In Re Barry (Clyde's Place LLC) Nov
16 A.3d 613
Vt.2011Background
- Lake Champlain shore property in Orwell, VT; original house nonconforming with 100' lakefront setback under 1995 bylaws
- In 2006 Clyde's Place LLC proposed replacement structure; interim zoning official discussed options and allowed footprint-based placement
- Zoning permit issued June 5, 2006 after sketch plan and application; permit described building to be built “over” the existing footprint but terms undefined
- Final design extended upper floors and cantilevered sections; construction commenced late 2006 and completed by spring 2007
- April 23, 2007 NOV alleged violation of the lakefront setback (100'); DRB denied appeal; Environmental Court upheld NOV and denied new permit/variance
- Environmental Court found permit ambiguous; held ambiguities must be construed in landowner’s favor enabling preexisting nonconforming status
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NOV should be upheld given ambiguity in the permit terms | Clyde's Place contends the as-built conforms to the ambiguous permit | Town argues structure exceeded permit scope and violated bylaws | No; ambiguity requires construing in landowner’s favor, reversing NOV |
| Whether the as-built structure is a lawful nonconforming use under the ambiguous permit | As-built remains within the ambiguous permit’s scope | Permit did not clearly authorize the as-built design | Yes; structure remains preexisting nonconforming under ambiguous permit |
| Whether to address additional procedural issues (variance, estoppel) after reversal on ambiguity | Requests approval as modification or variance; estoppel defenses | DRB/ bylaws issues unresolved; otherwise moot if ambiguity governs | Not reached; remanded for judgment in Clyde's Place LLC based on ambiguity ruling |
Key Cases Cited
- Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139 (1989) (final zoning permit cannot be collaterally attacked; argues bounds of permit)
- Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288 (1981) (use contemplated by permit must stand; bylaws/enforcement separate)
- In re Kostenblatt, 161 Vt. 292 (1994) (upholding NOV for bylaws violations despite permit constraints; distinguishable facts)