Kashner v. Greensboro Zoning Board of Adjustment

Kashner v. Greensboro Zoning Board of Adjustment (98-566); 172 Vt. 544;
772 A.2d 133

[Filed 19-Jul-2000]

[Motion for Reargument Denied 19-Mar-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-566

                               MAY TERM, 2000


Carole Darling Kashner	                }	 APPEALED FROM:
                                        }
     v.	                                }	 Orleans Superior Court
                                        }	
Greensboro Zoning Board of Adjustment, 	}
Helen Lyle, Interested Person,
Mary F., Zoe F., Elizabeth F. Carter,	}	 DOCKET NO. 279-11-91 Oscv
Sarah Dulany Barron, Interested Persons
                                                 Trial Judges: Brian L. Burgess, 
                                                 Shireen A. Fisher, Walter M. 
                                                 Morris   


             In the above-entitled cause, the Clerk will enter:


       Appellant neighbors, the Carters, appeal from an Orleans Superior
  Court decision granting appellee,  Carole Kashner, a variance to build a
  summer home.  Appellants argue that the court erred in  reversing the
  Greensboro Zoning Board of Adjustment's denial of Kashner's variance
  request.  We  reverse. 

       The superior court found the following facts.  Kashner owns three lots
  of land in Greensboro, on or  near the shore of Caspian Lake.  These lots
  are numbered 28 and 29, and there is an unnumbered lot  situated adjacent
  to Lot 28 and between Lots 28 and 29.  Lot 29 is the parcel at issue in the
  instant  case.  It is bordered on two sides by neighbors' property,
  including the Carters', by the lake on  another side, and on a final side
  by an easement providing unencumbered access for all neighbors  known as
  the "camp road."  The camp road runs between Lot 29 and the unnumbered lot,
  and  physically separates the two lots.

       In October 1991, Kashner applied for a building permit to construct a
  seasonal two-story single-family dwelling on Lot 29.  She filed a variance
  application to build "50 feet from the lake shore (or  as close to the lake
  allowable)."  Construction of this building required a variance from the
  150-foot  lakefront setback requirement codified in the Greensboro Zoning
  Ordinance, § 405.2.  At a hearing  later that month, Kashner's attorney
  argued that the configuration of Lot 29 predated the 1972  effective date
  of Greensboro's zoning regulations.  The Board, noting that Kashner's
  counsel had not  done any title work and that it could find no record
  supporting Kashner's argument, rejected the  argument and concluded that
  the lot did not come under the zoning ordinance's grandfather clause.   The
  Board found that there was no basis for a variance allowing Kashner to
  build on Lot 29:

 

    Mrs. Kashner owns enough property behind this particular lot that
    adjoins.  The  contiguous lots total 1.26 acres.  With this amount
    of property all setbacks could be  met and septic systems could be
    constructed to State regulations.  

  The Board then examined the criteria for zoning variances as set forth in
  24 V.S.A. § 4468(a).  It  concluded that no unique physical characteristics
  peculiar to the particular property prevented the lot  from being developed
  in strict conformance with the zoning regulations.  Accordingly, the Board 
  denied the variance application.

       After a long delay, Kashner appealed the Board's denial to the
  superior court, (FN1) and a trial was  held in August 1997.  At trial,
  Kashner testified on her own behalf, and the Carters put on three 
  witnesses: a surveyor, a soil scientist, and Elizabeth Carter.  The court
  also viewed the lots, though  the Carters claim it did not record any
  observations based on this viewing and provided the parties no  opportunity
  to object to or comment upon any proposed findings based on that viewing.  

       In November 1998, the court issued its decision.  Although the court
  did not grant Kashner the  variance for which she had originally applied,
  it concluded that she was entitled to relief and  fashioned a judgment
  that, it said, "represent[ed] the minimum variance that will afford relief
  while  representing the least deviation possible from the applicable zoning
  regulation and municipal plan."   Specifically, it significantly reduced
  the size of the proposed dwelling and moved it to a distance of  at least
  one-hundred feet from the shoreline.  The court did not remand the
  conditioned variance to  the Board.

       The Carters appeal to this Court, arguing that the superior court
  erred: (1) in granting the variance in  the absence of supporting evidence;
  (2) in granting a variance different from the one Kashner  originally
  submitted without remanding the matter for a public hearing; and (3) in
  holding that the lot  at issue was not in affiliated ownership with nearby
  lots upon which the project could be  constructed. (FN2) 

 

       We do not address appellants' arguments because we conclude that the
  trial court erred in its  formulation of the controlling issue in this
  case.  According to the court, the "central question"  presented was:  

    [W]hether Ms. Kashner's Lot #29 is an existing small lot, in
    individual and separate  and non-affiliated ownership, pre-dating
    the enactment of the applicable zoning  ordinances, and thus
    entitled to variance to permit construction of a single family 
    dwelling even though such would not conform to dimensional
    requirements of the  ordinance.

       The court's analysis apparently assumes that the fact that a part of
  the property owned by Kashner is  an existing small lot is the
  determinative factor in deciding whether a variance is in conformance  with
  the five statutory criteria of 24 V.S.A. § 4468(a).  But "[t]he fact that a
  part of the property is an  existing small lot or that another part is
  purchased later cannot be determinative of a variance  request.  Indeed,
  these factors are not even mentioned in the variance statute."  Blow v.
  Town of  Berlin Zoning Administrator, 151 Vt. 333, 335, 560 A.2d 378, 379
  (1989).  In assessing the five  criteria, the court must look at all of the
  applicant's property, not solely that part included in the  variance
  request.  See id.; see also In re McDonald's Corp., 151 Vt. 346, 350, 560 A.2d 362, 364  (1989).

       In the instant case, the trial court failed to look at all of the
  applicant's property, instead considering  only Kashner's variance request
  as it related to Lot 29.  See id.  This was erroneous because, as the 
  Board found, Kashner owns Lot 28 and the unnumbered lot, which could be
  built upon in  conformance with the zoning regulations.  Thus, Kashner
  cannot claim that there is no possibility  that the property can be
  developed in strict conformity with the zoning ordinance; indeed, the 
  hardship here was created by Kashner's decision to build on Lot 29. 

       Kashner argues that applications for a permit to develop a § 4406(1)
  existing small lot do not have to  satisfy the five criteria of § 4468(a). 
  As we said in Blow, "this . . . proposition is erroneous." Id.  In  the
  instant case, as in Blow, nothing in § 4406(1) entitles Kashner to the
  requested zoning variance  simply because it is an existing small lot, if,
  in looking at all of applicant's property, it can be shown  that the
  property could be developed without a variance.  See id. at 335-336, 560 A.2d  at 379;  Lubinsky v. Fair Haven Zoning Board, 148 Vt. 47, 51, 527 A.2d 227, 229 (1986) (describing  § 4406(1) as "a sort of limited grandfather
  clause allowing for limited development on previously  laid-out lands that
  is not seen as unduly disruptive of the desired ends of zoning").  

       An essential component of the statutory criteria that must be met for
  a variance is unnecessary  hardship.  See Blow, 151 Vt. at 335, 560 A.2d  at
  379; L.M. Pike & Son, Inc. v. Town of Waterford,  130 Vt. 432, 436, 296 A.2d 262, 265 (1972).  That hardship cannot be demonstrated here where the 
  court failed to consider all of the applicant's property in assessing her
  application for a variance.  

 


       Reversed. 



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  Since this case began before the Legislature consolidated jurisdiction
  over all zoning cases to  the Environmental Court in 1995, the superior
  court had jurisdiction to hear Kashner's appeal.  See 4  V.S.A. § 1001.

FN2.  Another neighbor, Mrs. John Gunther, filed an amicus curiae brief,
  essentially agreeing with the  Carters and adding that the conditioned
  variance would have more of an impact on her land than the  variance for
  which Kashner applied, and that due process required a remand to the Board
  because  Gunther was misled into inaction by the unanticipated change
  granted by the court.  Our decision  renders it unnecessary to address the
  merits of the amicus's argument.