Gould Accessory Dwelling Application

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

}
In re Gould Accessory Dwelling Application } Docket No. 33-3-11 Vtec
}
}

Decision and Order on Cross-Motions for Summary Judgment

Appellant-Applicants Donald Gould and Julie Gould (Appellants) appealed from

a decision of the Development Review Board (DRB) of the Town of Monkton denying

their application for a zoning permit for an accessory dwelling unit. Appellants have

entered an appearance representing themselves; the Town is represented by David

Rath, Esq. Interested Person Scott Gustin entered an appearance representing himself

but did not take an active role on the present motions.

Cross-Motions for Summary Judgment

Appellants and the Town have each moved for summary judgment on the legal

issue of whether 24 V.S.A. § 4412(1)(E), adopted in 2004, requires the municipality to

consider an application for an accessory dwelling unit in a separate building from the

principal single-family dwelling, despite § 512 of the 1986 Monkton Zoning

Regulations, which provides in full that: “[t]there shall be only one residential building

on a lot.”

A grant of “[s]ummary judgment is appropriate when, giving the benefit of all

reasonable doubts and inferences to the nonmoving party, there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law.” Gade

v. Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7 (citing Mooney v. Town of Stowe,

2008 VT 19, ¶ 5, 183 Vt. 600 (mem.); V.R.C.P. 56(c)). When considering cross-motions

for summary judgment, the Court gives each party “the benefit of all reasonable doubts
1
and inferences when the opposing party’s motion is being judged.” City of Burlington

v. Fairpoint Communications, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M.

Burlington, Co., 155 Vt. 44 (1990)). The facts stated in this decision are undisputed

unless otherwise noted.

Factual and Procedural Background

The property at issue in the present case is one lot of a three-lot subdivision; the

subdivision was approved in two stages in 2009. The lots are shown on the plan

provided as Town’s Exhibit 5 numbered as Lots 6, 7, and 8.1 Lots 6 and 7 have road

frontage, have areas of 2 acres and 1.3 acres, respectively, and are each approved for

one single-family house. Appellants’ 11.4-acre lot at issue in the present appeal is

marked as Lot 8 and has road frontage between that of Lots 6 and 7. It contains an

existing house and is served by an existing driveway, but is proposed to share a wider

driveway with Lot 6 when the subdivision is built out.

A state Wastewater Disposal and Potable Water Supply permit issued by the

ANR (the 2009 ANR Permit) applies to the three lots. It approved two wells, both

located on Appellants’ lot, one to be shared by Lot 6 and Appellants’ existing house on

Lot 8, and the other to serve Lot 7. The 2009 ANR Permit also approved each of the

three lots for separate on-site wastewater disposal systems, each serving a single three-

bedroom single-family dwelling. The 2009 ANR Permit requires prior ANR review and

approval for any expansion of the project or increase in occupancy.

Appellants’ lot contains a house, a garage with a large parking area, a shed near

the parking area, and, farther from the road frontage, a barn, another shed, and two

1
On that plan, the road is shown at the bottom of the plan and north is towards the top
of the plan. Compare with Town’s Ex. 1, Appellants’ application, which is drawn with
the road at the top of the sketch plan, showing north towards the bottom of the sketch
plan.
2
smaller outbuildings. Material facts have not been provided to the Court as to the total

habitable floor area of the principal single-family house; however, finding 5 of the

Zoning Administrator’s decision on appeal in this matter, which states that the

accessory dwelling unit can have an area of “up to 706.8 square feet,” must have been

calculated by the Zoning Administrator as 30% of the total habitable floor area of the

principal single-family house. 24 V.S.A. § 4412(1)(E).

In the present application Appellants propose to construct a new 644-square-

foot, one-bedroom dwelling unit (consisting of a 10’ x 50’ segment and a 12’ x 12’

segment, as well as an 8’ x 12’ deck not counted as habitable)2 as a separate dwelling

unit, claiming that it is accessory to their principal single-family house. Appellants

propose to locate the accessory dwelling unit so that it is set back 75 feet from the road

and 50 feet from the east side property line shared with Lot 7, putting the northwest

corner of the proposed accessory dwelling unit approximately 160 to 200 feet from the

southeast corner of the principal single-family house. Appellants propose that the

accessory dwelling unit will be served by its own driveway and parking area, located

close to the boundary with Lot 7, and will have its own curb cut onto the adjacent

public road. They propose that the accessory dwelling unit will be served by a septic

system shared with that of the principal single-family dwelling; their application

appears to show that the accessory dwelling unit will be served by the well on Lot 8

that is approved for the use of Lot 7.

The Zoning Administrator denied the permit for two reasons: that the

application lacked the required ANR potable water and wastewater disposal permit3

2 At page 6 of 8 of their document filed May 10, 2011, Appellants themselves state that
the dwelling unit they are applying for “can be only 501.6 square feet.” It is not clear to
the Court whether only the 10’ x 50’ segment of their proposal is proposed as a dwelling
unit. However, this fact is not material to the present decision, in light of its outcome.
3 As of the date of the application, Appellants had not submitted to the Zoning
Administrator any ANR approval of the changes to the wastewater disposal and
3
and that the proposed accessory dwelling unit was not attached to or located within the

existing single-family dwelling, that is, that it conflicted with the requirement of § 512

of the 1986 Monkton Zoning Regulations that only a single residential building may be

located on a lot. Appellants appealed the decision to the DRB, which effectively denied

the application as proposed by Appellants, ruling that it “approve[d] the appeal of the

zoning administrator’s decision with the condition that the accessory dwelling needs to

be physically attached to the primary residence.”

Statutory and Regulatory Provisions

The Monkton Zoning Regulations were most recently amended in 1986. At that

time, 24 V.S.A. § 4406 of the state zoning enabling statute required municipal zoning

regulations to include certain listed provisions for existing small lots, required frontage

on or access to public roads or waters, protection of home occupations, and equal

treatment of housing.4 At that time, the subsection on equal treatment of housing only

contained three provisions, dealing with prefabricated housing such as mobile homes,

dealing with housing to meet the needs of the population, and dealing with mobile

home parks.

To comply with then-24 V.S.A. § 4406, the 1986 Monkton Zoning Regulations

provide, in § 500A through § 500D, language from the state statute addressing existing

small lots, required frontage on or access to public roads or waters, protection of home

occupations, and equal treatment of housing. Like the statute as it existed at that time,

the 1986 Monkton Zoning Regulations do not contain any provision addressing

accessory dwelling units.

potable water supply systems for the three-lot subdivision resulting from the proposed
addition of the one-bedroom accessory dwelling unit.
4 The required statutory provisions found in former §4406 were amended and
recodified in 2004 at 24 V.S.A. § 4412, the statutory section at issue in the present
appeal. See 2003, No. 115 (Adj. Sess.), § 119(c).
4
 Section 512 of the 1986 Monkton Zoning Regulations, entitled “Dwelling on

Lots,” provides in full that “[t]here shall be only one residential building on a lot.”

Section 320(5) of the 1986 Monkton Zoning Regulations prohibits the Zoning

Administrator from issuing a zoning permit unless the application includes any other

required governmental written approval, such as an amended ANR wastewater

disposal and potable water supply permit. The Monkton Zoning Regulations have not

been revised or amended since 1986.

In 1992, within the subsection of former 24 V.S.A. § 4406(4) addressing equal

treatment of housing, § 4406(4)(D) was added to the state statutes to protect

landowners’ ability to create certain types of accessory dwelling units. See 1991, No.

130 (Adj. Sess.), § 3. It provided that:

no zoning regulation shall have the effect of excluding for review as a
conditional use one dwelling unit constructed within or attached to a
primary single family residence located in a district in which single family
residences are a permitted or conditional use. (Emphasis added.)
As enacted in 1992, § 4406(4)(D) also then required such accessory dwelling units to

satisfy three additional requirements: that the primary residence be owner-occupied;

that the floor space of the accessory unit not exceed 400 square feet or 30% of the floor

space of the existing living area of the primary residence, whichever was greater; and

that occupancy of the accessory unit be restricted to not more than two persons, one of

whom had to either be related to the owner, or be at least 55 years of age, or be

disabled.5

5 A related provision already in the municipal planning subchapter required municipal
plans to include a housing element including a recommended program for addressing
the housing needs of low and moderate income persons; the 1992 amendment to that
section allowed the program to include provisions for “conditionally permitted
accessory apartments within or attached to single family residences which provide
affordable housing in close proximity to cost-effective care and supervision for relatives
5
 Effective on July 1, 2004, the statutory provisions governing accessory dwelling

units were substantially amended as part of major legislative changes to the Vermont

Planning and Development statute, chapter 117 of Title 24. 2003, No. 115 (Adj. Sess.).

Many of the statutory sections were also recodified. The savings clause applicable to

the entire statutory revision provided that, as of September 1, 2005, certain listed

sections, including § 4412, “shall control over any inconsistent municipal regulations.”

24 V.S.A. § 4481.6

The former “Required regulations” section, § 4406, was recodified at 24 V.S.A.

§ 4412, entitled “Required provisions and prohibited effects.” It provides specifically

that “[n]otwithstanding any existing bylaw, the following land development provisions

shall apply in every municipality.” (Emphasis added.) The title of the subsection

containing the provisions on accessory dwelling units, § 4412(1), was revised to clarify

the subsection’s focus on affordable housing, by retitling it “Equal treatment of housing

and required provisions for affordable housing.” 24 V.S.A. § 4412(1).

Within that section, the subsection regulating accessory dwelling units,

§ 4412(1)(E), continues to require that the primary single-family dwelling be owner-

occupied, but was amended to require that the accessory dwelling unit be located

within “or appurtenant to” (rather than “or attached to”) the primary single-family

dwelling.7 Section 4412(1)(E) defines an accessory dwelling unit as “an efficiency or

or disabled or elderly persons.” 24 V.S.A. § 4382(a)(10) (as amended by 1991, No. 130
(Adj. Sess.), § 2).
6 Moreover, § 4481 gave municipalities seven years—to September 1, 2011—to amend

their zoning ordinances to conform with the provisions of the revised statute.
7 The related provision on municipal plans was also revised to eliminate any language

suggesting that an accessory dwelling unit must be “within or attached to” the primary
single-family dwelling. Rather, it was amended to state that the affordable housing
plan element for a municipality “should account for permitted accessory dwelling units,
as defined in [24 V.S.A. § 4412(1)(E)], which provide affordable housing. 24 V.S.A.
§ 4382(a)(10).
6
one-bedroom apartment” that is “clearly subordinate to” the primary single-family

dwelling. It no longer requires that the occupants be related to the owners, disabled, or

over a certain age. Rather, it requires that the property as a whole has sufficient

wastewater capacity, that the accessory dwelling unit does not exceed 30% of the

primary single-family dwelling’s total habitable floor area, and that the property meets

the “[a]pplicable setback, coverage, and parking requirements” in the municipal

bylaws. § 4412(1)(E)(i–iii).

Importantly, § 4412(1)(F) was also added to the statute, stating that nothing in

the statute “shall be construed to prohibit” certain types of municipal bylaw provisions.

Section 4412(1)(F)(i) explicitly states that municipalities are allowed to adopt bylaws

that are less restrictive of accessory dwelling units than what is specified in the state

statute. Section 4412(1)(F)(ii)(I) specifically allows municipalities to require conditional

use review for new accessory structures that are involved in the creation of accessory

dwelling units.

Cross-Motions for Summary Judgment

The issue before the Court is whether the statutory change regarding accessory

dwelling units—from “within or attached to” the primary dwelling to “within or

appurtenant to” the primary dwelling—now precludes the Town from applying § 512

of its 1986 Zoning Regulations to require accessory dwelling units to be attached to the

primary dwelling.

When courts interpret a statute, their principal goal is to ascertain the intent of

the legislature. In re Williston Inn Group, 2008 VT 47, ¶ 14, 183 Vt. 621 (mem.); see also

In re Village Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 9, 188 Vt. 113 (citing In re

Ambassador Ins. Co., 2008 VT 105, ¶ 18, 184 Vt. 408). To give effect to the legislature’s

intent, the Court first looks to the plain, ordinary meaning of the statutory language, In

re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 6, 187 Vt. 637 (citations omitted); and see In
7
re Eustance Act 250 Jurisdictional Opinion, 2009 VT 16, ¶ 14, 185 Vt. 447 (citing In re

Ambassador Ins. Co., 2008 VT 105, ¶ 18, 184 Vt. 408).

Where the plain meaning of the words of the statute provides insufficient

guidance to ascertain the legislative intent, the Court must “look beyond the language

of a particular section standing alone to the whole statute, the subject matter, its effects

and consequences, and the reason and spirit of the law.” State v. Thompson, 174 Vt.

172, 175 (2002) (citing In re Wal*Mart Stores, Inc., 167 Vt. 75, 84 (1997)); see also Appeal

of Carroll, 2007 VT 19, ¶ 9, 181 Vt. 383; Tarrant v. Dep’t of Taxes, 169 Vt. 189, 197 (1999).

In this regard, the Court examines the language and legislative history of the statute

and any policy it was designed to implement. Dept. of Corrs. v. Human Rights

Comm’n, 2006 VT 134, ¶ 7, 181 Vt. 225 (citing Human Rights Comm’n v. Benevolent &

Protective Order of Elks, 2003 VT 104, ¶ 13, 176 Vt. 125); cf. Glebe Mountain Wind

Energy, LLC, No. 234-11-05 Vtec, slip op. at 9 (Vt. Envtl. Ct. Aug. 3, 2006) (Durkin, J.).

Most importantly for the purposes of the present case, courts presume “that the

Legislature intended to change the meaning of a statute when it amends it,” or to clarify

the existing law where the circumstances clearly indicate that clarification was

intended. State v. Thompson, 174 Vt. at 178. That is, when the legislature amends a

statute, it is presumed to “add[] and remove[] statutory language advisedly.” Tarrant,

169 Vt. at 196–97 (citing Payea v. Howard Bank, 164 Vt. 106, 107 (1995)). Courts

presume that the legislature does not enact meaningless legislation. Loiselle v.

Barsalow, 2006 VT 61, ¶ 16, 180 Vt. 531 (mem.) (citing Chittenden v. Waterbury Ctr.

Cmty. Church, Inc., 168 Vt. 478, 491 (1998)).

Especially where an act adopted by the legislature “reflect[s] a comprehensive re-

examination and revision” of the law on a particular subject matter, as did the

comprehensive revision of the zoning statute in 2004, the legislature’s alteration of a

particular provision within that comprehensive rewrite of the statute “must be taken to

have been deliberate.” State Highway Bd. v. Loomis, 122 Vt. 125, 131 (1960) (citing
8
Conn v. Town if Brattleboro, 120 Vt. 315, 322 (1958); In re Cartmell’s Estate, 120 Vt. 228,

232 (1958)).

The word “appurtenant” is generally used in property law to describe structures

or property rights associated with, accompanying, or belonging to a parcel of property

or building. It has a broader meaning than the word “attached.” When used in

property law, the term “appurtenant” describes an easement or other property right

burdening one parcel of property, which runs with, or accompanies, another parcel of

property to which it is “appurtenant.” See, e.g. Rowe v. Lavanway, 2006 VT 47, ¶13,

180 Vt. 505.

Although it is more commonly used in the context of easements, the term

“appurtenant” has also been used for many years in Vermont cases with reference to

buildings or structures that are related to or associated with, but not necessarily

attached to, a principal feature, building, or structure. See, e.g. Gardner v Jeffries, 2005

VT 56, ¶¶ 2, 11, 178 Vt. 594 (interpreting a restrictive covenant giving the right to

construct a swimming pool, tennis court, and “the usual fences and structures

appurtenant thereto”); State v. Bishop, 127 Vt. 11 (1968) (applying the second degree

arson statute, 13 V.S.A. § 503, then defined as other than the burning of a “dwelling

house or the structures appurtenant thereto,” which appurtenant structures were

further listed in the first degree arson statute, § 502, to include barns, stables, and other

outbuildings); Shaw v. Chamberlin, 45 Vt. 512, 513 (1873) (describing the construction of

a “new dwelling-house and other buildings appurtenant” to it); State v. Twenty-Five

Packages of Liquor, 38 Vt. 387, 391 (1866) (referring to hotel “and the adjacent

outbuildings appurtenant to it” as “together constituting” the hotel premises, for the

purposes of a search warrant).8

8 Similarly, courts in other states have also interpreted the term “appurtenant” to refer
to structures that are related to but not necessarily attached to the primary building on a
lot. See, e.g., Kramer v. Dalton Co., LLC, 235 Or. App. 494, 501 (Or. Ct. App. 2010)
9
 Even if the meaning of the term “appurtenant” were not sufficiently plain to

distinguish it from the term “attached,” it is apparent from the context of the statutory

amendment that the legislature intended, when replacing the phrase “within or

attached” with the phrase “within or appurtenant,” to broaden the statutory protection

of 24 V.S.A. § 4412(1)(E) to cover detached, as well as attached, accessory dwelling

units.

That legislative intent is reflected in the legislative policy of the statute to

increase Vermont’s stock of affordable housing at least in part by reducing the statutory

restrictions on accessory dwelling units. 24 V.S.A. § 4382(a)(10); and see the addition of

“required provisions for affordable housing” to the title of § 4412(1). It is also reflected

in the specific provision of § 4412(1)(F)(i) that municipalities are allowed to adopt

bylaws that are less restrictive of accessory dwelling units than what is specified in the

state statute, implying that municipalities may not adopt or retain provisions in their

zoning bylaws that are more restrictive of accessory dwelling units than is the state

statute. This legislative intent is reinforced by the clear statement within § 4412 itself

that it contains provisions that apply in every municipality “[n]otwithstanding any

existing bylaw,” and the equally clear statement in § 4481 that the provisions of § 4412

“shall control over any inconsistent municipal regulations, ordinances or bylaws.”

Moreover, 24 V.S.A. § 4412(1)(F)(ii) specifically allows municipalities to require

conditional use review for new accessory structures that are involved in the creation of

accessory dwelling units. This language would be surplusage if all accessory dwelling

units in any event had to be part of—that is, within or attached to—the primary single-

(referring to structures such as a greenhouse, swimming pool, or storage structure as
“appurtenant” to a single-family dwelling); Viking Properties, Inc. v. Holm, 155 Wash.
2d 112, ¶¶ 3, 24 (Wash. 2005) (stating that “’appurtenant’ has a clear and long
established meaning” when interpreting a covenant that allowed, as appurtenant to a
dwelling house, “a private garage, garden house, . . . or other private appurtenant
outbuildings or structures”).
10
family dwelling. Courts are instructed to presume that the legislature chooses

legislative language advisedly, so as not to create surplusage. Loiselle, 2006 VT 61, ¶ 16,

(mem.) (citing State v. Carroll, 2007 VT 57, ¶ 7, 175 Vt. 571 (mem.)).

Accordingly, based on the foregoing, § 512 of the Monkton Zoning Regulations

cannot be read to prohibit an accessory dwelling unit from being created in a structure

separate from the primary single-family dwelling, because that reading conflicts with

the state statute, 24 V.S.A. § 4412(1)(E), which applies “notwithstanding the existing”

Zoning Regulations and “controls over any inconsistent” Zoning Regulations. 24

V.S.A. § 4481.

Because the Zoning Administrator, and the DRB on appeal, did not address the

merits of the application for an accessory dwelling unit in a separate structure, their

decisions must be VACATED and the application must be remanded for the Zoning

Administrator, or the DRB on appeal, to decide in the first instance if the application

meets the requirements of the Monkton Zoning Regulations and the state statute.

It will be up to the Zoning Administrator in the first instance, or the DRB on

appeal, to determine whether the proposed accessory dwelling unit is or is not

accessory, that is, clearly subordinate, to the primary single-family dwelling. Similarly,

it will be up to the Zoning Administrator in the first instance, or the DRB on appeal, to

determine whether the proposed accessory dwelling unit is or is not appurtenant or

related to the primary single-family dwelling. If Appellants have obtained the requisite

ANR approval of the water supply and wastewater disposal systems for the proposed

accessory unit, they are free to provide evidence of such approval to the Zoning

Administrator for consideration with their application, as required by § 320(5) of the

1986 Monkton Zoning Regulations.

11
 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellants’ Motion for Summary Judgment is GRANTED and the Town’s Motion

for Summary Judgment is DENIED: the 1986 Monkton Zoning Regulations conflict with

24 V.S.A. § 4412(1)(E) to the extent that they prohibit an accessory dwelling unit from

being proposed to be constructed in a detached accessory building. Accordingly, the

decisions of the DRB and of the Zoning Administrator are hereby VACATED and the

application is hereby REMANDED to the Zoning Administrator, concluding this

appeal.

Any appeal from a later decision of the DRB would require a new timely notice

of appeal and would receive a new docket number at that time. If any such future

appeal is brought by Appellants, they may request the Court at that time to waive the

filing fee, as the present appeal was resolved in favor of Appellants.

Done at Berlin, Vermont, this 23rd day of August, 2011.

_________________________________________________
Merideth Wright
Environmental Judge

12