McDermott Conditional Use Application

STATE OF VERMONT
ENVIRONMENTAL COURT
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McDermott Conditional Use Application } Docket No. 11-1-06 Vtec
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Decision and Order Motion for Summary Judgment
Appellants Gary and Lori Grzywna appealed from the decision1 of the Town of Williston
(Town) Development Review Board (DRB), approving Applicant Kevin McDermott’s
conditional use application for a proposed three-car garage addition to their residential property
at 276 Sherwood Forest Road.
Mr. McDermott has not entered an appearance in this appeal. Appellants are represented
by Mark G. Hall, Esq. and David M. Pocius, Esq.; the Town is represented by Paul S. Gillies,
Esq. Now pending is Appellants’ motion for summary judgment.
Factual Background2
1. Applicant Kevin McDermott (“Applicant”) owns a 14.9± acre parcel of land
located at 276 Sherwood Forest Road, in the Town’s Ridgeline/Wooded Hillside Protection
Overlay District.
2. On June 21, 2005, Applicant applied to the DRB for conditional use approval for
a new three-car garage with storage capacity. The proposed new garage would be in addition to
the existing garage on Applicant’s property that adjoins his residence.
3. The proposed new garage would be on a newly cleared area, separate from the
cleared area upon which Applicant’s existing residence, garage, pool, septic system and
driveways are located. The proposed new garage would be accessed by a separate, pre-existing
gravel driveway that spurs off of Applicant’s paved driveway to his residence.3
1  The DRB minutes from its meeting on December 13, 2005 reflect that the DRB granted Applicant’s conditional
use request on that date. The December 13, 2005 minutes were approved at the DRB’s meeting on January 10,
2006. After this appeal was filed, the DRB issued a “Notice of Decision” on January 20, 2006 that memorialized
that Appellant’s conditional use request had been approved.
All facts recited in this Decision have been represented by the parties as being undisputed unless otherwise noted.
2
Where disputed, we have viewed such facts in a light most favorable to the Town, which is the non-moving party.
Christman v. Davis, 179 Vt. 99, 101 (2005).
3  These facts are gleaned from the site plan entitled “McDermott Property” that was filed with the Court.
4. The existing cleared area on the property, counting only the existing house, pre-
existing garage, pool, septic system and yard, totals 0.38 acres.
5. There are two existing driveways on the property. The main driveway is paved
and leads to Applicant’s existing house, garage, pool and yard. The second driveway is gravel
and leads to a separate propone tank. This second driveway, once extended, will serve
Applicant’s proposed new garage. These two driveways consist of a cleared area of
approximately 0.7 acres.
6. The additional area to be cleared for the proposed new garage, not counting the
access drive, is estimated to be .06 acres.
7. If the cleared area for the existing driveways and the proposed new garage are
included in the total cleared area, the total cleared area is well in excess of 0.5 acres.
Discussion
Applicant proposes to construct a new garage on his property in the Ridgeline/Wooded
Hillside Protection Overlay District (“Overlay District”). Any proposed development in the
Overlay District must receive conditional use approval from the DRB. Town of Williston
Zoning Ordinance (“Ordinance”) § 3.15.7(B). Development in the Overlay District is subject to
a number of limitations intended to further the purposes of the Overlay District, which include
the following: “to ensure that development in the district does not have an adverse impact on the
Town’s visual character, does not result in excessive soil erosion, and does not interfere with
significant wildlife habitat or corridors.” Ordinance § 3.15.1.
Various limitations imposed by Ordinance § 3.15.6 bar development on top of high
points, require building exteriors to blend with their surroundings, bar large expanses of glass,
bar clear cutting, and require that any selective cutting of trees maintain the continuity of the
skyline. At issue in this appeal is the limitation on development in the Overlay District found in
Ordinance § 3.15.6(A)(9)(a), which states that:
9) Trees may be cleared to create a yard around a dwelling provided that:
a) The yard, including the footprints of all structures, waste water
treatment facilities, swimming pools, tennis courts, parking and
circulation areas, etc., may not exceed 0.5 acres or fifty (50) percent of
the lot size, whichever is smaller[.]
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Appellants argue that the existing cleared area on Applicant’s property already exceeds
0.5 acres,4 and that the DRB arrived at its estimate of a cleared area of 0.38 acres by improperly
excluding certain areas already cleared of trees, including the existing driveways, the existing
pool deck, and other cleared areas. We are therefore faced with the legal question of what
cleared area should be included in the calculation required by Ordinance § 3.15.6(A)(9)(a). If
these additional areas should be included, then the Ordinance prohibits further development that
necessitates additional clearing. Because the parties to this appeal do not dispute the material
facts here, but rather how they should be applied to Ordinance § 3.15.6(A)(9)(a), this matter is
ripe for resolution on a summary basis. Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264
(1981).
The Town admits that “conditional use approval cannot be granted unless the extent of
clearing on the property does not exceed 0.5 acres.” Town’s Statement of Material Facts at ¶ 11.
However, the Town argues that the 0.5-acre limit has not yet been reached on Applicant’s
property, because driveways and utilities should not be considered “cleared land” for the purpose
of the calculation under Ordinance § 3.15.6(A)(9)(a), noting that the term “cleared” is not
defined in the ordinance.5 The Town also appears to assert that only the new area proposed to be
cleared should be calculated in determining conformance with the Ordinance.
The Town justifies excluding driveways and utility lines from the calculation on two
grounds. First, the Town argues that Ordinance § 3.15.6(A)(9)(a) relates to clearing “to create a
yard,” and as “driveways [and utility lines] are not part of a yard, [they] should not be considered
as part of any clearing.” Town’s Resp. to Mot. for Summ. J. at 1–2.6 Second, the existing
cleared areas pre-date zoning, and therefore are “not relevant to the calculations required for the
present application.” Town’s Resp. to Mot. for Summ. J. at 2. We disagree.
The Ordinance provides that parking and circulation areas must be considered as part of
the cleared area, along with structure footprints, swimming pools, and tennis courts—any of
which could otherwise be said to be “not part of a yard.” This language instructs that the cleared
4
See the Affidavit of John P. Pitrowiski, P.E. attached to Appellants’ Mot. for Summ. J. (stating that the existing
cleared areas “far exceed 0.5 acres” and that the existing driveways represent at least 0.7 acres of cleared land). The
Town offered no factual representations refuting those found in Mr. Pitrowiski’s Affidavit. Those facts are therefore
deemed admitted for the purposes of our review of the pending motion. V.R.C.P. 56(e).
5
See Town’s Resp. to Mot. for Summ. J. at 1 (“It is all fine to turn to the dictionary, but alone that settles
nothing.”).
6
See also the Affidavit of Lee Nellis, Town Planner, attached to Town’s Resp. to Mot. for Summ. J. (“the town has
never included driveways or utility lines in its calculations of the ‘cleared’ area.”).
Page 3.
area to be counted includes more than what a common definition of a “yard” entails. In this
regard, when searching for the proper interpretation of a zoning regulation, we follow the first
rule of statutory construction: look to the language of the very regulation we are seeking to
define. See Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 525 (1999) (“Ordinances are to be
interpreted according to the basic rules of statutory construction and enforced in accordance with
their plain meaning.”).
While we find clarity in the explanation in Ordinance § 3.15.6(A)(9)(a) of what areas
must be included, we are also guided by the overall focus of the various limitations to
development in the Overlay District, which is to preserve standing trees and minimize the visual
impacts of development. To the extent that we interpreted the cleared area term more
restrictively, such that more clearing would be allowed, the potential would be increased for
adverse impacts on the Town’s visual character, soil erosion, and significant wildlife habitat and
corridors in this highly regarded area of wooded hillsides and ridgelines.7
Ordinance § 3.15.6 requires that no conditional use approval be granted unless an
extensive list of conditions is met, including the condition that the cleared area on a lot cannot
exceed 0.5 acres or fifty percent of the lot, whichever is smaller. The calculation of the cleared
area must include any area where trees are or have been removed, even if those areas are not
grassy or otherwise “yard-like.” We find as a matter of law that the term “parking and
circulation areas, etc.” includes driveways and access roads, and therefore conclude that areas
cleared for driveways and access roads must be counted in the calculation of cleared areas under
§ 3.15.6(A)(9)(a). Because the inclusion of the area cleared for the existing driveway results in
total cleared area on Applicant’s property of more than 0.5 acres, we need not rule on whether
utility lines or pool decks should also be included in the calculation of the total cleared area.
Furthermore, the fact that some or all of the clearing on a parcel may pre-date zoning
does not mean that the pre-existing cleared areas can be ignored when the DRB in the first
instance, or this Court on appeal, is considering the question of whether conditional use approval
may be granted for new construction in the Overlay District. Conditional use approval in this
7  In reaching this conclusion, we recognize that we are in conflict with the interpretation of the Ordinance suggested
by the Town. We regret this conflict and do not reach it without considering the legitimate deference that should be
afforded those professionals and volunteers who regularly take up the responsibility of interpreting zoning
regulations within their own communities. In re Korbet, 178 Vt. 459, 462 (2005), citing In re Maple Tree Place, 156
Vt. 494, 500 (1991). In this instance, however, the language of Ordinance § 3.15.6(A)(9)(a) appears clear and not
supportive of the conclusions offered by the Town.
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district may only be granted if the extent of clearing on the property totals less than 0.5 acres.
The argument that clearing that occurred prior to zoning need not be counted is not support by
any legal precedent of which we have been made aware. In fact, the most analogous legal
precedent that comes to mind relates to pre-existing uses that no longer conform to current
zoning regulations. Communities are required to allow such nonconformities to continue, but are
entitled to “regulate and prohibit expansion” of uses that no longer conform to their zoning
regulations. 24 V.S.A. § 4412(7)(A). Williston has chosen to prohibit the expansion of
nonconforming uses, see Ordinance § 4.4.3. We cannot reconcile this approach to
nonconforming uses with an allowance of total cleared area in the Overlay District beyond that
mandated by Ordinance § 3.15.6(A)(9)(a). We therefore cannot find a legal foundation for
concluding that the Ordinance allows previously cleared areas in the Overlay District to be
ignored.
Accordingly, based on the forgoing, we hereby GRANT Appellants’ motion for
summary judgment. In doing so, we specifically REVERSE and VACATE the DRB’s decision
granting conditional approval to Kevin McDermott for construction of a new three-car garage
and associated clearing of trees in the Ridgeline/Wooded Hillside Protection Overlay District.
Today’s Decision concludes the pending appeal. A Judgment Order accompanies this Decision.
Done at Berlin, Vermont, this 21st day of December, 2006.
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Thomas S. Durkin, Environmental Judge
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