By Lisa Loomis
With a detailed explanation that relies heavily on process and perceived process, the Waitsfield Development Review Board denied an appeal of a zoning permit by Old County Road neighbors concerned that the house was not built according to its original permit.
The June 21 decision of the board was a unanimous decision. At issue for the appellants was the fact that a house built by Susan Lee did not conform to the original zoning permit she received because of its height, setbacks and screening.
Appellants Susan and Bill Shafer and Michael and Donna Smith argued that the house, as built, did not meet the conditions of the permit Lee received and did not conform to the conditions of the subdivision permit that created the lot where the house was built. They also raised the procedural question of whether town zoning administrator Susan Senning has the authority to amend Lee’s building permit twice after what was built did not match the first permit.
The DRB in its conclusions found that while the appellants may have thought that a September 2011 DRB approval of a screening plan for the subdivision was also tantamount to the approval of a zoning permit – it was not and, therefore, the zoning administrator did not lack the authority to amend Lee’s building permit once that separate document had been issued.
The DRB also noted that there was confusion during Lee’s first request for a zoning permit in August 2011 over which sides of the property represented the “front” and the “sides” in terms of calculating setbacks.
The board found that Lee’s original application for a building permit, number 3380, should have used the subdivision application number rather than the zoning permit application number.
“This may have caused the appellants to believe that the DBR had approved the zoning permit, which it did not. The hearing on August 23, 2011, is most accurately defined as a final approval of a required subdivision condition. It was not a conditional use review. Use of the zoning permit application number did not change the nature or scope of the DRB’s action,” the board wrote.
While the appellants argued that the DRB’s August 2011 hearing and the subsequent September 2011 hearing – and the use of the permit number 3380 versus the subdivision permit number – meant that the height and building setbacks had been approved by the DRB and thus could not be amended by Senning, the DRB ruled against them.
“These discrepancies did not result in any substantive error affecting the process. The DRB was not confused as to what they were asked to approve – i.e., only the screening plan, which was condition #2 from the original subdivision permit. The details of the screening plan were left to the applicant and the Smiths to agree on, which they did,” the ruling points out.
“While the appellants may have been under the impression that the screening plan included restrictions on the building height and location, no such restrictions or proposed conditions were included on the plans and associated agreement between the Smiths and Ms. Lee. Therefore, the DRB’s approval of the screening plan was not specifically tied to the building design and location. The approval presumed that the house would be in compliance with the dimensional and use standards in the relevant zoning district as defined in the zoning bylaws and application conditions of the subdivision approval (e.g., located within the building envelope. Approval was independent of any subsequently issued zoning permit and did not require a re-review by the DRB as corrective zoning permits were issued,” the ruling reads.
Finally, DRB members asserted that the zoning administrator not only had the authority to amend Lee’s building permit after it has been issued, but that she was not required to and lacked the authority to bring the matter back to the board for review.
The appellants can appeal the decision to Vermont Environmental Court should they choose to do so.
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