as the
present one that proposes demolition of the existing nonconforming structure and
construction of a new structure that exceeds the volume occupied by the existing
structure. However, in § 709(A) the Zoning Ordinance specifically allows a
nonconforming structure (housing a conforming use) not only to be moved, enlarged,
2 An asterisk appears in the ordinance but the ordinance contains no corresponding note to which the asterisk might refer. 3 Section 708 of the Zoning Ordinance also addresses maintenance of a noncomplying structure, providing in full that “a non-complying structure may be normally maintained and repaired provided that such action does not increase the degree of non- compliance.” 7 altered or extended, but it also authorizes such a building to be reconstructed or
restored, which incorporates the concept of demolition and reconstruction.
Neither In re Stowe Club Highlands, 164 Vt. 272 (1995), nor this Court’s decision
in In re: Delano Variance Application, No. 161-8-07 Vtec (Vt. Envtl. Ct. Aug. 29, 2008)
(Durkin, J.), requires a contrary result. Both of those cases involved ordinances that
provided for expansion or alteration, but did not provide for reconstruction or
replacement. By contrast, because § 709(A) includes reconstruction as well as
enlargement and extension, it covers a project that involves both the building of a
replacement structure within the footprint and volume of the existing structure and the
enlargement or expansion of the existing structure into a new volume or area.
Therefore, the demolition and building project involved in the present application does
come within the scope of § 709.
Section 709(A)(3)
However, the proposal before the Court fails to meet § 709(A)(3) and is therefore
not eligible for approval by the DRB or this Court.4 While certain areas of the volume of
the proposed new house—those below the ground surface, those within what would
have been a second story above the existing house, and those complying with the
setbacks—would be eligible for consideration under § 709, other areas of the volume of
the proposed new house violate § 709(A)(3).
4 If the proposal were not precluded by § 709(A)(3), it would be necessary to proceed to Appellant’s argument that it also violates ¶ 4 of the 2006 Consent Order, In re Appeal of Hignite, No. 49-2-02 Vtec (Vt. Envtl. Ct. Aug 10, 2006), because the proposal places new volumes of structure “within any . . . front, rear or side setback area.” However, any action to enforce the 2006 Consent Order must be brought, by post-judgment motion or otherwise, with reference to Docket No. 49-2-02 Vtec and not in the present separate appeal. 8 Increase in Ground Area Subject to Setback Restrictions
The proposal fails to meet the first sentence of § 709(A)(3). The plain language of
the first sentence of § 709(A)(3) requires that the ground area covered by the new
building does not increase the ground area of the existing building that was already
within the setback area (that is, the ground area subject to the Article V setback
restrictions that is already covered by the existing building). It allows the new building
to be expanded into ground area that complies with the setbacks, but not into ground
area that is within the setback restrictions of Article V of the Zoning Ordinance. This
language is awkward, because it was carried forward from several earlier versions of
the zoning ordinance, but its meaning is clear.
This interpretation of the first sentence is supported by the statutory purpose
authorizing § 709, which is to “regulate and prohibit the expansion and undue
perpetuation of nonconformities,” not to facilitate their expansion. This is consistent
with 24 V.S.A. § 4412(7)(A) and the public interest in the elimination of nonconformities
enunciated by our Supreme Court. In re Gregoire, 170 Vt. 556, 559 (1999) (mem.) (there
is a strong public interest in the regulation and elimination of nonconforming uses and
the goal of zoning is to gradually eliminate them).
This interpretation of the first sentence of § 709(A)(3) is also supported by an
examination of the previous versions of the zoning ordinance from which it was
derived. First, it uses the term “ground area” to distinguish the restriction from an
earlier version of the ordinance amended in 1997 that allowed a 50% increase in “floor
area” or “gross area” above that contained in the existing building. Appeal of Keough,
No. 244-11-02 Vtec, slip op. at 3 (Vt. Envtl. Ct. Oct. 8, 2003) (Wright, J.). The terms “floor
area” or “gross area” referred to the total interior space on all floors of the building, so
that a two-story building would have twice the floor area of a one-story building with
9 the same footprint or ground area covered.5 Second, the most recent prior version of
the zoning ordinance had allowed a 15% increase in the ground area covered within the
restricted setback areas. The fact that the ordinance was amended to delete the 15%
increase supports the interpretation that the present version of the ordinance prohibits
the expansion of a nonconforming building into areas of the setback not already
occupied by the existing nonconforming building. See State v. Muscari, 174 Vt. 101, 106
(2002) (citing Jones v. Dept. of Employment Sec., 140 Vt. 552, 555 (1982)) (“amendment
of [ordinance] shows legislative intent to change effect of existing [ordinance]).
Accordingly, the fact that substantial areas of the proposed building extend into
areas of the setbacks that are now clear is sufficient to deny approval of the proposal
under the first sentence of § 709(A)(3).
Increase in Nonconformity of Nonconforming Setbacks and Making Conforming Setbacks Nonconforming Moreover, the proposal also fails to meet the second sentence of § 709(A)(3) in
that it makes nonconforming setbacks more nonconforming, and makes areas that are
now conforming to the setbacks nonconforming. Specifically, with reference to
Diagram 2, the increases in width of the decks represented by Areas C and D make the
nonconformity with the shoreline setback more nonconforming. The substantial
additional area of the north side setback occupied by the new house that is represented
by Area B on Diagram 2 makes a conforming segment of the north side setback
nonconforming to a height of one to two stories within that setback. The small
additional area of the south side setback occupied by the new house that is represented
by Area A on Diagram 2 similarly makes a conforming segment of the south side
5 Appellant also argues that the proposal represent an impermissibly large expansion of interior space within the new building; however, the present § 709 does not regulate or limit the expansion of interior or living space. 10 setback nonconforming to a height of one to two stories within that setback. Similarly, it
violates § 204(F) by reducing the side yards (setback area) in dimension and area below
the minimum requirements set forth in Article V.
Applicants argue that the second sentence of § 709(A)(3) should instead be
interpreted to mean that they are allowed to expand the nonconforming building all
along both side property lines to as close to the north side property line as the farthest
extent of the northwest corner of the existing building and to as close to the south side
property line as the farthest extent of the southeast corner of the existing building, as
shown in Diagram 3. They also argue that the existing lakeshore setback applicable to
the decks extends towards the lake as close as the farthest extent of the existing lower
open deck, without regard to whether the lower deck is a separate structure from the
house and its attached upper decks.
The fundamental purpose of zoning is to eliminate nonconformities. See
Kirschner Home Constr. Application, No. 226-10-07 Vtec, slip op. at 15 (Vt. Envtl. Ct.
Sept. 25, 2008) (Wright, J.); Casella Waste Mgmt., 2003 VT 49, ¶ 9. This purpose is
echoed by 24 V.S.A. § 4412(7), which allows municipalities to regulate “expansion and
undue perpetuation of nonconformities.” A nonconforming building may be allowed
to remain and even to expand or be reconstructed as regulated, but nothing in the state
statute or court decisions suggests that a nonconforming building somehow gains an
advantage beyond that enjoyed by a conforming building, to expand the nonconformity
within the setback area along the entire property line.
In interpreting zoning ordinances, the Court applies the familiar rules of
statutory construction, first construing words according to their plain meaning, and
“giving effect to the whole and every part of the ordinance.” In re Champlain Coll.
Maple St. Dormitory, 2009 VT 55, ¶ 13, 186 Vt. 313 (quoting Stowe Club Highlands, 164
Vt. at 279). That is, the Court must presume that all language in the ordinance was
inserted for a purpose and the Court cannot allow a significant part of the ordinance to 11 be rendered mere surplusage. In re Miller, 2009 VT 36, ¶ 14, 185 Vt. 550. Applicants’
interpretation would render § 709(B), which allows a second-story addition to a
nonconforming structure so that the addition does not constitute the expansion of a
nonconformity, surplusage. Under Applicants’ interpretation, the second sentence of
§ 709(A)(3) would render this exemption for an additional story on a nonconforming
structure unnecessary, because an increase in height within the existing nonconforming
footprint would not bring the building any closer to the boundary line than the existing
nonconforming ground floor of the structure.
In the absence of a plain meaning, courts attempt to discern the legislative intent
from other sources and the overall context or purpose of the ordinance. Shea v. Metcalf,
167 Vt. 494, 498 (Court resolves ambiguity by looking at the context of statutory
language, subject matter, and effects of interpretation). Applicants argue that the
Castleton DRB has interpreted § 709(A)(3) to support their argument, and have
submitted fourteen decisions of the DRB in other cases, which, they argue, allowed
similar expansions of houses in the Lake Bomoseen area.
Although a DRB’s consistent interpretation of a zoning ordinance “can be
determinative in a close case,” In re Korbet, 2005 VT 7, ¶ 10, 178 Vt. 459 (quoting In re
Maple Tree Place, 156 Vt. 494, 499–500 (1991)), the weight to be accorded to such an
interpretation “depends on the explanation of ‘a reason or rationale for [the DRB’s]
decision’” as well as a demonstration that the interpretation has been consistent.”
Korbet, 2005 VT 7, ¶ 10 (quoting In re Appeal of Chatelain, 164 Vt. 597, 598 (1995)). In
the present case, neither the first nor the second sentence of § 709(A)(3) is ambiguous
and both preclude the present application, as does § 204(F). Even if those sentences
were ambiguous, the context of the remainder of the ordinance, and the enabling
authority of the state statute, require that expansion of a nonconforming structure be
restricted to minimize any increase in nonconformity.
Moreover, even if this were the sort of close case in which the DRB’s consistent 12 interpretation would be useful, see Champlain Coll. Maple St. Dormitory, 2009 VT 55,
¶¶ 11–14, the DRB has not given any reason or rationale in any of the decisions, nor has
it even given any interpretation of § 709(A)(3) in any of the decisions supplied by
Applicants.6 The Court is not obligated to perpetuate an error. See Korbet, 2005 VT 7,
¶ 10.
Appellant Hignite and Interested Person Keyes provided testimony of the
evident importance to them of maintaining the rustic camp nature of their immediate
Masons Point neighborhood and especially of Applicants’ property, even though they
recognize that many properties around the lake have converted to large year-round
residences. Both parties presented evidence from experts and others as to the
appearance, materials, and aesthetics of the proposed house and as to the effect of the
proposal on surrounding properties. However, as the present proposal is not eligible
for consideration under § 709(A) by the DRB, and hence this Court, it would be entirely
advisory to make findings as to its effect on surrounding properties, whether any effect
on the Hignite-Keyes property would be adverse, or, if adverse, whether any adverse
effect would be significant. 7
6 To the extent that anything can be determined from comparing each decision with its respective application materials, if these decisions have created any new nonconformities “improperly authorized as a result of error,” as defined in 24 V.S.A. §§ 4303(13)–(15), they have not come before this Court for interpretation of § 709. Compare In re Barry and Clyde’s Place LLC, 2011 VT 7, ¶ 20. 7 It is would also be an impermissible advisory opinion to determine Question 6 of the Statement of Questions as to whether the regulatory standard of “significant adverse effect on surrounding properties” is unconstitutionally vague, except to note that the two prior cases decided by this Court under that standard and cited by Appellant: In re Appeals of Jackson and Appeal of McCue, Nos. 165-9-99, 43-2-00, 190-9-00, 258-12-99 Vtec (Vt. Envtl. Ct. June 8, 2001) (Wright, J.) and Keough, No. 244-11-02 Vtec (Vt. Envtl. Ct. Oct. 8, 2003) were both issued by this Court prior to the Vermont Supreme Court’s decision in Appeal of JAM Golf, 2008 VT 110, ¶¶ 13–14. 13 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellee-Applicants’ application is DENIED for failure to comply with § 709(A)(3)
as to the expansion of nonconforming structures, concluding this appeal.
Done at Berlin, Vermont, this 27th day of January, 2011.
_________________________________________________ Merideth Wright Environmental Judge