STATE OF VERMONT
ENVIRONMENTAL COURT
}
In
re: Bloch Occupancy Permit
}
Docket No. 94-5-05 Vtec
(Appeal
of Pete)
}
}
Decision and Order on Motions for Summary
Judgment
Appellants
Richard and Teresa Pete appealed from a decision of the Zoning Board of
Adjustment (ZBA) of the Town of Charlotte, upholding the Zoning
Administrator=s
grant of a Certificate of Occupancy to Appellee-Applicants Robert and Nancy
Bloch. Appellants have appeared and represent themselves; Appellee-Applicants
are represented by Thomas F. Heilmann, Esq.; and the Town is represented by Will
S. Baker, Esq. Appellee-Applicants
have moved for summary judgment.
The following facts are undisputed unless otherwise
noted.
In
May of 2004, Appellee-Applicants applied for a zoning permit for an addition[1]
to the family room and master bedroom of their single-family house at 1188
Whalley Road, in the Rural zoning district. The house is non-conforming because it
does not meet the 50-foot side yard setback required in the district, as a
ground-floor porch extends to approximately 25 feet from the side property line
adjacent to Appellants=
property.
Appellee-Applicants
proposed to replace the nonconforming ground-floor porch with an enclosed family
room on the ground floor, and to extend it vertically to accommodate an expanded
master bedroom on the second floor.
The proposed changes did not extend any closer to the side property line
than did the existing nonconforming porch, but they would occupy a greater
volume of the setback area, and therefore were an expansion of the nonconforming
structure that should have been reviewed under '6.6[2]
of the Zoning Bylaws. See
In re Appeal of Tucker, Docket No. 123-7-98 Vtec (Vt. Envtl. Ct., Aug. 2,
1999); aff=d
Docket No. 1999-399 (Vt. Sup. Ct., Mar. 10, 2000) (three justice panel,
unpublished) (permit to build one‑story building extending into side setbacks
does not authorize expansion to two stories within the setbacks, even though it
would not have violated the height limitations or extended laterally any farther
into the setbacks).
Instead
of referring the application for consideration as an expansion of a
nonconforming use, the Zoning Administrator approved it as a permitted use. No party appealed the Zoning
Administrator=s
decision to the ZBA, so that the zoning permit (#04-33-TM) became final on May
25, 2004.
Appellee-Applicants
completed construction in late January of 2005, and applied for a Certificate of
Occupancy. A Certificate of
Occupancy certifies that the work for which the permit was issued was completed
in accordance with the approved plans and specifications and was completed in
accordance with Athe
requirements of these regulations.@ Bylaws '6.2(B). The Zoning Administrator took a site
visit and inspected the construction, determined that
Appellee-Applicants=
addition complied with the zoning permit, and issued the Certificate of
Occupancy. Appellants appealed its
issuance to the ZBA and appealed the ZBA=s
action upholding its issuance to this Court.
Appellants
first argue that the Zoning Administrator issued the May 2004 zoning permit in
error because it unlawfully authorized the expansion of a non-conforming
use. While Appellants are correct
that the zoning permit was issued in error, the opportunity to appeal that
zoning permit was to appeal it to the ZBA within fifteen days of its issuance by
the Zoning Administrator. In the
absence of such an appeal, it cannot now be challenged, either directly or, as
here, indirectly. 24 V.S.A.
'4472(d);
Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142
(1989).
Appellants
next argue that the Zoning Administrator illegally issued the Certificate of
Occupancy because, to obtain a Certificate of Occupancy,
Appellee-Applicants=
addition must not only comply with its permit but must also comply with the
requirements of the zoning bylaws, and it does not do so. However, under 24 V.S.A. '4472(d),
a challenge to the Certificate of Occupancy for this reason would also
constitute an impermissible indirect challenge to the final, unappealed zoning
permit. See Appeal of
Conrad, Docket No. 52-3-00 Vtec, slip op. at 3B4
(Vt. Envtl. Ct., April 12, 2002).
Appellants
also argue that Appellee-Applicants=
zoning permit will entitle Appellee-Applicants to make unlimited additional
illegal changes to their property in the future, based upon the
improperly-issued but final permit.
However, as the expansion authorized by the 2004 permit was Aimproperly
authorized as a result of an error by the administrative officer@
it remains defined as a nonconformity. 24 V.S.A. ''4303(13),
(14) and (15). Any future
modifications would require review by the ZBA, not the Zoning Administrator,
under '6.6
or whatever provisions of the Bylaws govern non-conforming uses at the time of
the future application.
Accordingly,
based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellee-Applicants=
motion for summary judgment is GRANTED, and the Zoning Administrator=s
issuance of the Certificate of Occupancy is upheld, thereby concluding this
appeal.
Done
at Berlin, Vermont, this 24th day of October,
2005.
_________________________________________________
Merideth
Wright
Environmental
Judge