Appeal of Rawlings

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Rawlings }
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Docket No. 37-3-03
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Vtec
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Decision and Order on Motion for Summary Judgment
Appellant Margaret Rawlings appealed from a decision of the Zoning
Board of Adjustment (ZBA) of the Town of Pittsford. Appellant has
appealed the denial of a conditional use permit for a change to a
nonconforming structure. No other parties have entered an
appearance, and the merits of the application have been submitted by
summary judgment. Appellant is represented by William J. Bloomer,
Esq.
Appellant applied to replace the roof on her preexisting garage, which
encroaches into the rear and one side setback, without changing the
footprint of the building. The proposal would raise the garage roof to
be 16 feet high in the front, sloping to 14 feet high in the rear
(providing an increased storage area within the garage but not
changing the use of the garage), would change the type and
orientation of the roof from a peak roof to a shed roof draining towards
the rear of the property, and would install a wall and drainage
improvements to keep drainage from the new roof from encroaching
upon the neighboring property.
The hearing was held on August 27, 2002 but the decision was not
issued until February 10, 2003. As Appellant has made a direct appeal
of the decision, she is entitled to argue that the application should be
deemed to have been approved as of 60 days from the close of the
hearing on August 27, 2002. In re Appeal of Ashline, 14 Vt.L.Week 114
(March 28, 2003). No party has presented any evidence or argument
that would remove this sequence of events from the application of the
deemed approval remedy. There is no indication of a reason or
justification for the ZBA= s delay beyond the 60-day period. Therefore,
Appellant is correct that her application should be deemed to be
approved.
Moreover, Appellant= s application appears to meet the requirements
of ' ' 3.8.3 and 2.12.1 of the zoning regulations for approval, taking
into account the drainage improvements to protect the neighboring
property. That is, this deemed approval will not result in the grant of a
permit wholly at odds with the zoning ordinance. Appeal of Newton
Enterprises, Inc., 167 Vt. 459, 465 (1988). It creates no greater
nuisance or detriment than the existing roof. Despite the increase in
height, most of the increased height appears to be in the front and
outside of the setbacks; that is, the volume of the garage within the
setbacks appears to be roughly the same as with the prior roof
configuration, although it is not possible to make the necessary
calculations without evidence as to the height of the peak of the
existing peaked roof. The appearance of the proposal fits within the
character of the area.
Accordingly, Appellant= s Motion for Summary Judgment is GRANTED
and JUDGMENT is hereby ENTERED for APPELLANT, granting her
conditional use application to raise the garage roof, change its
drainage orientation, and install a wall and drainage improvements to
keep drainage from the new roof from encroaching upon the
neighboring property. This decision and order concludes this appeal.
Done at Barre, Vermont, this 26th day of June, 2003.
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Merideth Wright
Environmental Judge