In re Shearer Variance

 
                                ENTRY ORDER
 
                      SUPREME COURT DOCKET NO. 88-393
 
                        SPECIAL JANUARY TERM, 1990
 
In re Shearer Variance            }          APPEALED FROM:
                                  }
                                  }          Chittenden Superior Court
                                  }
                                  }          DOCKET NO. S843-88CnC
 
             In the above entitled cause the Clerk will enter:
 
     The trial court's rulings are not clearly erroneous, arbitrary or
capricious.  In re McDonald, slip op. at 3-4 (Vt. Mar. 3, 1989).  The
rotting and unsound beams and joists constituted "damage" to the structure
as that term is commonly understood and was brought about by a cause
"similar" to "fire, collapse, [or] explosion."  Shelburne Zoning Bylaws.  {
1420.2(4).  We must read the ordinance strictly resolving any doubts in
favor of the landowner.  See, e.g., In re Vitale, slip op. at 6 (Vt. Apr.
21, 1989) ("in construing land use regulations any uncertainty must be
decided in favor of the property owner").  There is no reasonable way to
conclude that the ordinance was intended to permit reconstruction of a
noncomplying structure damaged by a catastrophic occurrence as opposed to
damage caused by termites or dry rot, for example.
 
     Even if we accept appellant's view that the house in issue was a
noncomplying structure governed by { 1420.2(4) of the Shelburne Zoning
Bylaws, its reconstruction, according to the trial court's findings,
conformed with all the zoning bylaws "except the minimum setback of 100 feet
from the 102 foot elevation mark."  This finding was not clearly erroneous.
Bills v. Wardsboro, 150 Vt. 541, 545, 554 A.2d 673, 676 (1988).  The fact
that the replacement structure was somewhat larger than the original is
irrelevant because the only factor rendering the structure noncomplying was
its distance from the shore, not its size.
 
      Affirmed.
 
                                   BY THE COURT:
 
 
                                   Ernest W. Gibson III, Associate Justice
 
 
                                   John A. Dooley, Associate Justice
 
 
[ ]  Publish                       James L. Morse, Associate Justice
 
[ ]  Do Not Publish
                                   Lewis E. Springer, District Judge (Ret.),
                                   Specially Assigned