Wellarkes Vt, LLC

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 89-6-14 Vtec
Wellarkes VT, LLC DECISION ON THE MERITS
The question presented in this appeal is whether Wellarkes VT, LLC (Applicant), the
owner of 91 Catamount Drive in the Town of Leicester, Vermont, is entitled to a waiver for the
placement of a screened-in porch within the front and side yard setbacks required by the Town
of Leicester Zoning Bylaws (the Regulations). Applicant sought a waiver from the Town of
Leicester Zoning Board of Adjustment (ZBA) to authorize a small screened-in porch on the back
of recently reconstructed residential house. A small triangular portion of the porch encroaches
into the side yard setback. Like the entire residence, the entire porch is within the front yard
setback. The ZBA’s denial of the application resulted in the present appeal.
The Court conducted a site visit on the morning of the merits hearing on April 24, 2015.
Appearing at the site visit and trial were Mr. David Weller, a member of Wellarkes VT, LLC, and
its attorney Ebenezer Punderson, Esq. and architect Elizabeth Hermann. Also present were two
neighboring property owners, Ms. Susan W. Potter and Mr. Eric Houwen, each appearing as
self- represented litigants.
Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact and Conclusions of Law.
Findings of Fact
1. Wellarkes VT, LLC (Applicant) owns the 0.2 acre parcel and single family house at 91
Catamount Drive, Leicester, Vermont (Property).
2. David Weller is a member of the LLC.
3. The existing house is a recent reconstruction of a former residence.
4. The existing house is two stories with a basement approximating 1,923 square feet,
which is larger than the former house, a single story cottage on concrete footers.
5. The Property is located in the Lake 1 zoning district.
6. The Property is fairly flat and the area of the proposed porch is not on a steep slope.
7. Access to the Property is over a private road shared by other single family homes of
similar size.
8. Applicant seeks approval to add a screened-in porch with a sloped roof to the backside
of the existing house. The proposed porch is 8.5 feet by 10 feet for a total of 85 square
feet. The sloped porch roof is 13 feet at its highest point adjacent to the house and has
a shallow slope away from the subject residence to the northeast.
9. The roof of the porch, and of the house, is metal standing seam, which is a common roof
material in the area. The porch’s wood siding, which matches the siding of the house, is
also similar to other porches in the area.
10. The porch is located 22 feet from the Properties’ northern boundary, which is shared
with the neighboring property owned by the McCulloughs.
11. The house on the McCullough property is located within a few feet of the common
boundary with the Property.
12. The house and porch are located entirely within the 75 foot front yard setback from
Lake Dunmore (lake side or front yard setback).
13. The porch is proposed on the east or back side of the house, away from Lake Dunmore
which lies to the west. A majority of the house is closer to Lake Dunmore than the
porch.
14. A triangular portion of approximately 8.9 square feet of the corner of the porch closest
to the McCullough property intrudes into the northern side yard setback.
15. Eric Houwen owns the adjacent parcel to the east of the Property. Mr. Houwen has
three separate dwellings on his parcel. One located to the northeast, a second to the
east, and the third to the southeast.
16. Mr. Houwen’s dwelling to the southeast is located fairly close to the shoreline of Lake
Dunmore. The proposed porch will not impact view of the lake from this dwelling.
17. Applicant’s house is within Mr. Houwen’s two other dwellings’ views of the lake.
Neither Applicant’s home nor the proposed porch will block views of the lake from
either of these two dwellings.
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18. Susan Potter owns a parcel developed with a residence along the Lake Dunmore
shoreline opposite from the Property.
19. Ms. Potter also owns a separate undeveloped parcel to the southeast of the Property.
This parcel is of higher elevation than the Property.
20. Applicant’s home is constructed with a silver standing seam metal roof. At different
times of sunny days, due to the direction and pitch of the roof, significant sun glare
adversely impacts lake views from Mr. Houwen’s dwellings and from Ms. Potter’s
property on the opposition side of the lake.
21. Due to the proposed location of the porch and the pitch of the porch’s roof, the porch
roof will not create any additional glare for any of the Houwen or Potter properties.
22. The landscape plantings proposed as part of the porch project soften the visual impact
of the porch, but do not materially block any lake views from neighboring properties.
23. Top soil is proposed to be added to the ground surface around the porch and the area
will be graded thereby creating the appearance of a harmonious single structure
including the existing residence and proposed porch.
Conclusions of Law
In the appeal before us, the parties do not dispute that the proposed porch is located
within the front yard setback and partially within the side yard setbacks. The parties’ dispute
instead centers on whether the application for an 8.5-foot by 10-foot screened-in porch
satisfies § 363(7) of the Regulations regarding waivers of the dimensional setbacks.
The ZBA, and thus this Court on appeal, may grant a waiver approving of a reduced
dimensional requirement upon satisfaction of the following standards:
a. The waiver requested is for a use permitted within the district in question as by
right use (as opposed to conditional use.).
b. The waiver requested is in conformance with the town plan and the goals set
forth in Section 4302 of the Act.
c. The waiver requested is designed to conform to the character of the land use
area in which it lies as defined in the Plan and further designed to reasonably
limit impact or the potential for impact upon ones neighbors.
d. The design used incorporates design techniques (restricted height, lack of
windows) screening (fencing or plantings) or other remedies to reasonably limit
impact or the potential for impact upon ones neighbors.
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e. The waiver requested accommodates structures providing for disability
accessibility, fire safety and other requirements of land or energy conservation
or renewable energy structures.
Regulation § 363(7).
Before we analyze each of the above standards in turn, we note that neighbors Mr.
Houwen and Ms. Potter offered testimony that Applicant’s newly reconstructed house is much
bigger and has more impacts then the formerly existing residence. While we are sympathetic
to neighbors’ concerns of impacts to their property interests, we stress that the matter before
the Court is not a consideration of pre-existing non-conformities and whether the porch
increases any alleged non-conformities. Such issues have not been raised to the Court and we
are bound to limit our review to the issues expressly raised within an appellant’s statement of
questions.1 In re Garen, 174 Vt. 151, 156 (2002). We therefore focus specifically on the waiver
criteria established by § 363(7) of the Regulations.
a. Permitted Uses in the District
Section 363(7)(a) of the Regulations requires that the waiver requested is for a use
permitted within the district (as opposed to conditional use). The use of the property as a
single family dwelling is a permitted use in the Lake 1 District. Regulations § 270(B). Applicant
has therefore satisfied § 363(7)(a) of the Regulations.
b. Conformance with Town Plan and Goals of 24 V. S.A. § 4302
Section 363(7)(b) requires that the waiver requested is in conformance with the town
plan and the goals set forth in Section 4302 of the Act. We have previously interpreted similar
broad references of zoning regulations requiring compliance with the whole of a town plan
through the legal framework established under Criterion 10 of Act 250. See In re Quesnel
Waiver Appeal (After Remand), Docket No. 150-10-110 Vtec, slip. op at 6 (Vt. Super. Ct. Envtl.
Div. July 2, 2012) (Walsh, J.). Our analysis of whether Applicant’s porch complies with the
Leicester Town Plan (Town Plan) necessarily begins with a determination of what provisions
must be used to test such compliance. Id. at 8. We need only consider those goals and
objectives which are mandatory and specific in nature and relate to the proposed development.
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Similarly, during trial the neighbors raised concerns of adverse impacts to drainage. Again, this issue is not
included within the waiver criteria of Section 363(7) of the Regulations. Even if drainage issues were before the
Court, Applicant provided evidence to show that the porch would not cause adverse drainage issues, in large part
because the porch is elevated on piers and landscaping will stabilize soil and slow run-off.
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Id. at 7 (citing Re: J. Flynn Estate and Keystone Dev. Corp., #4C0790-2-EB, Findings of Fact,
Concl. of Law, and Order, at 27–28 (Vt. Envtl. Bd. May 4, 2004)). To be enforceable, goals and
objectives must apply to and be intended to regulate conduct in the area in which the proposed
porch is located and must be sufficiently clear to guide an average person’s conduct. Id.
“Aspirational language such as ‘encourage’ or ‘promote’ merely state a town’s desires, and,
without more specificity, such language cannot be read as restricting specific activities.” Id. If
no goal or objective in the Town Plan presents mandatory language, our analysis ends. We
therefore first determine whether the Town Plan establishes mandatory, specific goals or
objectives to which Applicant’s porch must conform.
Neighbors Potter and Houwen suggest that the Town Plan incorporates a 2008 Leicester
Lakes Area Pattern Book (Pattern Book), completed by the Leicester Planning Commission,
which serves as a measure of the proposed porch’s compliance with the Town Plan. We
disagree. The Town Plan does not require compliance with the Pattern Book. The Town Plan
itself refers to the Pattern Book as a “design guide for developers and property owners in the
Lake 1. It suggests ways in which new construction/renovation can reinforce the distinctive,
historic character of the Lake District and integrate well into the existing landscape.” Town Plan
at page 46 (emphasis added). By using the terms “guide” and “suggests,” the Town Plan is clear
that its reference to the Pattern Book and the recommendations therein are aspirational and
not mandatory. The parties did not offer any other areas of the Town Plan as providing
mandatory provisions that regulate the proposed porch. Additionally, our review of the Town
Plan does not reveal any other policy sections or provisions that apply to the proposed porch at
issue in this appeal. Thus, our analysis ends on this criterion.2
Next, we conclude that the porch complies with 24 V. S.A. § 4302. Section 4302
expresses the purpose and goals of municipal development generally, establishing several
general purposes, including, in pertinent part, “encourage[ing] appropriate architectural design
. . . ; protect[ing] residential . . . areas from overcrowding of land and buildings . . . ; [and]
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In reaching this conclusion we reviewed the Pattern Book. The first 10 to 12 pages of the Pattern Book review
the history and existing land uses along the shore of Lake Dunmore. Page 13 sets for “Recommendations for New
Building and Construction.” Recommendations by their nature are not mandatory, and thus, not regulatory. Even
so, during trial Applicant’s Architect testified to how she designed the proposed porch to comply with the relevant
Pattern Book recommendations. This testimony was persuasive and thus, even if the Court considered the Pattern
Book it would determine that the porch complies with the recommendations contained therein.
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facilitat[ing] the growth of . . . neighborhoods so as to create an optimum environment . . . .”
24 V. S.A. § 4302(a). Applicant’s architect, Ms. Hermann, testified at trial that existing
development in the area and along the lakeshore includes single family homes with screened-in
porches similar in architectural design to the proposed porch’s design. Furthermore, there is no
evidence that the porch results in an overcrowding of land or buildings in the neighborhood.
Sections 4302(b) & 4302(c) set forth a variety of goals for municipal development. The
porch is a very limited project, and, as such, §§ 4302(b) & (c) are mostly inapplicable.
Accordingly, we conclude that the porch complies with the Town Plan as well as the
goals set forth in 24 V.S.A. § 4302. Applicant has thus satisfied § 363(7)(b) of the Regulations.
c. Character of the Area from the Town Plan
Section 363(7)(c) requires that the waiver requested is designed to conform to the
character of the land use area in which it lies as defined in the Town Plan and further designed
to reasonably limit impact or the potential for impact upon one’s neighbors. The Town Plan
divides the Town into several land use areas. The subject property is located within the Town
Plan’s Lake District Area. Town Plan at 45. The Lake District Area is generally described as
including the area around Lake Dunmore and Fern Lake and is further divided into two districts:
Lake 1 being the 150 feet strip from the mean water level and Lake 2 being 2500 feet from the
mean water level. Town Plan at 46. With reference to the Lake District Area, the Town Plan
reports that extensive subdivision and construction has taken place in the Lake 1 Area. The
Town Plan further acknowledges that small summer camps in the Lake 1 Area have been
enlarged and upgraded to year round residence. Both of these facts match the setting and
history of the subject property.
The evidence shows that the residence associated with the proposed porch is a recent
reconstruction of a smaller residence. Both the residence and the proposed porch fit within the
character of the Lake 1 Area. The design of the porch is consistent with other nearby properties
in scale, orientation, and setback. The porch is of comparable size, or smaller, when compared
to surrounding porches. Most existing porches in the Lake 1 Area are located within front and
side yard setbacks. Specifically, the McCulough residence, adjacent to the north of the
Property, is within three feet of Applicant’s common boundary. In comparison, the proposed
porch is 22 feet from that boundary. In keeping with the development pattern in the area, the
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subject residence is much larger than the proposed porch. Furthermore, the porch’s design
matches the design of the house to which it will attach. Lastly, the proposed porch is located in
a neighborhood of single family homes located in close proximity to one another.
The porch is also designed so as to limit its impact upon the surrounding neighbors. The
porch will not have exterior lighting, Applicant has proposed landscaping to soften the porch’s
aesthetic impacts, and the porch is relatively small in size and of limited height so as to
minimize impacts on views of the lake from surrounding properties. Furthermore, most of the
surrounding properties in the vicinity of the subject Property include homes with attached
porches that also encroach into setbacks. We expand this discussion in the context of
§ 363(7)(d) below.
Accordingly, the porch conforms to the character of the land use area as defined in the
Town Plan and is designed so as to limit its impact on surrounding neighbors. The proposed
porch thus complies with Section 363(7)(c).
d. Impact on Neighbors
Section 363(7)(d) requires that the project incorporate design techniques, screening, or
other remedies to reasonably limit the impact or the potential for impact upon neighbors. The
Court notes that the design of the porch incorporates design techniques and screening to limit
the potential for impact on neighbors. The porch is small in scale, a total of 85 square feet. The
design does not include any exterior lighting and only a single interior light. Landscaping is
proposed to soften the appearance of the porch and to improve the appearance of the
shoreline in the area of the porch. Top soil is proposed to be added to the ground surface
around the porch and the area will be graded thereby creating the appearance of a harmonious
single structure including the existing residence and proposed porch.
In addition to the consideration discussed above, the proposed porch will not impact
the views from the houses on Mr. Houwen’s property. The Houwen homes lie to the east and
southeast of the subject Property, and have primary lake views to the south west. See Exhibit 6
(2(A)&(B). Mr. Houwen’s home to the east of the Property has an unimpeded view of the lake
to the southwest and to the left of the southern side of Applicant’s residence; this view is on
the opposite side of Applicant’s property from where the porch is proposed to be located. This
home has a limited lake view to the west, in the direction of the porch, which is mostly
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obstructed by trees. If the propose porch is constructed, this westerly view will include the
porch in the foreground; however, the existing trees will continue to mostly obstruct the
westerly view of the lake. See Exhibits 5(1)(A) & (B). Although Mr. Houwen suggested at trial
that the porch should be located on the lake-side of the subject residence rather than along the
northern boundary with the McCullough property, Applicant’s architect explained that doing so
would further encroach into the lake side setback, which is discouraged by the Regulations and
the Pattern Book, and furthermore that the porch’s placement was selected as having the least
impact on the neighbors overall. Finally, views of the lake from Ms. Potter’s properties will not
be impacted if the proposed porch is constructed.
In addition to concerns about the impact of the porch on their views, the neighbors
raised concerns regarding reflective glare from the porch’s roof. Due to the shallow slope and
orientation to the east, however, it is not possible that the Houwen or Potter properties will be
impacted by glare from the porch roof. We therefore conclude that the proposed porch
complies with Regulation § 363(7)(d) as the design incorporates techniques to reasonably limit
impacts to or potential impact upon neighbors.
e. Accommodation for Disability, Fire Safety, or Other Requirements of Land
Section 363(7)(e) requires that the waiver requested accommodate structures providing
for disability accessibility, fire safety, and other requirements of land or energy conservation or
renewable energy structures. The parties provided no evidence at trial with respect to this
subsection. At the outset, we note that this criterion more commonly applies to public
buildings.
In evaluating compliance with this criterion we interpret the Regulation using the
familiar rules of statutory construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262.
In construing statutory or ordinance language, our “paramount goal” is to implement the intent
of its drafters. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. We will therefore “adopt
a construction that implements the ordinance's legislative purpose and, in any event, will apply
common sense.” In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotations
omitted). We will not read zoning regulations in such a way to lead to absurd results. See
Bergeron v. Boyle, 2003 VT 89, ¶ 11 n. 1, 176 Vt. 78 (stating that courts should avoid statutory
construction that leads to absurd results).
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In considering the purpose of 24 V.S.A. § 414(8) and taking a common sense approach
to the issue of waivers, we read subsection (e) of Section 363 to be an independent alternative
criteria for being awarded a waiver. Failing to satisfy subsection (e) is, therefore, not fatal as
long as subsections (a) through (d) are satisfied. It would be an absurd result to interpret the
Regulations so that only projects accommodating disability accessibility, fire safety, energy
conservation, or renewable energy to qualify for waivers of dimensional requirements.
As concluded above, the proposed porch satisfies Section 363(7)(a) – (d), and therefore,
an analysis of § 363(7)(e) is unnecessary.
Conclusion
For the reasons discussed above, we conclude that Wellarks VT, LLC is entitled to a
waiver pursuant to § 363 of the Regulations permitting the encroachment of the small
screened-in porch in the front yard setback and partially in the side yard setback. We therefore
GRANT the application for approval of the screened porch.
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
Electronically signed on July 15, 2015 at 02:18 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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