Gadhue v. Marcotte, 446 A.2d 375 (Vt. 1982). · Go Syfert
Gadhue v. Marcotte, 446 A.2d 375 (Vt. 1982). Cases Citing This Book View Copy Cite
“f any reasonable use can be made of the property which is in strict conformity with the zoning regulations, 24 v.s.a. 4468(a)(2)2 will not be satisfied.”
37 citation events (19 in the last 25 years) across 4 distinct courts.
Strongest positive: Taylor CU (vtsuperct, 2017-03-22)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Taylor CU
Vt. Super. Ct. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence high
f any reasonable use can be made of the property which is in strict conformity with the zoning regulations, 24 v.s.a. 4468(a)(2)2 will not be satisfied.
cited Cited as authority (rule) Honos Real Estate, LLC Variance Denial - Decision on Motions
Vt. Super. Ct. · 2025 · confidence medium
Gadhue v. Marcotte, 141 Vt. 238, 240 (1981).
cited Cited as authority (rule) Taylor Variance
Vt. Super. Ct. · 2016 · confidence medium
Gadhue v. Marcotte, 141 Vt. 238, 240 (1982); In re Mutschler, Canning and Wilkins, 2006 VT 43, ¶ 6 , 180 Vt. 501 . 4 This is the second summary judgment motion filed by the Appellant in this case.
discussed Cited as authority (rule) Martin and Martin Variance Application (2×) also: Cited "see"
Vt. Super. Ct. · 2011 · confidence medium
Gadhue v. Marcotte, 141 Vt. 238, 240 (1982).
discussed Cited as authority (rule) Hogan Variance Permit
Vt. Super. Ct. · 2010 · confidence medium
Further (and more to the point), even if Applicants could show that it would be impossible to build a shed elsewhere on their property, it is undisputed that Applicants currently make residential use of their property through the existing house, associated parking area and site improvements lt is now well established that a variance is unnecessary when “any reasonable use can be made of the property which is in strict conformity with the zoning regulations.” Gadhue v. Marcotte, 141 Vt. 238, 240 (1982); see also ln re Dunnett, 172 Vt. 196, 200 (2001) (citations omitted).
discussed Cited as authority (rule) DeRoy Variance Applications (2×)
Vt. Super. Ct. · 2010 · confidence medium
Although such a design may be difficult, Applicants have the burden of showing that that there is “there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation.” Gadhue v. Marcotte, 141 Vt. 238, 240 (1982) (quoting the predecessor to 24 V.S.A. § 4469(a)(2)).
examined Cited as authority (rule) In Re Dunnett (5×) also: Cited "see"
Vt. · 2001 · signal: cf. · confidence medium
Cf. Gadhue, 141 Vt. at 240-41 , 446 A.2d at 377 (reversing judgment granting variance for addition of structure to property based on a failure to meet second criterion and noting “the property was already developed and being used as both a residence and a retail business”); Sorg v. North Hero Zoning Bd. of Adjustment, 135 Vt. 423, 426 , 378 A.2d 98, 101 (1977) (reversing judgment granting a variance for an addition to an existing inn and noting “the property here is not only useable as an inn, but has been and still is so used, since 1890”).
discussed Cited as authority (rule) BELVOIR FARMS HOMEOWNERS ASSOC. INC. v. North
Md. · 1999 · confidence medium
See Ex Parte Chapman, 485 So.2d 1161, 1162 (Ala.1986) (stating that an unnecessary hardship is proved when the premises “cannot be put reasonably to a conforming use because of the limitations imposed upon them....”); Ivancovich v. City of Tucson Bd. of Adj., 22 Ariz.App. 530, 538, 529 P.2d 242, 250 (1974) (“A use variance cannot be granted unless the situation arises where reasonable use cannot be made of the property in a manner consistent with the zoning regulations.”); Town of Indialantic v. Nance, 485 So.2d 1318, 1320 (Fla.Dist.Ct.App.) (noting that an applicant must prove a hards…
discussed Cited as authority (rule) State v. Kenosha County Board of Adjustment
Wis. · 1998 · confidence medium
App. Ct. 1979) (variance may not be granted absent a showing that the practical difficulty or unnecessary hardship would deprive the owner of the reasonable use of his property); Your Home, Inc. v. Town of Windham, 528 A.2d 468, 471 (Me. 1987) (in determining whether property owner would suffer undue hardship in absence of zoning variance, property owner not entitled to maximum return on his or her investment but to some reasonable use); Husnander v. Town of Barnstead, 660 A.2d 477, 478 (N.H. 1995) (where application of ordinance prevents property owner from making any reasonable use of the la…
discussed Cited as authority (rule) In Re Cumberland Farms, Inc.
Vt. · 1989 · confidence medium
See In re Maurice Memorials, 142 Vt. 532, 536-37 , 458 A.2d 1093, 1096 (1983) (variances are not intended to “afford relief from inconvenience or to prevent against the potential of lost profits”); Gadhue v. Marcotte, 141 Vt. 238, 240 , 446 A.2d 375, 376 (1982) (variance should be denied “if any reasonable use can be made of the property which is in strict conformity with the zoning regulation”); L.M.
cited Cited as authority (rule) A. G. Anderson Co. v. Chittenden Cider Mill
Vt. · 1984 · confidence medium
Gadhue v. Marcotte, 141 Vt. 238, 241 , 446 A.2d 375, 377 (1982).
examined Cited as authority (rule) In re Zoning Variance Application of Ray Reilly Tire Mart, Inc. (3×) also: Cited "see"
Vt. · 1982 · confidence medium
“All variances, of whatever type, must meet the five criteria enunciated in the statute [24 V.S.A. § 4468(a)].” Gadhue v. Marcotte, 141 Vt. 238, 241 , 446 A.2d 375, 377 (1982).
discussed Cited "see" In re Appeal of Mutschler (2×)
Vt. · 2006 · signal: see · confidence high
See Gadhue v. Marcotte, 141 Vt. 238, 241 , 446 A.2d 375, 377 (1982) (stating that, because of § 4468(a), the “claim that there is a less strict criterion for area or dimensional variances than for use variances has no merit”).
discussed Cited "see" Blow v. Town of Berlin Zoning Administrator (2×)
Vt. · 1989 · signal: see · confidence high
See Gadhue v. Marcotte, 141 Vt. 238, 240 , 446 A.2d 375, 376 (1982) (variance should be denied “if any reasonable use can be made of the property which is in strict conformity with the zoning regulations”).
cited Cited "see, e.g." Appeal of Wood
Vt. Super. Ct. · 2008 · signal: see also · confidence low
Id. at 323 ; see also Gadhue v. Marcotte, 141 Vt. 238 (1981) (Supreme Court reversing and vacating the superior court’s grant of the variance).
discussed Cited "see, e.g." Forrest Variance Application
Vt. Super. Ct. · 2007 · signal: see, e.g. · confidence medium
See, e.g., In re Dunnett, 172 Vt. 196, 200 (2001) (citing Gadhue v. Marcotte, 141 Vt. 238, 240-41 (1982) (holding that, where property was already developed and in use as residence and retail establishment, applicant was not deprived of the reasonable use of the property)).
Retrieving the full opinion text from the archive…
Helen Gadhue
v.
Norman Marcotte and Shelburne Zoning Board
36-81.
Supreme Court of Vermont.
Apr 23, 1982.
446 A.2d 375
Thomas E. McCormick of McNamara & Fitzpatrick, Inc., Burlington, for Plaintiff., Cleveland, Unsworth & Bennett, Shelburne, for Defendant.
Barney, Billings, Hill, Peck, Daley.
Cited by 18 opinions  |  Published
Billings, J.

The defendant-appellee Marcotte petitioned the Shelburne Zoning Board for a conditional use permit, 24 V.S.A. § 4407, to erect a 30' X 70' building located on the west side of U.S. Route 7 in the center of the Shelburne Village district. The building was to be used as a workshop, storage area, and garage in conjunction with the defendant’s retail sales and service business which features major appliances, farm equipment, and lawn and garden equipment. In addition he requested a variance, 24 V.S.A. § 4468, because the lot was not 150 feet wide as required by the zoning regulations. The Shelburne Zoning Board of Adjustment granted the variance and issued a conditional use permit for the building subject to several conditions which the defendant agreed to. The plaintiff-appellant Gadhue, an interested person, 24 V.S.A. § 4464(b) (3), who resides on the east side of U.S. Route 7 in Shelburne opposite the defendant’s property, appealed to the Chittenden Superior Court. 24 V.S.A. § 4471.[*240] After a de novo hearing, the court held that the building was a permissible conditional use and granted a dimensional variance subject to conditions. Plaintiff then appealed to this Court. While the various appeals have been pending and despite the lack of finality of the decisions, the defendant has, nevertheless, completed construction of the building. The two issues raised on appeal are whether (1) the dimensional variance and (2) the conditional use permit were properly granted.

24 V.S.A. § 4468(a) sets forth the five criteria for granting a variance. The statute provides that if just one of the criteria is not satisfied the variance cannot be granted. 24 V.S.A. § 4468(a). Because we hold that the second criterion was clearly not met, we do not discuss the other four.

24 V.S.A. § 4468(a) (2) provides the following:

(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

The trial court made only one finding in regard to this criterion. It found that “[t]his lot could not be further developed along the same lines without a variance.” It then concluded that 24 V.S.A. § 4468(a) (2) had been satisfied and a variance was necessary. This was error for two reasons.

First, the statute does not limit the inquiry to whether the property can be developed in conformance to its previous use without a variance. It explicitly states that variances will be granted only if “there is no possibility that the property can be developed in strict conformity with the provisions of the zoning regulation.” 24 V.S.A. § 4468 (a) (2) (emphasis added). See Sorg v. North Hero Zoning Board of Adjustment, 135 Vt. 423, 426-27, 378 A.2d 98, 101 (1977). Accordingly, if any reasonable use can be made of the property which is in strict/conformity with the zoning regulations, 24 V.S.A. § 4468(a) (2) will not be satisfied.

Second, the evidence does not support a finding that the lot could not be further developed without a variance.[*241] There was uncontroverted expert testimony that a residence could be built on the property in conformity with the zoning regulations. In addition, the property was already developed and being used as both a residence and a retail business. Therefore, the defendant was not deprived of a reasonable use of his property as required by 24 V.S.A. § 4468(a) (2) and the variance should not have been granted. Sorg, supra.

Defendant’s claim that there is a less strict criterion for area or dimensional variances than for use variances has no merit. Although this is the practice in some states, 24 V.S.A. § 4468 makes no such distinction. All variances, of whatever type, must meet the five criteria enunciated in the statute. In the single Vermont case cited by defendant in support of this position, Lewis v. Pickering, 134 Vt. 22, 26, 349 A.2d 715, 717 (1975), this Court merely acknowledged the tendency of other states to apply different standards but did not expressly apply the distinction in the decision or adopt it as the law of Vermont.

As to the second issue, the plaintiff argues that the conditional use permit should not have been granted because this building is to be used as a warehouse which is not a permitted conditional use. We do not agree. The trial court •found that the conditional use permit was requested to construct a building “to be used for storage, garage and workshop space for existing business of sales and service of appliances and farm equipment.” The trial court found that the proposed building was designed to handle the existing business and make it more efficient and was not being used to handle expansion. The court also concluded that it was a lawful nonconforming structure the primary purpose of which was to place those items of merchandise under cover which are currently stored on the porch of the house, and in the front, side and rear yards. Although the trial court’s findings might be regarded as somewhat ambiguous, they do not support the conclusion that the building was to be strictly a warehouse. Its purpose was to provide space to conduct a retail business. Absent clear error, the findings will not be overturned merely because they are controversial. Stevens v. Essex Junction Zoning Board of Adjustment, 139 Vt. 297, 303, 428 A.2d 1100, 1103 (1981) ; V.R.C.P. 52.

[*242] Reversed. Judgment of the Chittenden Superior Court granting appellee’s application for variance is vacated.