In re: Appeal of Bernard Roy and Marjorie Gobrecht-Roy ( 2002 )

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of Bernard Roy }
and Marjorie Gobrecht-Roy }
} Docket No. 150-9-96 Vtec
}
}
Decision and Order
Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Georgia denying their applications for conditional use approval, a variance, and a sewer permit.
Appellants are represented by Marsha Smith Meekins, Esq.; the Town is represented by Joseph
S. McLean, Esq. Predecessors in title Roderick and Lucille Kell initially entered their appearance
as interested persons, but have not actively participated.
The Statement of Questions stated in full as follows:
1. Under the Town of Georgia= s Zoning Regulations in effect in 1993, were
Appellants required to apply for any type of permit when they began to occupy
the premises on other than a part time basis?
2. If a permit was required, did the Town have in effect any valid and enforceable
regulations applicable to Appellant= s septic system and if so, which regulations
applied?
3. If a permit was required and the Town had any regulations applicable to
Appellant= s lot, does the septic system design proposed by the Appellants meet
the applicable regulations?
Question 1 as stated in the Statement of Questions was entirely answered by the Supreme Court=
s decision that A a change in use from a camp to a single family dwelling must be reviewed and
approved as a conditional use under the [1988] ordinance@ in effect in 1993. This Court= s
findings after an evidentiary hearing on Question 1, as also reflected in the Supreme Court
decision, were that the July 1993 property transfer marked the date that the property was changed
to year-round primary residence use, even though Reine Gobrecht occupied the property from
time to time in the winter and it was > suitable= for year-round use as of at least 1982. The
Supreme Court rejected this Court= s interpretation of the phrase in the zoning ordinance defining
a camp as a property A suitable for seasonal or temporary living,@ and ruled that it included a
property, such as this one, > suitable= for year-round residential use but only in fact used
seasonally.
Appellants now argue that they should be allowed to show that the so-called change in use from
camp to year-round use occurred earlier than the enactment of the 1988 ordinance, and that under
the earlier ordinance, no such permit was required. That argument was not raised in the
Statement of Questions and cannot now be raised here. On the other hand, the Town now argues
that as Appellants had filed their application for the conditional use permit after the 1994
regulations took effect, the 1994 regulations should be applied to their application, even though
the test for whether a permit was required at all was applied as of the 1993 date of the change of
use. As the Town did not cross-appeal, the Town= s argument also was not raised in this appeal
and cannot now be raised here. Village of Woodstock v. Bahramian, 160 Vt. 417, 424 (1993).
As the Supreme Court has ruled that Appellants= change of use as of 1993 obligated them to
obtain a permit in under the regulations in effect in 1993, we must proceed to determine
Appellants= application for a conditional use permit under the regulations in effect in 1993, and
to address Questions 2 and 3 of the Statement of Questions: whether in 1993 the Town had in
effect any valid and enforceable regulations applicable to Appellants= septic system and, if so,
whether the septic system design proposed by Appellants meets the applicable regulations.
We will hold a telephone conference on March 1, 2002 to set this matter for any remaining
evidentiary hearing. As before, we will not expect the Kells to participate in the conference; if
they would like to do so, they should advise the Court at 802-479-4486 and provide a telephone
number at which Court may reach them for the conference.
Done at Barre, Vermont, this 15th day of February, 2002.
___________________
Merideth Wright
Environmental Judge