In re Mutschler
Annotate this Case
In re Mutschler (2004-457); 180 Vt. 501; 904 A.2d 1067
2006 VT 43
[Filed 25-May-2006]
ENTRY ORDER
2006 VT 43
SUPREME COURT DOCKET NO. 2004-457
NOVEMBER TERM, 2005
In re Appeal of Mutschler, Canning } APPEALED FROM:
and Wilkins }
}
} Environmental Court
}
}
} DOCKET NO. 260-11-02 Vtec
Trial Judge: Merideth Wright
In the above-entitled cause, the Clerk will enter:
¶ 1. The Vermont Environmental Court granted applicant a variance
from setback requirements for a proposed commercial building on an existing
small lot. Neighboring landowners appeal, arguing that the court
misapplied 24 V.S.A. § 4468(a)(5) (FN1) by granting a variance that does
not represent the minimum variance that will afford relief and the least
deviation possible from the applicable zoning bylaws and the town plan. We
agree and reverse.
¶ 2. Applicant is a contractor seeking to relocate his contracting
business from Massachusetts to the Town of Burke, Vermont. He currently
maintains a home in Burke and operates his business from his Massachusetts
residence. He stores his tools and equipment in the basement of that
residence, and generally completes all necessary woodworking on the job
site. He now seeks to live full-time in Vermont and construct a "business
location" for his company that consists of office space, a storage area,
and a wood shop. To this end, he purchased a small parcel of land in Burke
at the intersection of Kirby Road and Maple Road.
¶ 3. The roughly triangular parcel is approximately one-third of
an acre in size, and is bounded on the north by Dish Mill Brook, on the
east by neighboring property, and on the southwest by Kirby Road. The
surrounding neighborhood is essentially residential in character, with a
number of home occupations. At the time of the purchase, the lot contained
a nonconforming blacksmith's shop. Applicant originally intended to
renovate this shop for his own use, but found it to be beyond repair. He
then planned to construct a two-story building with a basement on a new
footprint. In this plan, the basement was set aside for storage space, the
office and wood shop were on the first floor, and a three-bedroom rental
unit was proposed for the second floor. Upon advice from his engineer that
the on-site septic capacity was only sixty to ninety gallons per day-far
short of the 420-gallon-per-day capacity the proposed residential unit
would require-applicant modified his plan again and proposed a
similarly-sized two-story building without a basement.
¶ 4. In this new plan, which was ultimately submitted to the
zoning board of adjustment, the office was located on the second floor, and
the storage space took up approximately one third of the first floor. The
rest of the first floor was given over to the wood shop. In the shop,
applicant proposed to install a drill press, a grinder stone, and other
basic woodworking machinery, and he would not rule out the possibility of
installing noisier machines, such as planers, shapers, and molders. The
plans called for sliding doors on both sides of the wood shop to allow for
the handling and processing of over-sized lumber.
¶ 5. Within the Town, certain uses are permitted as a matter of
right, and certain uses require a conditional use permit. Town of Burke,
Zoning Bylaws § 203 [hereinafter Burke Zoning Bylaws]. Applicant agrees
that his proposed wood shop constitutes "light industry" under the bylaws.
(FN2) Light industry is a conditional use requiring a minimum setback of
one hundred feet from the front, side, and rear boundary lines. Id. § 203,
Conditional Use Table, entry no. 22. Because the site of applicant's shop
is only twenty-five feet from the rear and side boundaries of the property,
and thirty-five feet from the front, applicant was required to obtain both
a conditional use permit and a variance from the setback requirement. (FN3)
¶ 6. The Board granted applicant's variance request, and
neighboring landowners appealed to the Environmental Court. At the de novo
hearing, neighbors challenged the inclusion of the wood shop in applicant's
proposal, arguing that the shop was not the minimum variance necessary to
afford relief to applicant and was likely to generate an unreasonable
amount of noise. The court, in applying 24 V.S.A. § 4468(a), found that
most of neighbors' concerns about the proposed shop could be addressed
through the conditional use permitting process. The court also concluded
that the proposal was the minimum necessary to afford relief because the
lot "could not be used for a farm stand as that would have much more
traffic than the proposed use." Accordingly, the court granted the
variance. This appeal followed.
¶ 7. Variances have historically been employed as "an escape hatch
from the literal terms of an ordinance which, if strictly applied, would
deny a property owner all beneficial use of his land and thus amount to
confiscation." Lincourt v. Zoning Bd. of Review, 201 A.2d 482, 485-86
(R.I. 1964). Variances, by their very nature, are individual exceptions to
generally applicable rules of zoning, the purpose of which "is to bring
about the orderly physical development of the community." In re Maurice
Mem'ls, 142 Vt. 532, 535, 458 A.2d 1093, 1095 (1983) (quotations omitted).
The traditional reluctance to grant variances as a remedy to zoning
problems was seminally expressed by Justice Cardozo: "There has been
confided to the board a delicate jurisdiction and one easily abused. Upon
a showing of unnecessary hardship, general rules are suspended for the
benefit of individual owners and special privileges established." People
ex rel. Fordham Manor Reformed Church v. Walsh, 155 N.E. 575, 578 (N.Y.
1927).
¶ 8. The Legislature has chosen to limit the discretion involved
in the granting of variances by establishing five criteria that must be met
before a variance may issue:
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness, or shallowness of
lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property, and that
unnecessary hardship is due to such conditions, and not the
circumstances or conditions generally created by the provisions of
the zoning regulation in the neighborhood or district in which the
property is located;
(2) That because of such physical circumstances or
conditions, there is no possibility that the property can be
developed in strict conformity with the provisions of the zoning
regulation and that the authorization of a variance is therefore
necessary to enable the reasonable use of the property;
(3) That the unnecessary hardship has not been created by the
appellant;
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in which the
property is located, substantially or permanently impair the
appropriate use or development of adjacent property, reduce access
to renewable energy resources, nor be detrimental to the public
welfare; and
(5) That the variance, if authorized, will represent the
minimum variance that will afford relief and will represent the
least deviation possible from the zoning regulation and from the
plan.
24 V.S.A. § 4468(a) (emphasis added). The bylaws' variance provision
includes verbatim the above criteria. Burke Zoning Bylaws § 806
¶ 9. The permit applicant bears the burden of providing evidence
sufficient to support a finding with respect to each of the five criteria.
L.M. Pike & Son, Inc. v. Town of Waterford, 130 Vt. 432, 435, 296 A.2d 262,
265 (1972). The court must then find that each of the five criteria have
been met, regardless of whether the variance is sought from use or area
restrictions. In re Ray Reilly Tire Mart, Inc., 141 Vt. 330, 332, 449 A.2d 910, 911 (1982). Although some jurisdictions apply a lesser standard of
scrutiny to dimensional variances, see, e.g., Matthew v. Smith, 707 S.W.2d 411, 416 (Mo. 1986), we do not distinguish between variances from use
requirements and those from area requirements. See Gadhue v. Marcotte, 141
Vt. 238, 241, 446 A.2d 375, 377 (1982) (stating that, because of § 4468(a),
the "claim that there is a less strict criterion for area or dimensional
variances than for use variances has no merit"). Thus, "[i]f just one
criterion is not satisfied the variance must be denied." In re Ray Reilly
Tire Mart, 141 Vt. at 332, 449 A.2d at 911.
¶ 10. The crux of neighbors' argument is that the dimensional
variances required for "light industry"-sixty-five feet from the front and
seventy-five feet from the side and rear-are not the least deviation
possible from the zoning regulations, and that applicant does not explain
why a lesser variance would not afford relief. Specifically, neighbors
argue that if applicant were to exclude the wood shop from his proposal,
the remaining office and storage space would constitute a "professional
office." The zoning bylaws define a "professional office" as a "[p]lace
where the business of a commercial, industrial, service, or professional
organization is transacted." Burke Zoning Bylaws § 702(67). As a
professional office, applicant's proposal would require a variance of only
fifteen feet from the side and rear, and forty-five feet from the
front-much less than the variances required for light industry. See Burke
Zoning Bylaws § 203 (specifying minimum setbacks for light industry and
professional office uses). Neighbors argue that applicant did not
adequately demonstrate why this option would not afford relief. We agree.
¶ 11. We have consistently held that variances justified in terms
of personal convenience or maximizing the profitable use of property were
not the minimum necessary for relief. See, e.g., In re Maurice Mem'ls, 142
Vt. at 537, 458 A.2d at 1096 (denying a variance from height restrictions
that would have allowed renovation of a nonconforming granite shed's roof
without interrupting the normal course of business); Sorg v. N. Hero
Zoning Bd. of Adjustment, 135 Vt. 423, 426-27, 378 A.2d 98, 101-02 (1977)
(denying a variance for expansion of a hotel dining room where the
applicant asserted only "that the dining facilities would be more
attractive and comfortable if the dining room were enlarged"); DeWitt v.
Town of Brattleboro Zoning Bd. of Adjustment, 128 Vt. 313, 321, 262 A.2d 472, 477 (1970) (denying a variance for expansion of a gasoline station
where "[t]he only hardship referred to is that of continuing the operation
in an outdated facility"). Applicant's explanations for inclusion of the
wood shop fall squarely within this line of cases. At the de novo hearing,
he admitted that his business has operated successfully to date without a
dedicated wood shop, and that he was generally able to complete his
woodworking needs on the job site. When pressed to explain the woodshop,
he responded, "If I had a small shop set up, it would be just more
efficient and easier to produce [woodworking projects]." When asked
whether he had calculated the economic merits of including or excluding the
wood shop, he simply said, "It's much more efficient if I keep everything
together in one central location." While we do not dispute that
applicant's business may run more efficiently with a dedicated woodshop,
"variances were never intended to afford relief from inconvenience or to
prevent against the potential of lost profits." In re Maurice Mem'ls, 142
Vt. at 536-37, 458 A.2d at 1096.
¶ 12. In this case, a professional office would require smaller
setbacks and thus represent less deviation from the zoning bylaws, and
applicant does not articulate an adequate explanation for why this lesser
variance does not afford relief. To the contrary, the record reveals that
the variance obtained by applicant would enhance the efficiency of his
business, but not that his business would be unsustainable without a
variance allowing light industry. We therefore conclude that the record is
insufficient to support the court's conclusion that the variance granted is
the "minimum variance that will afford relief and will represent the least
deviation possible from the zoning regulation and from the plan." 24
V.S.A. § 4468(a)(5).
Reversed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
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Footnotes
FN1. Effective July 1, 2004, 24 V.S.A. § 4468(a) was amended so that the
relevant language of 24 V.S.A. § 4468 now appears, in nearly identical
form, as 24 V.S.A. § 4469. 2003, No. 115 (Adj. Sess.), § 106. We will
refer to § 4468, the statute in effect at the time of the decision
currently on appeal.
FN2. Section 702 defines "light industry" as "[a]ny industrial use having
not more than thirty (30) employees, occupying, not more than 15,000 square
feet of floor and outdoor storage area in the aggregate and having no
excessive noise, odor, glare, smoke, dust or vibration discernable at its
property boundary." Burke Zoning Bylaws § 702(45).
FN3. Section 203 also prescribes a two-acre minimum lot size for light
industry. Though applicant's lot is far smaller than two acres, applicant
was not required to obtain a variance from the area requirement. Section
301 of the bylaws provides an exemption from area requirements for existing
small lots:
Any lot in individual, separate and non-affiliated ownership from
surrounding properties on the effective date of any zoning bylaws
may be developed for the purpose permitted, even though not
conforming to minimum lot width requirements, if such lot is not
less than one eighth acre in area with a minimum width or depth
dimension of forty feet.
Burke Zoning Bylaws § 301 (emphasis added). The basic purpose of the
provision "is to provide that lots of sufficient size whose existence
predates the enactment of zoning but whose size does not quite comply with
the new zoning law will not go to waste unused." Lubinsky v. Fair Haven
Zoning Bd., 148 Vt. 47, 50, 527 A.2d 227, 228 (1986). The parties agree
that applicant's lot qualifies under this provision. Thus, applicant was
not required to obtain a variance from the minimum lot size requirement.
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