## Facts

- The Miserocchis bought an 18-acre parcel containing a preexisting machinery barn located about 10–20 feet from the road.
- After the barn was built, the town adopted zoning regulations requiring a minimum 40-foot front-yard setback, making the barn a setback-noncomplying (nonconforming) structure.
- The property lay in a zoning district where both agricultural uses and one-family dwellings were permitted.
- The Miserocchis sought to make interior changes so the barn could be used for residential purposes, including adding water and sewage service and placing a mobile home partially inside the barn.
- After being informed by the town that the residential use was not allowed as implemented, the Miserocchis applied to the town’s Zoning Board of Adjustment for approval to change the barn’s use and for a variance related to the setback noncompliance.
- The zoning board denied the requests (or did not approve the residential conversion as proposed), and the Miserocchis appealed to the Environmental Court.
- The Environmental Court ruled against the Miserocchis, reasoning that converting the structure to residential use would “increase the intensity of the use of the noncomplying part of the structure.”
- The Miserocchis appealed to the Vermont Supreme Court.

## Issues

1. Whether Clarendon’s zoning regulations required conditional-use approval to change an existing setback-noncomplying structure from one permitted use (agricultural) to another permitted use (residential).
2. Whether the Environmental Court could deny the residential conversion on the theory that it would increase the “intensity” of use of the noncomplying portion of the structure, absent ordinance language clearly making that a basis for denial.
3. Whether the variance request had to be evaluated under Vermont’s variance criteria (unnecessary hardship and related statutory factors), rather than being rejected based solely on a generalized “intensity of use” rationale.

## Decision

- The Vermont Supreme Court reversed the Environmental Court’s decision to the extent it treated the conversion to residential use as barred merely because it would increase the “intensity” of use of the noncomplying portion of the barn.
- The Court held that, because residential and agricultural uses were both permitted in the zoning district, the change from agricultural to residential use was not automatically subject to conditional-use review absent a clear regulatory requirement.
- The Court drew a line between a noncomplying structure (a setback problem) and a nonconforming use; the proposed residence would not create a nonconforming use in a district where residences were allowed.
- The Court remanded for further proceedings consistent with its interpretation of the ordinance and for proper consideration of the variance request under the governing variance standards.

## Legal Principles

- A municipality may not require conditional-use approval for a change from one permitted use to another permitted use unless the zoning regulations clearly impose that requirement.
- A setback-noncomplying building is a noncomplying structure; when the underlying uses are permitted, a change in use does not by itself convert the project into a prohibited nonconforming use.
- A court or board may not deny a proposal based only on an “increase in intensity” label where the zoning text does not define or use that concept as a controlling standard for changes within a noncomplying structure.
- Variance requests must be analyzed under Vermont’s variance criteria (including unnecessary hardship, unique physical circumstances, no substantial detriment to the public good, and consistency with the plan), not replaced with an ad hoc intensity-based denial.

## Conclusion

The Vermont Supreme Court held that converting a setback-noncomplying barn from agricultural use to residential use in a district permitting both uses could not be rejected solely as an “increase in intensity” of the noncomplying portion of the structure, and it reversed and remanded for application of the proper ordinance interpretation and variance standards.


In re Appeal of Miserocchi, 749 A.2d 607 (2000)