by Doug McClure
GREENSBORO – The Vermont Supreme Court weighed in on a proposed change to a longstanding structure on Caspian Lake that has worked its way through the Development Review Board (DRB) and the Environmental Division of the Vermont judiciary.
In 2018, property owners Marian Wright and Greg Boester went before the DRB asking to add a third level to their shoreline property. The DRB approved the reconstruction of the property but rejected the third-floor addition because it increased the building’s height. The board’s rationale was, in part, that the structure should be considered a “boat house” and not an “accessory building,” which limited the building’s height under Greensboro’s zoning rules.
The applicants had appealed the DRB’s 2018 decision to the Environmental Division of the Vermont Judiciary in 2019. One key issue was whether the structure was, in fact, a “boat house,” with a maximum allowed height of fifteen feet. The applicants asserted that the building was an “accessory structure,” which under zoning rules could be up to 30 feet high. The applicants wanted the Environmental Court to issue a summary judgment that the building should properly be considered an “accessory structure” and the court agreed.
Greensboro and the abutting neighbors had requested the opposite finding, that the structure was a boathouse, arguing, in part, that the height increase would cause an “undue adverse effect” which was not allowed by the bylaws. The Environmental Division rejected that request on the basis that the question of an “undue adverse effect” was not raised in the initial appeal.
While the matter was in front of the court, Wright and Boester submitted a redesigned plan. The Vermont Supreme Court stated that the building in the revised plan “continued to have a third story but was three feet shorter than the initial proposal — making it seven feet higher than the existing structure, lower than the maximum height for accessory structures and higher than the maximum height for boathouses.” The first floor was reduced to a “four-foot-high ‘crawlspace'” storage area for boats. The plan also called for rotating the building’s footprint away and moving it back from the shore three feet more. The applicants argued these changes were to address concerns over the proximity of their dock to neighboring properties. A fiberglass ramp would be installed.”
The Supreme Court noted in its October 2021 ruling that the structure predates Greensboro’s 1972 Zoning Bylaws and “it is undisputed that the structure is therefore a legal non-comforming structure,” essentially meaning the structure was grandfathered. But, the court noted, such structures “may not be ‘moved, altered, extended, or enlarged in a manner that will increase the existing degree of non-conformance.'”
The DRB requested that the Environmental Division remand the plan to the DRB because of the changes. The Environmental Division court disagreed, stating that the concerns were not “material and substantial” since it had already ruled that the structure was an accessory structure and not a boathouse.
The Vermont Supreme Court did not agree with that ruling. Its terse assessment over the question was “we conclude the structure is a boat house with a pre-existing nonconforming use under the bylaws, and therefore do not reach the other issues in this appeal.” In making that judgment, the Supreme Court noted “the purpose of the bylaws is to promote the Greensboro Town Plan, which aims to preserve the lake and surrounding land protecting the shorelines from erosion and overdevelopment.” It also found that Greensboro’s creation of special shoreline-adjacent areas buttressed its claim that the proposed structure would be a boathouse.
The Supreme Court had a bigger issue with the Environmental Division’s failure to remand the redesigned structure to the DRB. Citing precedent, the court noted that a process exists “in order to avoid the type of ‘procedural ping-pong match’ occasioned by requiring every minor revision… to be remanded for municipal consideration.” It disagreed that in this case the changes were not substantial enough, and furthermore, the Environmental Division effectively usurped the DRB’s authority in a manner that contravened “its role as appellate tribunal.” The Supreme Court cited “cautionary language of Chioffi v. Winooski Zoning Bd…. that ‘the court must resist the impulse to view itself as a super planning commission.'”
It wrote that, based on multiple precedents, “in this case, the revisions presented were not minor because they implicated additional analyses the DRB did not have occasion to consider… and because they might have invoked comment from interested persons who had no objection to the original plan. The new proposal would shift the building much closer to the current nonconforming septic system and add a fiberglass ramp at the shoreline within the heavily regulated SBRZ [Shoreland Buffer Resource Zone].”
It added that, especially given the SBRZ, “although the relocation of a structure by a matter of feet might be a minor change not requiring remand under many circumstances, we cannot so conclude under the circumstances of this case. In drafting its zoning ordinances, the Town of Greensboro placed a dual layer of protection of the delicate shoreline ecosystem… because the revised proposal presented issues to court which had not been addressed by the DRB… the Environmental Division should have remanded it.”
Nat Smith of the DRB said “The ruling supports local zoning boards (DRBs) and Planning Commissions as well as overturning the lower court’s decision.”