Property II, Pages 878–883

In Re Appeal of Miserocchi

Supreme Court of Vermont, 2000


Applicants acquired a parcel with a machinery barn in a zone that allows both residential and agricultural uses. The barn was under twenty feet from the road, while buildings are required to be set back forty feet. Applicants claimed that the zoning administrator told them they did not need a permit to alter the interior of the building into a residence but that altering the exterior would.

Applicants installed water and sewage systems and put a mobile home partially inside the barn. A subsequent zoning administrator told them that the residential use was a violation of the zoning regulations, and applicants applied for change-of-use approval. The zoning board addressed the request as if it were a request for conditional-use approval. It granted such a permit for ten years provided applicants did not change the shape of the building.

Eight years later, applicants applied to remove the ten-year limitation and to add skylights. The board denied both requests.

Procedural History:

Environmental court denied the request for a variance on summary judgment and denied the permanent change-of-use request at trial because it would increase the intensity of the use of noncomplying structure. The court ruled that no variance was needed for the portion of the building outside the forty foot setback, but that the portion within would have to stop being used as a residence.


Was the denial of the change-of-use permit and variance proper?


The law applied by the environmental court pertains to permitting conditional uses. As the district already allows one-family dwellings, the barn's use is already permitted and not merely conditional.

The barn is a noncomplying structure because it is not set back far enough, and a statute makes this also a nonconforming use. However, the town's statute requiring board approval to change between non-conforming uses does not give criteria to base the decision on. Absent this, a decision is arbitrary and capricious and denies As the process of law. This explains why the board and environmental court turned to conditional-use approval to base their decisions on, but this is not an allowed basis.

The town's statute prohibits any changes to structures with nonconforming uses, except for major changes to the building's use as approved. As only allowing major changes is irrational, the statute should be construed narrowly to only address a change to the nonconforming use. As applicants do not propose to change how far the building is set back, this does not apply and applicants may continue without board approval. Both agricultural and residential uses are permitted.

Merely increasing the intensity of a nonconforming use is not prohibited by the zoning regulation and is generally not prohibited.

Nothing directs only allowing part of a building to be used as a residence and this is an impractical result. Use and nonuse restrictions are usually distinguished. As this statute does not, the nonconformity should be permitted indefinitely as long as the building is not expanded towards teh road.


No, the denial was not proper, but the requested change did not even need approval in the first place. Reversed.

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