Swierz Loft Addition ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Swierz Loft Addition } Docket No. 84-5-08 Vtec
In re: Swierz Enclosed Porch Addition } Docket No. 88-5-08 Vtec
(Appeals of Supeno and Ernst) }
}
Decision and Order on Motion for Summary Judgment
Appellants Barbara Supeno and Barbara Ernst appealed from decisions of the
Development Review Board (DRB) of the Town of Addison, approving additions to an
existing building as conditional use review under §§ 3.7(B)(3) and 5.7 of the Zoning
Regulations, and that no variance was required for either addition. Appellants are
represented by Vincent A. Paradis, Esq. and Chad V. Bonanni, Esq.; Appellee-
Applicants Gregory Swierz and Joanne Swierz have appeared and represent
themselves; the Town is represented by Donald R. Powers, Esq.; and interested parties
Roger Sleeper, Jack Anderson and Louisa Anderson have appeared and represent
themselves. Appellants have moved for summary judgment on Question 2 of the
Statement of Questions as to whether a variance is required for either application.
In the entry order dated October 13, 2008, the Court asked for additional briefing
to explain the parties’ positions as to the location of the front setback line. With respect
to any new construction within the setback areas, that entry order asked the parties to
address the concept that increases in height within the setback area represent an
increase in the degree of noncompliance of the noncomplying structure, as discussed in,
e.g., the following cases and cases cited therein: In re Snelgrove Permit Amendment,
No. 25-1-07 Vtec, slip op. at 7–8 (Vt. Envtl. Ct. July 18, 2008) (increase in volume of
noncomplying structure within required setback area); In re Bloch Occupancy Permit,
No. 94-5-05 Vtec, slip op. at 1–2 (Vt. Envtl. Ct. Oct. 24, 2005) (additional height within
1
setback); Appeal of Barnes, No. 154-8-04 Vtec, slip op. at 6–7 (Vt. Envtl. Ct. May 18,
2005) (additional height added to pre-existing noncomplying structure within setback);
see In re Appeal of Dunnett, 172 Vt. 196, 202–03 (2001) (affirming denial of enlargement
of portion of building within side setback area under nonconforming structure
provisions of bylaw); In re Appeal of Tucker, No. 123-7-98 Vtec (Vt. Envtl. Ct. Aug. 2,
1999); aff’d No. 1999-399 (Vt., Mar. 10, 2000) (unpublished mem.) (three-justice panel)
(permit allowing one-story building extending into side setbacks does not authorize
expansion to two stories).
Appellants and Appellee-Applicants appear to agree that the 75-foot front
setback is to be measured from the centerline of the private right-of-way serving the
property, even though the property does not appear to have any frontage along that
right-of-way, but instead appears only to have a driveway leading from that right-of-
way onto Appellee-Applicants’ property. The Town has not provided any
interpretation of its Zoning Regulations on this point. The source of this setback
requirement is unclear to the Court from the Zoning Regulations; the parties should be
prepared to address whether the property has any frontage, and therefore has a front
setback area, or whether it has only side, rear and shoreline setbacks, if it has no
frontage on a private or public road or right-of-way.
From the diagrams most recently submitted by the parties, it appears that in the
area of the Swierz driveway, Appellants are measuring the 75-foot setback from the
point at which the Swierz driveway crosses the Swierz property line, and not from the
centerline of the private right-of-way, while Appellee-Applicants, on the other hand, are
measuring the 75 foot setback from the centerline of the right-of-way without regard to
the driveway. In the area to the west of and including the southerly corner of the
Swierz house, material facts are disputed as to the measurement from the right-of-way
to the property line, and from the right-of-way to the corner of the house.
2
Summary judgment must be denied, as material facts are in dispute as to the
location and extent of the required setback, although it appears to the Court that the
measurements from the centerline of the right-of-way to the corner of the Swierz house
should be capable of being ascertained. However, for the guidance of the parties in
their scheduled mediation, if no parts of the horizontal or vertical additions extend into
a required setback, then, as the existing structure is noncomplying, the enlargements
only require conditional use approval under § 3.7(B)(3), and do not require a variance.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellants’ Motion for Summary Judgment is DENIED.
Done at Berlin, Vermont, this 29th day of October, 2008.
_________________________________________________
Merideth Wright
Environmental Judge
3