Dufault Variance Application

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Dufault Variance Application } Docket No. 287-12-07 Vtec1
(Appeal of Dufault) }
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Decision and Order on Motion for Summary Judgment
Appellants André and Madeline Dufault appealed from a second decision of the
Development Review Board (DRB) of the Town of St. Albans, issued after remand,
denying Appellants’ variance application. Appellants are represented by Michael S.
Gawne, Esq., and the Town of St. Albans is represented by David A. Barra, Esq.
Issues of deemed approval were addressed by summary judgment, and
Appellants have now moved for summary judgment on Question 3 of their Statement
of Questions, requesting the Court to strike that portion of the St. Albans Town Zoning
Ordinance requiring ten feet of separation between a principal and an accessory
structure in order for an accessory structure to qualify for a reduced setback. The
following facts are undisputed unless otherwise noted; the description of the property
and its development history already stated in the August 4, 2008 Decision and Order
will be reiterated only as necessary to this decision.
In the Lakeshore zoning district, the dimensional requirements for the yard2
setbacks distinguish between the setback applicable to a principal structure, which is 25
feet, and that applicable to an accessory structure, which is 15 feet. Zoning Bylaws and
Subdivision Regulations, § 315(3). The term “accessory structure” is defined in Part V,
Definitions, as being “incidental and subordinate to” the principal structure. The
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Please note that this is the correct docket number, not 129-6-07 Vtec.
2 That is, other than the setbacks to a road and to the mean water mark.
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examples in the definition include “detached garages,” suggesting that attached garages
would be considered to be part of the principal structure.
Note 2 to the dimensional requirements in § 315(3) provides in full as follows:
In order to qualify for the accessory structure yard setback of 15
feet, there has to be 10 feet [of] separation between the closest parts of the
principal and the accessory structures. If the structures are less than ten
feet apart, then the yard setback for a principal structure is to be applied
to the accessory structure as well.
Appellants argue that this disparate treatment is not supported by
“considerations of public health, safety, morals, or general welfare,” and is not
supported by the purposes in the enabling legislation: 24 V.S.A. § 4302(a).
Although any ambiguity in a zoning ordinance is to be decided in favor of the
landowner because zoning ordinances are in derogation of the common law, In re
Appeal of Weeks, 167 Vt. 551, 555 (1998) (citing In re Vitale, 151 Vt. 580, 584 (1989)), no
ambiguity presents itself in the ordinance section at issue in the present case. Rather,
Appellants argue that the quoted section of the ordinance is unconstitutional as being
clearly unreasonable, irrational, arbitrary and discriminatory, and that the Court should
declare it to be invalid. See, e.g., In re Appeal of JAM Golf, LLC, 2008 VT 110, ¶¶ 13–14,
17; McLaughry v. Town of Norwich, 140 Vt. 49, 54–56 (1981).
Zoning bylaws are presumed to be valid, and thus will not be overturned by
courts unless the bylaw at issue “’clearly and beyond dispute is unreasonable,
irrational, arbitrary or discriminatory.’” In re Appeals of Letourneau, 168 Vt. 539, 544
(1998) (quoting City of Rutland v. Keiffer, 124 Vt. 357, 367 (1964)); see McLaughry, 140
Vt. at 54. Zoning ordinances are construed according to the same rules that are used to
interpret statutes. In re St. Mary’s Church Cell Tower, 2006 VT 103, ¶ 4, 180 Vt. 638(mem.) (citing In re Nott, 174 Vt. 552, 553 (2002) (mem.)).
The parties do not claim that any fundamental right or suspect class is involved
in this argument. In the absence of a fundamental right or suspect class, “challenges
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under the equal protection clause are reviewed by the ‘rational basis’ test.” Colchester
Fire Dist. No. 2 v. Sharrow, 145 Vt. 195, 198 (1984) (citing Pabst v. Comm’r of Taxes, 136
Vt. 126, 132–33 (1978)). If there is a rational basis for the distinctions, serving a
legitimate policy objective, there is no equal protection violation. State v. Stewart, 140
Vt. 389, 402 (1981) (citing State v. Carpenter, 138 Vt. 140, 142–43 (1980)). “In applying
this standard, we must look at any of the purposes that are conceivably behind the
statute.” Smith v. Town of St. Johnsbury, 150 Vt. 351, 357 (1988) (citing State v. Stewart,
140 Vt. at 402).
Due to the presumption of constitutionality, that is, the presumption that the
legislative body has not acted unreasonably or without purpose, Andrews v. Lathrop,
132 Vt. 256, 259 (1974), the Court must “uphold the classification if we can conceive of
any reasonable policy or purpose for it.” M.T. Assocs. v. Town of Randolph, 2005 VT
112, ¶ 12, 179 Vt. 81 (citing Hoffer v. Dep’t of Taxes, 2004 VT 86, ¶ 10, 177 Vt. 537(mem.)). It is not a question of whether an explicit purpose statement in the ordinance
supports the classification, but whether the classification “serves any legitimate purpose
that is conceivably behind the statute.” See Quesnel v. Town of Middlebury, 167 Vt.
252, 257 (1997) (citing State v. Stewart, 140 Vt. 389, 402 (1981)). As long as the court can
conceive of a possible rational basis for a legislative distinction, the classification should
be upheld. See Smith v. Town of St. Johnsbury, 150 Vt. 351, 359 (1988).
Regardless of whether the distinction in the ordinance should have been applied
to Appellants’ case, or whether the existing layout of Appellants’ property became
grandfathered as nonconforming when the property was internally subdivided, there is
an evident rational basis for the distinction between accessory structures that are
attached or very close to the principal structure, and those that are more than ten feet
from the principal structure.
By definition, an accessory structure and the use it houses (for example, a garage
or storage shed) is “incidental and subordinate to” the principal structure and use, and
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therefore can be expected to be less obtrusive to the neighbors. Appellants do not
contest that it is rational to require a larger setback for a principal structure (for
example, a residence) than for an accessory structure (for example, a detached garage or
storage shed). Appellants also do not claim that it is irrational to require an attached
addition to the principal structure, such as a porch or a deck, to be held to the same
setback requirements as the principal structure.
A conceivable rational basis for the contested distinction is to prevent persons
from achieving a reduced setback for a series of additions to a principal structure that
would not have been allowed if the additions had all been built or proposed at the same
time. That is, it is rational for the Town to seek to preclude landowners from first
building a house and a detached garage with the reduced setback, and then later
building a connecting segment between the two, thereby effectively avoiding the full
setback requirement for additions to the principal structure. The selection of ten feet of
separation is also a rational choice, as it represents the additional setback that otherwise
would have been required on the boundary side of the accessory structure, that is, if the
principal and the accessory structures had been built as attached structures in the first
place.
Of course, there are other ways in which the zoning ordinance could have
achieved this same goal. But the test for constitutionality is whether there is a
conceivable rational basis for the distinction, not whether the ordinance is the ideal way
to achieve the intended result. In re Appeals of Letourneau, 168 Vt. 539, 544 (1998).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellants’ Motion for Summary Judgment is DENIED, Summary Judgment is
GRANTED to the Town on Question 3 of the Statement of Questions. A telephone
conference has been scheduled (see enclosed notice) to discuss the issues that remain in
the case, and whether an evidentiary hearing should be scheduled. Please also be
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prepared to discuss the issues raised in footnotes 1 and 2 of the August 4, 2008 Decision
and Order.
Done at Berlin, Vermont, this 18th day of March, 2009.
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Merideth Wright
Environmental Judge
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