STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Rouleau Property appeals } Docket Nos. 231‐12‐04 Vtec; 28‐2‐05 Vtec;
} 29‐2‐05 Vtec; 192‐9‐05 Vtec; and 193‐9‐05 Vtec
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Decision and Order on Motions for Partial Summary Judgment
in Docket Nos. 29‐2‐05 Vtec and 192‐9‐05 Vtec
The above‐captioned appeals were taken from several decisions of the Zoning Board
of Adjustment (ZBA) of the Town of Cabot. Landowner Marlynn Rouleau is represented
by Lauren S. Kolitch, Esq.; neighbors Dale Wells, Judith Wells, Charles Aimi, Alice Aimi,
and Joanne Davis are represented by Edward R. Zuccaro, Esq. and Robert R. Bent, Esq.;
and the Town of Cabot is represented by Paul S. Gillies, Esq. In Docket No. 231‐12‐04 Vtec,
Applicant Rouleau appealed the ZBA’s reversal of the Zoning Administrator’s grant of a
zoning permit to move an existing non‐conforming camp building farther from the lake.
In Docket No. 28‐2‐05 Vtec, Ms. Rouleau appealed the denial of a variance to move the
camp building. In Docket No. 29‐2‐05 Vtec, Ms. Rouleau appealed the denial of a zoning
permit to construct a new single‐family dwelling on the same lot with the existing camp
building. In Docket No. 192‐9‐05 Vtec, the neighbors appealed the approval the change of
use of the existing non‐conforming camp building to an ‘accessory structure,’ while Ms.
Rouleau appealed the condition that exterior decks be removed from the former camp
building. In Docket No. 193‐9‐05 Vtec, the neighbors appealed the grant of a zoning permit
to construct a new single‐family dwelling and garage on the same lot as the converted
camp building.
The Town moved for partial summary judgment on issues arising only in Docket
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Nos. 29‐2‐05 Vtec and 192‐9‐05 Vtec. The following facts are undisputed unless otherwise
noted. In Docket No. 192‐9‐05 Vtec, Applicant seeks approval to convert the use of an
existing camp building, formerly used as a seasonal dwelling, to an accessory building, to
be accessory to a new year‐round dwelling for which approval is sought in Docket No. 29‐
2‐05 Vtec. The existing camp building is located approximately ten feet from the shoreline
of Joe’s Pond, on a .89‐acre lot with a lot frontage of 132.78 feet. Section 4.4 of the Zoning
Regulations requires a 75‐foot setback from the pond, requires a minimum lot size of one
acre for residential uses, and requires a minimum lot frontage of 150 feet. The existing
camp building is a 1½‐story building with three bedrooms, one full bathroom and one half
bathroom, a kitchen, a living room, and two decks. The approval of the conversion of the
existing camp building to an accessory building (granted and appealed in Docket No. 192‐
9‐05 Vtec) was conditioned on the removal of all the toilets and sinks and their
disconnection from the existing sewage disposal system, as well as the removal of the
kitchen range and the decks. Material facts are in dispute as to some aspects of the existing
sewage disposal system, including its capacity.
The existing camp building is non‐conforming with the shoreline setback. The
existing lot is also non‐conforming with the lot size and lot frontage requirements for
residential uses. However, none of the parties has briefed any issues on summary
judgment relating to these nonconformities, or, if §2.10 of the Zoning Regulations is
applicable, whether any of the pending cases must be remanded or whether the Town
wishes to request remand under V.R.E.C.P. 5(i). We will discuss those questions with the
parties in the telephone conference scheduled in the final paragraph below.
Under §1.8 of the Zoning Regulations, an “accessory” building is defined as a
building located on the same lot as the principal building and “customarily incidental and
subordinate to the principal . . . building.” Nothing in the Zoning Regulations prohibits
approval of the conversion of an existing building that was formerly the principal building
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on a lot to allow it to become accessory to a newly‐approved principal building. However,
in the present cases material facts are hotly disputed as to whether the proposed new
principal building itself qualifies for approval, as well as to what extent the existing
building is proposed to be incidental or subordinate to that proposed new principal
building, and to what extent that proposed incidental use may be customary.
The proposal does not qualify for consideration under 24 V.S.A. §4412(1)(E), as it
does not meet the setback requirement of 24 V.S.A. §4412(1)(E)(iii) and does not meet the
requirement of 24 V.S.A. §4412(1)(E) that it be an efficiency or one‐bedroom apartment.
Further, the approval appealed in Docket No. 192‐9‐05 Vtec required the kitchen and
bathroom facilities to be removed, which would disqualify the existing building from
consideration under 24 V.S.A. §4412(1)(E), as that section requires that it have facilities for
independent living. In any event, material facts are in dispute as to whether the property
as a whole has sufficient wastewater capacity for the proposed new dwelling and for the
existing building if it were to be used as an accessory dwelling. 24 V.S.A. §4412(1)(E)(i).
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED in
Docket Nos. 29‐2‐05 Vtec and 192‐9‐05 that the Town’s Motion for Summary Judgment is
GRANTED in part, in that nothing in the Zoning Regulations prohibits the possibility of
converting an existing building to an accessory building, to be accessory to a newly‐
approved principal building, but it is otherwise DENIED, in that in the present appeals, as
discussed above, material facts are in dispute. Summary Judgment is GRANTED to the
Neighbors that the proposal fails to qualify for consideration as a permitted accessory
dwelling unit under 24 V.S.A. §4412(1)(E).
A conference is hereby scheduled (see enclosed notice) in all five related cases, to
discuss whether all discovery has occurred; to discuss the status of the related superior
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court litigation; to discuss whether any party is making an argument in any case under
§2.10 of the Zoning Regulations; and to discuss the timing of the hearing on the merits now
scheduled for March 16 and March 17, 2006. If any party will be requesting any change to
that schedule, please inform the other parties well in advance of the conference, so that all
parties can be prepared at the conference with the unavailable dates of all participants
(including expert witnesses) between March 8 and June 9, 2006.
Done at Berlin, Vermont, this 30th day of January, 2006.
_________________________________________________
Merideth Wright
Environmental Judge
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