Freimour & Menard ( 2012 )

State of Vermont Superior Court - Environmental Division ====================================================================== ENTRY REGARDING MOTION ====================================================================== In re Freimour & Menard CU Permit Docket No. 59-4-11 Vtec (Municipal CU Permit Appeal) Title: Motion in Limine (Filing No. 6) Filed: October 12, 2012 Filed By: Appellants Allen and Doreen Pigeon Response in Opposition filed on November 30, 2012 by Applicants Sharon Menard and Leon Freimour Reply filed on December 3, 2012 by Appellant Allen and Doreen Pigeon ___ Granted X Denied ___ Other This matter concerns an appeal by Appellants, Doreen and Allen Pigeon, of the Town of Swanton’s Zoning Board of Adjustment’s (“ZBA”) decision granting Applicants, Sharon Menard and Leon Freimour, a conditional use permit to convert their seasonal home into a year-round residence. Appellants also commenced a parallel case in the Franklin Superior Court – Civil Division. Currently pending before this Court, is Appellants’ motion in limine requesting that: (a) the Court take judicial notice of the Franklin Superior Court’s decision and order on Appellant’s motion for contempt and (b) preclude testimony and evidence concerning ownership of the portion of land where Applicants constructed their new driveway and ownership of Yandow Road. Applicants have an obligation to make a threshold showing that they have the authority to use land as proposed in an application. In re Freimour & Menard CU Permit, No. 59-4-11 Vtec, slip op. at 8–9 (Vt. Super. Ct. – Env. Div., June 6, 2012)(Durkin, J.). Such a showing does not preclude an opponent to the project from contesting such ownership in a Civil Division proceeding. The Environmental Division is not empowered to adjudicate property ownership and use disputes; our authority in this case is to determine conformance with the applicable land use ordinance. Accordingly, the Court will allow evidence at the merits hearing that will assist in it’s determination of whether Applicants have made a sufficient threshold showing that they have the right to use the land as proposed. ___________________________________________ December 10, 2012 Thomas S. Durkin, Judge Date ====================================================================== In re Freimour and Menard Cu Permit, No. 59-4-11 Vtec (E.O. on Mot. in Limine) (Dec. 10, 2012) Pg. 2 of 2. Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: Attorney Pietro J. Lynn for Appellant Allen Pigeon Attorney Pietro J. Lynn for Appellant Doreen Pigeon For Informational Purposes Only Michael J. Gannon Esq. Co-Counsel for Appellant Sean M. Toohey Attorney Jesse D. Bugbee for Interested Person Town of Swanton For Informational Purposes Only Michael S. Gawne Esq. Appellee Sharon Menard Appellee Leon Freimour