Edgar NOV ( 2012 )

STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION
{
In re Edgar Northshore Drive Variance { Docket No. 163-11-11 Vtec
Application {
{
Decision in On-the-Record Appeal
In this on-the-record proceeding, Margaret M. Edgar, Trustee (Appellant) appeals a
decision by the Town of Ludlow Development Review Board (the DRB) which upheld a notice
of violation (NOV) that the Town of Ludlow’s Director of Planning and Zoning had issued to
Appellant. Specifically, Appellant contests the DRB’s determination that her installation of an
interior ceiling failed to remedy the violation that arose when her previous basement
renovation increased the overall height of her house, including increasing the height of a corner
of the house resulting in a further encroachment or increased nonconformity in the waterfront
setback area. The principal questions before this Court are whether the DRB erred in affirming
the NOV and whether the DRB made reversible procedural errors.
In issuing this Decision on the merits of this on-the-record appeal from the DRB’s
decision, the Court has taken into account the parties’ briefs and oral argument, the DRB’s
decision of October 4, 2011 affirming the NOV, our previous decision in In re Edgar Northshore
Drive Variance Application, No. 292-12-07 Vtec (Vt. Envtl. Ct. Feb. 5, 2009) (Wright, J.), and the
record as a whole. Appellant has not objected to the contents of the record that the DRB
submitted.
Appellant is represented by Eric C. Velto, Esq. and L. Raymond Massucco, Esq. The
Town of Ludlow (the Town) is represented by J. Christopher Callahan, Esq. and Brendan P.
Donahue, Esq.
Background
Appellant owns a house at 51 Northshore Drive in the Town of Ludlow’s lake zoning
district, where houses must be set back from the waterfront by at least 50 feet. The house was
constructed before the enactment of the setback requirements, and its southeast corner
encroaches into the waterfront setback area by approximately 7.8 feet. It is uncontested that the
house is a pre-existing nonconforming structure under the Town of Ludlow, Vermont Zoning
and Flood Hazard Regulations, Amended December 2, 2007, (Regulations), which—at § 262.1—
define a “nonconforming structure” as “a structure or part of a structure that does not conform
to the present bylaws but was in conformance with all applicable laws, ordinances, and
regulations prior to the enactment of the present bylaws, including a structure improperly
authorized as a result of error by the administrative officer.”
In early January of 2007, Appellant transformed the building’s lower portion, which
previously consisted of a dirt floor and concrete supports, into a finished walk-out basement.1
To install the poured concrete foundation, she raised the entire building,2 causing the house’s
roof to be 12 inches higher than before the renovations. In late January of 2007, the Town issued
Appellant an NOV for construction activities without a permit. Appellant did not appeal this
NOV; instead, she eventually applied for a variance to the waterfront setback in August of 2007.
The DRB denied the variance in January 2008. On appeal by Appellant, this Court
conducted an on-the-record review of the DRB’s decision. Edgar Variance Application, No.
292-12-07 Vtec (Vt. Envtl. Ct. Feb. 5, 2009). In Judge Wright’s 2009 decision, she determined that
the DRB erred in requiring a variance for the transformation of the storage space into living
space because the Regulations allow maintenance and repair within the original confines of
nonconforming structures. Id. at 7 (citing Regulations § 262.2). Noting, however, that the
Regulations also require compliance with all aspects of the Regulations when a property owner
expands such structures, including vertically, Judge Wright ultimately affirmed the variance
requirement for the vertical expansion “but only in the nonconforming corner portion of the
structure.” Id. Lastly, Judge Wright found substantial evidence in the record to support the
DRB’s denial of a variance for the volume of space “above the existing nonconforming
southeast corner.” Id. The Court’s corresponding judgment order describes the relevant space
as “the top twelve inches of the renovated structure, extending from the southeasterly corner of
the structure to points approximately eleven feet along the southerly and the easterly walls of
the structure, and extending within the structure to a point approximately 7.8 feet
1
Article 7 of the Regulations defines “basement” as “[a]ny area of a building which has its floor sub-
grade (below ground level) on all sides.” Since Appellant’s lower level does not have a sub-grade floor
on all sides, the term “basement” is technically inapposite. We use that term for the sake of simplicity,
however, since parties refer to the lower level as the “basement” throughout their briefs.
2 Appellant also excavated below the prior support structure, adding volume both above and below
ground level, including in the nonconforming corner. For this appeal, however, only the 12-inch above-
ground expansion of the nonconforming corner is at issue.
2
perpendicularly into the structure from the southeast corner.” In re Edgar Northshore Dr.
Variance Application, No. 292-12-07 Vtec, slip op. at 1 (March 5, 2009).3
Appellant did not appeal the Court’s February 5, 2009 decision or March 5, 2009
judgment order. On March 28, 2011, the Town’s Director of Planning and Zoning, Rose Goings,
issued an NOV to Appellant for her continuing violation of the waterfront setback based on her
failure to “remove the offending portion of the building . . . as reflected in the Environmental
Court action.” (Mar. 28, 2011 Violation Notice for 51 Northshore Dr., filed Dec. 19, 2011.)
Appellant appealed the NOV to the DRB arguing that Goings had no basis for issuing the NOV
because prior to receiving it, Appellant had abated any alleged violation by reducing the
offending volume. (Notice of Appeal ¶ 3, filed Apr. 22, 2011.)
The DRB held a hearing on Appellant’s appeal on August 8, 2011, continued on
September 12, 2011. During the hearing, Appellant’s counsel argued that the offending volume
to which this Court’s order referred “was created on the lower level” and that by lowering the
basement ceiling by 12 inches, his client had “physically closed in, capped off, and removed”
the space. (Transcript of Town of Ludlow Sept. 12, 2011 DRB Pub. Hearing 15:2–21, filed July
10, 2012 [hereinafter Sept. 12, 2011 DRB Hr’g].) The DRB ultimately affirmed the NOV,
concluding that a zoning violation remained, because “the variance for the increase of
nonconformity was denied, and the offending portion of the structure (Described above)
remains.” In re Margaret Edgar, Trustee, Findings of Fact and Decision, at 5 (Town and Village
of Ludlow Dev. Review Bd. Oct. 4, 2011) [hereinafter DRB Findings of Fact & Decision]. This
decision is the subject of Appellant’s timely appeal to this Court.
Discussion
Our review of the DRB’s decision is limited to addressing the questions raised by the
Appellant in her Statement of Questions. See V.R.E.C.P. 5(f). Appellant’s five questions
3 In her order, Judge Wright suggested that Appellant file drawings for the clarity of the Town’s and the
Court’s records, but no party submitted a sketch that she found sufficiently detailed to include with the
order. See Edgar Variance Application, No. 292-12-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Mar. 5, 2009); In re
Edgar Northshore Drive Variance Application, No. 292-12-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Mar. 22,
2011). She made clear that the rough sketch she herself had prepared to assist the parties “was not
attached to or incorporated in any order in this matter, nor was a more accurate plan, elevation, or
orthogonal architectural or engineering drawing provided by the parties nor incorporated in a court
order.” Id. To the extent that any party relied on that sketch in making decisions or in arguing its case in
this appeal, such reliance was unreasonable in light of Judge Wright’s clear warning. We will not
consider arguments based on parties’ interpretation of her drawing.
3
essentially ask whether the DRB erred by (1) determining that the volume of space above the
pre-renovation height of the roofline in the nonconforming corner violates waterfront setback
requirements; (2) refusing to consider Appellant’s lowering of her basement ceiling as having
“removed” the volume for which this Court had previously determined that a variance is
required; and (3) committing evidentiary and procedural errors.
For the reasons discussed below, we conclude as a matter of law that the DRB did not
err in finding an ongoing violation that Appellant had failed to remedy. We also find that the
procedural errors alleged do not rise to the level of reversible error.
I. Standard of review
In an on-the-record appeal to this Court pursuant to V.R.E.C.P. 5(h), our review is
limited to the record made before the municipal panel and the briefs submitted by the parties.
See In re Saman ROW Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div.
Sept. 2, 2011) (Durkin, J.). We will affirm the municipal panel’s factual findings if they are
supported by substantial evidence in the record, and we will review its legal conclusions de
novo unless such conclusions are within the panel’s area of expertise. See In re Stowe
Highlands Resort PUD and PRD Application, 2009 VT 76, ¶ 7, 186 Vt. 568 (mem.). In examining
whether there is substantial evidence in the record, we are not permitted to make our own
assessment of the credibility of witness testimony or reweigh conflicting evidence in the record.
See Devers-Scott v. Office of Prof’l Regulation, 2007 VT 4, ¶ 6, 181 Vt. 248; In re Appeal of
Leikert, No. 2004-213, slip op. at 2 (Vt. Nov. 2004) (unpublished mem.). We are simply to
inquire whether the record includes relevant evidence that a “reasonable person could accept
. . . as adequate” support. Devers-Scott, 2007 VT 4, ¶ 6 (quoting Braun v. Bd. of Dental Exam’rs,
167 Vt. 110, 114 (1997)). As for legal conclusions based on those factual findings, we conduct a
de novo review, meaning that we consider whether the DRB’s decision reached a correct legal
conclusion. See Stowe Highlands, 2009 VT 76, ¶ 7.
II. The location of the portion of the house requiring a variance
Appellant’s Question 5 asks “[d]id the Development Review Board err in its
determination of where the additional ‘volume’ of the renovated structure was created and for
which a variance was required?” (Appellant’s Statement of Questions, filed Dec. 9, 2011.)
Appellant argues that the DRB erred in determining that the volume of space above the pre-
renovation height of the roofline in the nonconforming corner violates waterfront setback
4
requirements. (Appellant’s Brief 9, filed Mar. 27, 2012.) Pointing to this Court’s prior
determination that a variance is necessary for “the top twelve inches of the renovated
structure,” Appellant maintains that “[t]he only renovated space in the home was in the
basement level. The top twelve inches of that space must then refer to the top foot of the
basement level.” Id.We regard the language in the Court’s 2009 decision and judgment order as clear.
Before the Court in 2009 was the question of whether two specific aspects of Appellant’s
original renovations (lettered (b) and (c) within the Court’s decision) required a variance. Edgar
Variance Application, No. 292-12-07 Vtec, slip op. at 4–5 (Vt. Envtl. Ct. Feb. 5, 2009). Letter (b)
was her transformation of a formerly uninhabitable storage area into a walk-out finished
basement suitable for year-round habitation. Id. This Court decided that the bulk of the
basement renovation did not require a variance because the Regulations allow property owners
to repair and maintain nonconforming structures without penalty. Id. at 6–7. Put another way,
Appellant was free to make any legal upgrades desired within the original building envelope.
Letter (c) of the Court’s decision, however, referred to the way that the installation of the
basement “lifted the house.” Id. at 5. We stated:
On the other hand, because § 262.2 defines expansion to encompass vertical as
well as lateral enlargement of the nonconforming portion of the structure, any
enlargement beyond the existing volume of the structure under the roofed areas
triggers § 262.2. Since adding twelve inches to the foundation increased the
height of and thereby created a vertical expansion to the portion of the structure
that is within the waterfront setback, a variance was required for the additional
twelve inches of height, but only in the nonconforming corner portion of the
structure.
Id. at 7 (emphasis added). This language makes clear that by adding twelve inches of height to
the nonconforming portion of the structure (the portion located within the waterfront setback
area), Appellant vertically expanded the building envelope beyond the original nonconforming
area, thereby creating the need for a variance for the additional height.
We note that this interpretation is consistent with other language within the Ludlow
Zoning Regulations defining upgrading as “[t]he privilege of the property owner to improve
the utility of his building, if it does not change the overall use or size of said building.”
Regulations Article 7 (emphasis added). Vermont applies the canon of statutory construction
called ejusdem generis, which dictates that when words “bearing a specific description are
followed by words of more general import, the sense of the adjective first used is applied to the
5
words that follow.” Kalakowski v. John A. Russell Corp., 137 Vt. 219, 224 (1979). Thus, we read
the Regulations as applying the adjective “overall” to both “use” and “size.” Although it is true
that Appellant renovated her basement and not her roof, those renovations changed the overall
size of the building itself by increasing its height. As to whether the DRB’s findings of fact
relating to Appellant’s Question 5 are supported by substantial evidence in the record, we are
simply to inquire whether the record includes relevant evidence that a “reasonable person
could accept . . . as adequate” support. Devers-Scott v. Office of Prof’l Regulation, 2007 VT 4, ¶
6, 181 Vt. 248 (quoting Braun v. Bd. of Dental Exam’rs, 167 Vt. 110, 114 (1997)). The DRB’s
Findings of Fact include, but are not limited to, the following:
6. The properties [sic] southeast corner is located approximately 42 feet
from the lake. The setback requirements for the Lakes district are 50 feet from the
lake.
9. As part of the renovation, the house was raised to accommodate a new
foundation. This ultimately resulted in the 12” increase in height on the
southeast corner of the structure.
14. The Environmental Court Decision, dated February 5, 2009, docket
number 292-12-07 Vtec, upheld the Ludlow’s Development review Boards [sic]
decision that a variance was needed for “the additional twelve inches of height,
but only in the nonconforming corner portion of the structure.”
19. The exterior dimensions of the structure remain, (as when the notice of
violations was sent) at the time of hearing.
DRB Findings of Fact & Decision, at 3–4. There is relevant evidence in the record that a
reasonable person could accept as adequate support for these findings. For example,
Regulations § 430 establishes that the minimum waterfront setback for permitted structures in
the Town Lakes District is 50 feet, and our February 5, 2009 decision, citing a site plan survey
conducted on October 12, 2007, states that the southeast corner of the home is 42.2 feet from the
lake. Edgar Variance Application, No. 292-12-07 Vtec, slip op. at 5. Appellant’s attorney
admitted at the hearing that “the entire house was elevated” during the additional renovations
and that the nonconforming corner of the house remains raised. (Sept. 12, 2011 DRB Hr’g 14:11,
48:2–23.); see also Edgar Variance Application, No. 292-12-07 Vtec, slip op. at 3 (Vt. Envtl. Ct.
Feb. 5, 2009) (explaining how Appellant’s renovations raised the southeast corner of the
structure by 12 inches). DRB Finding of Fact 14 quotes directly from our February 5, 2009
decision. Edgar Variance Application, No. 292-12-07 Vtec, slip op. at 7. Finally, during the
hearing, Appellant’s attorney acknowledged that the measures taken by Appellant in an
6
attempt to correct the setback violation had no effect on the height of the home. (Sept. 12, 2011
DRB Hr’g 40:20–41:7.)
We therefore conclude that the DRB did not err in determining that the offending
volume was the space above the pre-renovation height of the roofline in the nonconforming
corner of Appellant’s house.
III. The filling in of interior spaces to reduce volume for purposes of setback
nonconformity expansions
Appellant’s Question 4 asks “[d]id the Development Review Board err in its
determination of where the additional volume was created and which was subsequently
removed by the Appellant?” (Appellant’s Statement of Questions, filed Dec. 9, 2011.) Appellant
maintains that by installing a basement ceiling one foot lower than the previous basement
ceiling, she “permanently removed” that volume from the house, including the portion of the
house within the waterfront setback zone. (Appellant’s Brief 2, filed Mar. 27, 2012.) She argues
that the new ceiling thus obviates the need for a variance for the way her original renovations
had expanded the house’s volume within the setback zone.
The DRB’s Findings of Fact relating to Appellant’s Question 4 include the same findings
discussed above for Appellant’s question 5, plus the following finding:
18. Appellant has lowered ceilings within the structure, thus claiming that
the volume of nonconformity has been reduced and now complies with the
regulations.
DRB Findings of Fact & Decision, at 4. As discussed above, there is relevant evidence in
the record that a reasonable person could accept as adequate support for findings 6, 9, 14, and
19. As for finding 18, there is also adequate evidence in the record in support of this finding. In
fact, Appellant provides considerable testimony and several exhibits supporting finding 18. See
(Sept. 12, 2011 DRB Hr’g 15:2–21); (Appellant’s Photo. Ex. 6–10, filed Dec. 19, 2011.)
Next we consider the DRB’s conclusion regarding Appellant’s Question 4. As
determined above, we conclude that the DRB did not err in its determination of where the
additional “volume” of the renovated structure was created. In the context of setback
encroachments, just as one uses exterior measurements of a building’s walls to determine the
two-dimensional area it occupies (building footprint), one uses the exterior measurements of its
walls and roof to calculate the three-dimensional space it occupies (volume). The additional
encroachment into the waterfront setback is not about interior usable space or volume; rather, it
7
relates to an increase in the height of the structure (or total volume which the outside of the
structure encompasses).
Even if interior volume was at issue, the additional volume of Appellant’s house has not
been removed from the structure. The additional volume is simply divided into another space.
Filling a space with framing, insulation, or any other material so as to block human access to the
area does not “remove” the space for the purpose of assessing the setback encroachment. We
therefore concluded that the DRB did not err in determining that Appellant’s lowering of her
basement ceiling did not remedy the expansion of her nonconforming setback encroachment.
III. Alleged procedural errors
Appellant next contends that the DRB made three errors that substantially prejudiced
her. The term “prejudice” in the context of reversible evidentiary errors refers to those affecting
the parties’ substantive rights or the case’s outcome. See Harrington v. Dep't of Emp't Sec.,, 142
Vt. 340, 344 (1982) (admission of evidence at a hearing conducted by an administrative board
was harmless error where it had no impact on Board's decision).4 Thus, our inquiry here is
whether the specifically alleged procedural errors affected the DRB’s determination that
Appellant had not reduced the height of her house and therefore she violated the waterfront
setback requirements.
The first alleged error is the DRB’s admission of letters by neighbors expressing general
support for the uniform application of zoning requirements. The DRB did not explicitly rely on
these letters in reaching its decision, and Appellant has not proven that the neighbors’ letters
caused substantial prejudice. The DRB upheld the NOV on the basis that the portion of the
home extending above the previous roofline had not been removed. None of the letters bear
directly on this issue, and Appellant does not claim that she reduced the height of the building
before or after receiving the NOV. The letters therefore cannot constitute grounds for reversal.
See In re Quechee Lakes Corp., 154 Vt. 543, 557 (1990) (Appellant who failed to point to any
4 Appellant feels “prejudiced” insofar as she expended money to lower her ceiling purportedly in
reliance on what she found to be unclear guidance from this Court and from the DRB. (Appellant’s Reply
Brief 4, filed May 4, 2012). This is a misunderstanding of the term “prejudice,” and, in any case, we have
already addressed the question of ambiguity regarding the location of the offending volume.
8
Environmental Board finding based on the challenged evidence failed to demonstrate the
requisite prejudice for reversal).5
The second alleged error occurred on the first day of the hearing, when the DRB read a
memo that Director of Planning and Zoning Goings (absent due to a death in the family) had
prepared to outline the sequence of events in the case. (Transcript of Town of Ludlow Aug. 8,
2011 DRB Pub. Hearing 6:11–8:10, 15:2–21, filed July 10, 2012.) Appellant has not proven that
the recitation of Goings’ letter was an error, much less a prejudicial one. The letter was never
admitted and Appellant did eventually cross-examine Goings on its contents, albeit at the
continuation of the hearing. 6 Moreover, the DRB upheld the NOV because—as Appellant
herself does not deny—the portion of the home extending above the prior roofline remains
intact. Appellant cannot show that the oral recitation of the letter at the first hearing was an
error at all and, if so, that it changed the outcome of the case.
The third alleged error relates to recusal. At the first day of hearing, Appellant objected
to the reading of Goings’ letter on hearsay grounds, but also objected to continuing the case
pending Goings’ availability to personally testify. During the ensuing discussion about
whether a fair hearing would require a continuance, Board Member Harrison stated, “I don’t
think anything here was read that didn’t actually happen through all that time period, but that’s
up to you.” Id. at 13:11–13. He also stated, “What [Goings] said is true, ok?” Id. at 13:17–18.
Ultimately, the DRB neither admitted the memo into evidence nor used it as a basis for its
decision, and Goings testified under oath at the second day of hearing, at which time
Appellant’s counsel cross-examined her regarding the memo. (Sept. 12, 2011 DRB Hr’g 6:2–
10:21, 26:1–36:5.) Also at the second day of hearing, the DRB chair refused to grant Appellant’s
request that Harrison recuse himself based on his statement that Goings’ recitation of the events
was “true.” Id. at 4:15–5:25. The DRB chair asked Harrison whether he felt he could make “a
5We note that “prior decisions of the environmental board, water resources board, and waste facilities
panel shall be given the same weight and consideration as prior decisions of the environmental division.”
10 V.S.A. § 8504(m).
6Appellant argues that she lacked the opportunity to cross-examine Goings because the DRB instructed
her lawyer to ask his questions of the Board, which would then relay them to Goings. This argument is
unavailing. Appellant’s lawyer did directly cross-examine Goings prior to the DRB’s instruction.
Second, our review of the transcript reveals that despite the instruction, in effect Appellant’s lawyer
cross-examined Goings with little to no intervention from the DRB.
9
fair and objective decision in this matter,” and Harrison responded that he could. (Sept. 12,
2011 DRB Hr’g 5:18–20, 26:1–36:5.)
A “conflict of interest” under the DRB’s Rule of Procedure 10.3.3 includes “[a] situation
where a board member has publicly displayed a prejudgment of the merits of a particular
proceeding before the board.” The statements by Board Member Harrison which Appellant
challenges were made during the hearing, not in an out-of-hearing public forum. He did so
while discussing whether accepting into evidence a letter from a witness who was absent due to
a death in the family could spare Appellant the inconvenience of returning for a continued
hearing. While as a general matter we question the propriety of a decision-maker expressing
confidence in the reliability of unsworn testimony, Harrison’s remarks in the context of this case
do not appear to be a prejudgment on the merits so much as a consideration of procedural
matters, a critical function of decision-making bodies. We agree with the DRB’s determination
that Harrison’s statements when taken in context did not rise to the level of a conflict of interest
requiring recusal.
Conclusion
For the reasons detailed above, we conclude that the DRB did not err in upholding the
NOV based on Appellant’s failure to remove the offending portion of the building. We also
conclude that the procedural issues Appellant raises do not require reversal. The corner of the
house that encroaches into the waterfront setback area remains 12 inches taller than it was
before the renovation. Until Appellant reduces the building height so that it no longer extends
above the pre-renovation roofline, she remains in violation of the Town’s waterfront setback
provisions.
Done at Berlin, Vermont this 28th day of September, 2012.
Thomas G. Walsh,
Environmental Judge
10