622 Keyser Hill Road Conditional Use Appeal - Decision ( 2024 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 22-ENV-00038
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
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622 Keyser Hill Road Conditional Use Appeal │ DECISION REGARDING AMENDED
│ STATEMENT OF QUESTIONS
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This is an appeal of a decision by the Town of Barnet Planning/Zoning Board granting, in
part and with conditions, a change of use/conditional use permit for the property located at 622
Keyser Hill Road, Saint Johnsbury, Vermont (the “Property”). 1 Applicants Michael and Jane
Lawton (“Applicants”) seek approval to operate a non-polluting commercial enterprise to provide
seasonal overnight camping accommodations. After the original Appellant, David Brody,
withdrew from this action, interested party Gregory Jackmauh sought to maintain the appeal
with respect to the issues raised in Appellant’s Statement of Questions. In a January 8, 2024,
Entry Order, this Court granted summary judgment on eight of those Questions, in favor of the
Applicants. 622 Keyser Hill Road Conditional Use Appeal, No. 22-ENV-00038, slip op. at 7 (Vt.
Super. Ct. Envtl. Div. Jan. 8, 2024) (Durkin, J.). With respect to the remaining four Questions, the
Court ordered Mr. Jackmauh to amend and clarify those Questions by citing to specific provisions
in the Bylaws and permit application which give rise to a triable issue. We further explained that,
to the extent possible, the revised Questions must relate to the issues raised in the original
Statement of Questions.
On January 20, 2024, Mr. Jackmauh filed an amended Statement of Questions which
contained a two-page narrative, along with four Questions containing multiple sub-questions.
Applicants filed an objection to the amended Statement of Questions, arguing that the amended
Questions are unrelated to the issues raised by the original Appellant, and that they do not raise
cognizable, triable issues. In doing so, Applicants ask this Court to dismiss Questions 1 through 4
and consequently, this appeal. For the reasons stated below, we agree that the amended
Questions raise non-jurisdictional, non-triable issues, and therefore DISMISS Questions 1
through 4.
1
The listed address for the Property says St. Johnsbury, but the Property is located in the Town of Barnet.
As a threshold issue, we are reminded that “the statement of questions should be a short,
concise and plain statement that will establish the scope of the appeal, and ultimately, the scope
of the issues for trial.” In re Champlain Marina, Inc., No. 28-2-09 Vtec, slip op. at 1-2 (Vt. Envtl.
Ct. July 31, 2009) (citation omitted). A Statement of Questions is not a mechanism for arguing
the substance of one’s claims. See In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt.
Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.) (“[D]etailed factual and legal information that
goes beyond identifying the Questions and crosses over into arguing the merits . . . is misplaced
in a Statement of Questions.”) (citation omitted).
Because Mr. Jackmauh’s amended Questions are so voluminous, we will not reproduce
them within this Decision. Generally, the Questions make factual allegations or request
information relating to the application that are more akin to discovery requests. Furthermore,
many of the Questions fail to cite to any provision in the Bylaws or the permit application. Lastly,
we decline to consider the narrative portion of Mr. Jackmauh’s amended Statement of Questions,
as it discusses the merits of his arguments and is therefore an improper use of a Statement of
Questions.
Amended Question 1 contains 12 sub-questions, each of which is directed to the
Applicants, asking about what activities will occur on the property. These sub-questions are not
legal issues that the Court can resolve, but are instead questions framed as interrogatories for
the Applicants. Sub-questions 7 and 8 are the only ones which refer to the Zoning Bylaws, and
even so, they do not raise a cognizable issue relating to this application. Because these sub-
questions are not directed to the Court, and because they do not raise any discernable issue for
this Court to resolve, we hereby DISMISS amended Question 1 in its entirety.
Amended Question 2 contains 6 sub-questions, each of which asks about actions taken
by the Zoning Board. Specifically, these Questions ask whether the Zoning Board was aware of
unpermitted activities occurring on the Property, and whether the Board took steps to verify
whether the application was true, accurate, and complete. These sub-questions ask the Court to
review the Zoning Board’s actions, which we cannot do. This appeal is de novo, meaning that we
review the application “as though no action whatever has been held prior thereto.” Chioffi v.
Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (citation omitted); 10 V.S.A. § 8504(h). Because
Question 2, as amended, pertains exclusively to actions (or inaction) taken by the Zoning Board,
we must DISMISS Question 2 in its entirety.
Amended Question 3 contains 8 sub-questions, each of which is unrelated to the
application presently before the Court. Sub-question 1 asks about the Applicants’ tax bill and
does not cite to any provision in the bylaw or permit application. Sub-questions 2 and 3 ask about
permitted uses in the Low Density Zoning District. This application is for conditional use approval,
so it is unclear to the Court how these sub-questions relate to the pending application. Sub-
questions 4 through 8 ask generally about how the proposed project should be classified. These
questions were all answered in the Court’s January 8, 2024, Entry Order, in which we determined
that the proposed use is a non-polluting commercial enterprise, which is listed as a conditional
use in the zoning district in which the project is located. 622 Keyser Hill Road Conditional Use
Appeal, No. 22-ENV-00038, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Jan. 8, 2024)(Durkin, J.).
Because these Questions have already been answered, we hereby DISMISS Question 3 in its
entirety.
Lastly, Question 4 as amended asks whether the proposed glamping structures are
prohibited because “they offer sleeping and living accommodations and are therefore NOT “non-
residential” and NOT “commercial” enterprises and are NOT designated by the regulations as
either a Permitted Use or a Conditional Use?” Amended Statement of Questions at 6, filed
January 20, 2024. The Court is not entirely sure what this Question is asking. To the extent that
it challenges how the proposed use should be classified, we again refer to our previous decision,
which conclusively determined that the proposed project is a “non-polluting commercial
enterprise.” Therefore, we must DISMISS Question 4 as amended.
In reviewing Mr. Jackmauh’s amended Statement of Questions, we conclude that none of
the Questions raise triable issues for this Court to adjudicate. As a result, we must DISMISS
Questions 1 through 4. In doing so, there are no remaining Questions before the Court.
This concludes the matter before the Court. A Judgment Order accompanies this
Decision.
Electronically signed at Newfane, Vermont on Monday, April 15, 2024, pursuant to
V.R.E.F. 9(d).
Thomas S. Durkin, Superior Judge
Superior Court, Environmental Division