Freimour and Menard CU

STATE OF VERMONT
SUPERIOR COURT—ENVIRONMENTAL DIVISION
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In re Freimour & Menard Conditional Use } Docket No. 59-4-11 Vtec
Permit (Appeal of Pigeon) }
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Decision on Cross-Motions for Summary Judgment
This appeal concerns an application by Leon Freimour and Sharon Menard
(“Applicants”) for a conditional use permit to change the use of a recently re-constructed
dwelling from seasonal to year-round use. On March 24, 2011, the Town of Swanton Zoning
Board of Adjustment (“the ZBA”) voted to grant the permit to Applicants, and Allen and
Doreen Pigeon (“Neighbors”) appealed that decision to this Court.
Currently before the Court are cross-motions for summary judgment. Applicants seek
summary judgment on nearly all of the Questions in Neighbors’ Statement of Questions.
Neighbors oppose that motion and request that the Court issue partial summary judgment to
Neighbors “on the meaning and effect” of the Town of Swanton’s property access requirements
as applied to Applicants’ dwelling. (Appellants’ Opp’n Appellee’s Mot. Summ. J. and Cross
Mot. for Partial Summ. J. 17, filed December 15, 2011).
Applicants are represented here by Claudine C. Safar, Esq.; Neighbors are represented
by Pietro J. Lynn, Esq. and Sean M. Toohey, Esq.
Background Facts
For the sole purpose of putting the pending motions into context, the Court recites the
following material facts, which it understands to be undisputed unless otherwise noted:
1. Applicants own property located at 24 Sunset Harbor Road in the Town of Swanton,
Vermont. Applicants’ property is located within the Town’s Shoreland Recreation Zoning
District (“SR District”). A residential dwelling was constructed on Applicants’ property prior to
the enactment of zoning.
2. Through 2010, Applicants used their property as a seasonal camp.
3. Access to Applicants’ property from Campbell Bay Road, a public road, is only available
via Yandow Road, a private road. Ownership of Yandow Road is disputed. Applicants assert
that they have a right to use Yandow Road to access their property.
4. On August 6, 2010, Applicants filed an application with the Agency of Natural
Resources (“ANR”) for a Wastewater System and Potable Water Supply permit for the
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“[r]econstruction of existing seasonal dwelling” at 24 Sunset Harbor Road. (Mot. for Summ. J.,
Ex. A 3, filed Nov. 8, 2011). ANR approved the wastewater permit application on September 6,
2010, granting Applicants Permit No. WW-6-2277. The permit approves a project “to
reconstruct an existing three bedroom seasonal camp . . . served by onsite drilled bedrock well
and offsite wastewater disposal system.” (Mot. for Summ. J., Ex. B 1, filed Nov. 8, 2011).
5. On August 26, 2010, the ZBA voted to grant Applicants a variance and building permit
to “replace an existing 36ft. by 20ft. single-story seasonal camp with a two-story 30ft. by 36ft.
two-story camp which does not meet the front required setback . . . and the rear lake setback . . .
and also the side setback.” (Applicants’/Appellees’ Objection to Appellant’s Cross Mot. for
Summ. J., Ex. T 1, filed Jan. 13, 2010).
6. Sometime during 2010, Applicants demolished and replaced the dwelling on their
property. Although no party explicitly asserts that both the now-demolished dwelling and the
newly constructed dwelling are single-family dwellings (rather than multi-family dwellings),
the parties appear to agree to this fact and do not assert otherwise. The parties disagree about
whether the now-demolished dwelling had two or three bedrooms.
7. On February 7, 2011, Applicants filed an application with ANR for a Wastewater System
& Potable Water Supply permit for the “[c]onversion of existing seasonal dwelling to year
round use” at 24 Sunset Harbor Road. (Mot. for Summ. J., Ex. C 3, filed Nov. 8, 2011.) ANR
approved the wastewater permit application on February 11, 2011, granting Applicants Permit
No. WW-6-2277-1. The permit approves a project “to convert a recently reconstructed three
bedroom single family residence to year round occupancy, served by previously approved and
constructed onsite drilled bedrock well and offsite wastewater disposal system.” (Mot. for
Summ. J., Ex. D 1, filed Nov. 8, 2011).
8. On February 18, 2011, Applicants filed an application, No. CU #397, with the ZBA for
conditional use approval to substitute an existing dwelling with a newly constructed dwelling
and to convert the use of the residence from seasonal to year-round use.
9. On March 24, 2011, the ZBA held a public hearing on application CU #397 and voted to
approve the issuance of a conditional use permit to Applicants, subject to one condition. On
March 28, 2011, Joel Clark, the Chair of the ZBA (“ZBA Chair”), sent Applicants a letter
indicating the ZBA’s grant of conditional use approval to Applicants “to convert and substitute
a former seasonal dwelling with a newly constructed year round residence at 24 Sunset Harbor
Road,” subject to the condition that Applicants “shall improve the Sunset Harbor Road from
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Yandow Road to the northern end of their lot subject to the requirements of 3.2A(1) of the
zoning bylaws.” (Mot. for Summ. J., Ex. G, filed Nov. 8, 2007).
10. On April 26, 2011, Neighbors filed notice of appeal of the ZBA’s decision with this Court
and, subsequently, filed a Statement of Questions containing 18 Questions.
11. On April 28, 2011, during a public hearing, the ZBA heard comments and answered
questions from Applicants, Neighbors, and others seeking clarification of the ZBA’s decision to
grant Applicants conditional use approval for the year-round use of their property at 24 Sunset
Harbor Road. In response to one line of commentary, the ZBA Chair indicated that the ZBA did
not address the issue of property ownership at their previous meeting and “that if [Applicants]
put in the driveway [they] planned to propose, it would be sufficient and would not require
improvement of Sunset Harbor Road.” (Mot. for Summ. J., Ex. I 3–4, filed Nov. 8, 2011). After
taking comments and addressing the questions, the ZBA voted to “approve the [ZBA] minutes
of 3/24/11 as written” (Id., Ex. I 4).
12. The minutes of a ZBA hearing held December 8, 2011 reflect that at the ZBA’s October
27, 2011 public hearing, Applicants ”approached the Zoning Board during public comment” to
request “a change to the condition placed on their request in the 3/24/11 hearing.”
(Applicants’/Appellees’ Objection to Appellant’s Cross Mot. for Summ. J., Ex. U 2, filed Jan. 13,
2012.) The minutes further reflect that the ZBA, in response, “recommended that they make an
official request for removal of the condition, which would be reviewed at a warned hearing.”
(Id.)
13. On November 8, 2011, Applicants filed their pending motion for summary judgment, on
a majority of the Questions in Neighbors’ Statement of Questions.
14. On November 17, 2011, notice was posted for a public hearing of the ZBA to be held
December 8, 2011, to consider a “Conditional Use Request of Leon Freimour & Sharon Menard
to remove the condition from their Conditional Use Permit #397, issued by the Zoning Board of
Adjustment on March 28, 2011.” (Appellants’ Opp’n to Appellees’ Mot. for Summ. J. and Cross
Mot. for Partial Summ. J., Ex. 15, filed Dec. 15, 2011.)
15. On December 8, 2011, the ZBA voted to approve Applicants’ request and remove the
condition requiring Applicants to improve Sunset Harbor Road. In place of the condition, the
ZBA voted to allow Applicants to build a driveway to their property from Yandow Road.
16. On December 15, 2011, Neighbors filed the pending cross-motion for partial summary
judgment and opposition to Applicants’ motion for summary judgment with this Court.
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Discussion
Neighbors appeal the ZBA’s March 24, 2011 decision granting conditional use approval
to Applicants to change the use of a recently re-constructed dwelling from seasonal to year-
round use. Currently pending before the Court are the parties’ cross-motions for summary
judgment, which address nearly all of the 18 Questions raised by Neighbors in their Statement
of Questions. Applicants’ motion asserts that they are entitled to summary judgment on 17 of
the 18 Questions raised by Neighbors. In their cross-motion, Neighbors argue that Applicants
are not entitled to summary judgment on any of their Questions because there are disputed
material facts concerning each Question. Neighbors also request that the Court grant them
partial summary judgment “on the meaning and effect” of the Town of Swanton’s property
access requirements as applied to Applicants’ dwelling. (Appellants’ Opp’n Appellee’s Mot.
Summ. J. and Cross Mot. for Partial Summ. J. 17, filed December 15, 2011).
Before addressing these arguments we note that we will only grant summary judgment
for either of the moving parties here if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, . . . show that there is no genuine
issue as to any material fact” and one of the parties “is entitled to judgment as a matter of law.”
V.R.C.P. 56(c)(3) (2011) (amended Jan. 23, 2012)1; see V.R.E.C.P. 5(a)(2). In considering the
parties’ cross-motions for summary judgment, we give each party the “benefit of all reasonable
doubts and inferences when the opposing party’s motion is being judged.” City of Burlington
v. Fairpoint Commc’ns, 2009 VT 59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M. Burlington Co., 155
Vt. 44, 48 (1990)). That is, we “accept as true the [factual] allegations made in opposition to
[each] motion for summary judgment, so long as they are supported by affidavits or other
evidentiary material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.
We address the pending cross-motions for summary judgment with these standards in
mind.
I. Questions 1-5
Neighbors’ Questions 1 through 5 challenge the authority of the ZBA to impose the
condition it placed upon the conditional use approval for Applicants’ use conversion and ask
whether the condition satisfies various provisions in the Land Use & Development Regulations
1 We note that an updated version of V.R.C.P. 56 became effective on January 23, 2012. However, we
analyze this motion under the previous version of the rule because that version was in effect at the time
the pending motions were filed.
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for the Town & Village of Swanton (“the Regulations”). The condition the ZBA included in its
March 24, 2011 conditional use approval was that Applicants must “improve the Sunset Harbor
Road from Yandow Road to the northern end of their lot subject to the requirements of 3.2A(1)
of the zoning bylaws.”2 (Mot. for Summ. J., Ex. G, filed Nov. 8, 2007).
Applicants contend that they are entitled to summary judgment on these Questions
because the Questions may be moot as a result of the ZBA’s decision to remove the condition
and because the Questions raise issues this Court cannot address in this appeal. Neighbors
counter that summary judgment is not warranted to Applicants on these Questions because
genuine issues of material fact exist over whether the ZBA’s inclusion of the condition
constituted a taking of private property. Neighbors also “move for partial summary judgment
on the meaning and effect of the access” requirements in the Regulations. (Appellants’ Opp’n
Appellee’s Mot. Summ. J. and Cross Mot. for Partial Summ. J. 17, filed December 15, 2011).
A. Whether Questions 1-5 are Moot
We first address Applicants’ argument that Questions 1 through 5 may be moot. We
will only declare a question from a party’s Statement of Questions moot if our resolution of the
question can no longer provide relief to the party raising it because the controversy in question
no longer exists. See In re Moriarty, 156 Vt. 160, 163 (1991) (describing the concept of
mootness). Although Applicants made their argument to the Court about mootness prior to the
ZBA’s December 11, 2011 decision removing the condition that is the subject of Questions 1
through 5, Applicants’ argument is based on anticipation of the ZBA’s decision. Because we
determine, as discussed below, that the ZBA did not retain jurisdiction over the matter
following Neighbors’ appeal to this Court of the ZBA’s March 24, 2011 decision, we disagree
with Applicants and conclude that Question 1 through 5 are not moot.
On March 24, 2011, the ZBA voted to approve the issuance of a conditional use permit,
CU #397, to Applicants, conditioned upon Applicants’ improvement of a portion of Sunset
Harbor Road. On April 26, 2011, Neighbors filed a notice of appeal of the ZBA’s decision with
this Court. In a subsequent public hearing of the ZBA, on April 28, 2011, during which the
minutes from the March 24, 2010 meeting were approved, the ZBA took public comments and
questions on their previous decision concerning Applicants’ proposed use. During a ZBA
2 The ZBA’s approval is reflected in the minutes from the public hearing before the ZBA on this and
several other applications. A copy of those minutes is attached as Exhibit G to Applicants’ motion for
summary judgment, filed with the Court on November 28, 2011.
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hearing on a non-related matter later that year, on October 27, 2011, Applicants approached the
ZBA to request “a change to the condition placed on their request in the 3/24/11 hearing.”
(Applicants’/Appellees’ Objection to Appellant’s Cross Mot. for Summ. J., Ex. U 2, filed Jan. 13,
2012.) The minutes further reflect that the ZBA, in response, “recommended that they make an
official request for removal of the condition, which would be reviewed at a warned hearing.”
(Id.) On November 17, 2011, notice was posted for a public hearing before the ZBA to be held
December 8, 2011 to consider a “Conditional Use Request of Leon Freimour & Sharon Menard
to remove the condition from their Conditional Use Permit #397, issued by the Zoning Board of
Adjustment on March 28, 2011.” (Appellants’ Opp’n to Appellees’ Mot. for Summ. J. and Cross
Mot. for Partial Summ. J., Ex. 15, filed Dec. 15, 2011.) On December 8, 2011, the ZBA voted to
approve Applicants’ request and removed the condition requiring Applicants to improve
Sunset Harbor Road. In place of the condition, the ZBA voted to allow Applicants to build a
driveway to their property from Yandow Road.
It is generally recognized that when a court issues a decision that is appealed to a higher
court, the lower court necessarily cedes jurisdiction to the higher court. See Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in the appeal.”); see also In re Teknek,
LLC, 563 F.3d 639, 650 (7th Cir. 2009) (referencing “the ancient stricture that, when a case is on
appeal, all lower courts lose jurisdiction over it and related matters”); Badger v. Rice, 124 Vt. 82,
85 (1963) (indicating that the “crucial function” of the filing of a notice of appeal is to “invoke
appellate jurisdiction by accomplishing the transfer of the cause to the reviewing authority
while the question sought to be reviewed remains open to appeal”). If this practice were not
respected, the integrity of the judicial system would be at risk because various courts could be
simultaneously analyzing and making modifications to the same judgment. See Griggs, 459
U.S. at 58, 59–60.
In issuing a decision on a zoning permit, a municipal panel acts as a quasi-judicial body.
See Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989). According to 24 V.S.A. § 4472(a), “the
exclusive remedy of an interested person with respect to any decision or act taken, or any
failure to act, under [24 V.S.A., Chapter 116] or with respect to any one or more of the
provisions of any plan or bylaw shall be . . . the appeal to the environmental division from an
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adverse decision [of the appropriate municipal panel].”3 Similar to what occurs when a notice
of appeal is filed from a lower court’s decision to our Supreme Court, when a notice of appeal
from a decision of an appropriate municipal panel is properly filed with the Environmental
Division under the provisions in 24 V.S.A., Chapter 116 and V.R.E.C.P. 5, the municipal panel is
divested if its jurisdiction over the matter on appeal and jurisdiction is conferred to the
Environmental Division. See Reporter’s Notes, V.R.E.C.P. 5(b)(1) (indicating that “the filing
deadline is jurisdictional” for appeals from municipal panel decisions).
We have previously held that Neighbors’ timely filed their appeal from the ZBA’s
original decision approving Applicants’ request for a conditional use permit, CU #397. See In re
Freimour & Menard Conditional Use Permit, No. 59-4-11 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl.
Div., Sept. 7, 2011) (Durkin, J.)4. Thus, when Neighbors filed their notice of appeal on April 26,
2011, jurisdiction over consideration of Applicants’ conditional use approval application, CU
#397, was conferred to the Environmental Division and the ZBA was divested of such
jurisdiction.
Following the filing of the notice of appeal, if the ZBA had wished to reconsider the
matter, the ZBA could have requested remand of the matter pursuant to V.R.E.C.P. 5(i), which
provides that “[a]t the request of the tribunal appealed from, the court, at any time prior to
judgment, may remand the case to that tribunal for its reconsideration.” The Court would have
then rendered a determination on whether remand was appropriate. However, because the
ZBA was divested of jurisdiction over CU #397 when the matter was appealed to this Court and
because the ZBA did not request remand, the ZBA did not have jurisdiction to effectively
reconsider its earlier decision and grant Applicants approval to receive a new conditional use
permit to replace CU #397 as originally issued.
To clarify, the decision on appeal before us is the original decision approving
Applicants’ request for conditional use approval. In the course of considering that application
in the de novo appeal now before us, any party may suggest a condition that should be placed
3 Our analysis here does not negate a party’s right, if permitted under the applicable municipal
regulations, to request that an appropriate municipal panel reconsider its prior decision, provided the
reconsideration request is made prior to the filing of an appeal to this Court.
4 Our Entry Order of September 7, 2011 erroneously referred to Neighbors’ Notice of Appeal as filed on
April 25, 2011. It was, in fact, filed on April 26, 2011. This one-day difference does not change our
conclusion that Neighbors’ notice of appeal was timely filed since April 26 is also within the 30-day
appeal period. See Freimour & Menard Conditional Use Permit, No. 59-4-11 Vtec, slip op. at 2 (indicating
that the 30-day appeal ran from either March 28, 2011 or April 28, 2011).
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upon approval, including one similar to that imposed by the ZBA: that Applicants “improve the
Sunset Harbor Road from Yandow Road to the northern end of their lot subject to the
requirements of 3.2A(1) of the zoning bylaws.” (Mot. for Summ. J., Ex. G, filed Nov. 28, 2011).
Questions 1 through 5, which address this condition, are therefore not moot.
In the context of the Court’s review of this matter, Applicants do have the right to
present to the Court alternative means of access to their property, especially when such
proposals would accommodate the concerns expressed by Neighbors or other interested parties,
as long as such proposals constitute minor revisions to the proposed use rather than substantive
changes to the type of approval sought. See In re Sisters and Brothers Inv. Group, LLP, 2009 VT
58, ¶¶ 20–21, 186 Vt. 103. Applicants’ legal memoranda imply they plan to do so. If the
Applicants do propose an alternative means of access, however, this would not render
Questions 1 through 5 moot, since the Court must ultimately determine whether Applicants’
proposed use, with or without a condition similar to that imposed by the ZBA, meets any
applicable provisions in the Regulations raised in Neighbors’ Questions 1 through 5.5
B. Whether Questions 1-5 Raise Issues the Court Can Address
Applicants also argue that they are entitled to summary judgment because Questions 1
through 5 raise issues the Environmental Division is without jurisdiction to address—boundary
line and property rights disputes. Applicants are correct that this Court does not have
jurisdiction to resolve property ownership disputes. The Civil Division of the Superior Court is
the forum vested with exclusive jurisdiction over such disputes, and we will not wade into its
jurisdiction. However, when an applicant for a municipal land use permit is challenged in
terms of his or her ownership of the property on which development is proposed, we will
require that the applicant make a threshold showing that it has some authority to use or
develop the property as proposed. See, e.g., In re Leiter Subdivision Permit, No. 85-4-07 Vtec,
5 Neighbors’ Questions 1 through 3 do not reference provisions in the Regulations, but Questions 4 and 5
ask whether Applicants’ proposed use, as conditioned by the ZBA, satisfies three specific provisions in
the Regulations: Regulations § 3.2, § 3.8, and § 5.4. While it is clear to the Court that Applicants’
proposed use must meet Regulations § 3.2 and § 5.4, for the reasons explained in Section III below, it is
not clear whether Regulations § 3.8, a section titled “Nonconforming Uses & Nonconforming Structures”
is implicated by Applicants’ proposed use. There are undisputed facts implying that the newly
constructed dwelling at 24 Sunset Harbor Road is a nonconforming structure, as recognized in the
variance and zoning permit granted to Applicants on August 26, 2010, but the Court does not presently
have facts before it to indicate that the degree of noncompliance will be increased by Applicants’
proposed use.
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slip op. at 4–5 (Vt. Envtl. Ct. Jan. 2, 2008) (Durkin, J.). Therefore, to the extent that Questions 1
through 5 go beyond this threshold inquiry, they are beyond the scope of our jurisdiction.
Applicants’ other argument concerning the Court’s ability to review Questions 1
through 5 is that the Questions address the ZBA’s authority to issue the permit condition it
included in CU #397 and that such questions are not proper in a de novo appeal. We agree that
the appeal before us is de novo. See 10 V.S.A. § 8504(h) (requiring the Environmental Division
to conduct a de novo hearing of the issues appealed except in the context of on-the-record
appeals); V.R.E.C.P. 5(g). Neighbors have not argued that the Town of Swanton has completed
the steps necessary to have its appeals heard on-the-record by this Court, nor does the record
before us indicate that the Town has taken such steps. See 24 V.S.A. § 4471(b) (detailing the
steps a municipality must take to afford its land use determinations on-the-record appellate
review).
In a de novo appeal of an appropriate municipal panel’s decision on a zoning permit
application, for the most part, we do not address questions seeking our review of the propriety
of the actions previously taken by that panel. Instead, our main focus is to review the
application anew to the extent that appellants raised specific issues in their statement of
questions. See Chioffi, 151 Vt. at 11 (“A de novo trial ‘is one where the case is heard as though
no action whatever has been held prior thereto’”) (quoting In re Poole, 136 Vt. 242, 245 (1978));
In re Torres, 154 Vt. 233, 235 (1990) (stating that, in considering an application before it, “[t]he
reach of the superior court in zoning appeals is as broad as the powers of a zoning board of
adjustment or a planning commission, but it is not broader.”). To the extent that Questions 1
through 5 ask whether the ZBA had authority to include a particular condition in their grant of
conditional use approval to Applicants, we decline to address those portions of the Questions,
concluding that we have no authority to do so. Instead, while reviewing Applicants’
application anew in the context of Neighbors’ Questions, we will consider whether any
condition, including one similar to that included in the decision appealed from, is necessary for
Applicants to be granted conditional use approval.
In conclusion, we DENY Applicants’ request for summary judgment on Questions 1
through 5. However, the only portions of these Questions remaining for our review are those
portions that challenge whether conditional use approval should be conditioned upon
Applicants’ improvement of a portion of Sunset Harbor Road so as to conform to the
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Regulations raised in Neighbors’ Questions—Regulations § 3.2, § 3.8, and § 5.4—and, if so,
whether Applicants have made a threshold showing of authority to use that portion of road.
C. Meaning and Effect of the Access Requirements
Neighbors also “move for partial summary judgment on the meaning and effect of the
access” requirements in the Regulations. (Appellants’ Opp’n Appellee’s Mot. Summ. J. and
Cross Mot. for Partial Summ. J. 17, filed December 15, 2011). This request relates to the issues
raised in Neighbors’ Questions 1 through 5 so we address it here.
It is unclear what Neighbors are asking the Court to conclude. Asking the Court to
grant partial summery judgment on the “meaning and effect of the access” requirements in the
Regulations, id., reads like a request for the Court to explain the Regulations to Neighbors,
which is effectively a request for legal advice. Because the Court cannot provide advisory
opinions to parties, we decline to grant the Neighbors request to the extent that it asks the Court
to explain the Regulations’ access requirements.
Looking further into the arguments that Neighbors make in their legal memoranda, it
appears that Neighbors may, in fact, be asking the Court to grant them summary judgment on
Questions 4 and 5. That is, it appears Neighbors are asking the Court to conclude that the
condition included in the conditional use approval the ZBA granted to Applicants does not
satisfy the provisions in the Regulations raised by Neighbors in Questions 4 and 5—Regulations
§ 3.2, § 3.8, and § 5.4.
We do not have before us the full set of undisputed material facts that we would need to
determine that Applicants’ proposed use so conditioned—or, without this condition, for that
matter—does not satisfy these provisions. Additionally, it appears from Applicants’ legal
memoranda that they plan to propose an alternative means of access to their property from that
required in the condition that is the subject of Questions 4 and 5. All this evidences to the Court
that a trial is the best means available to resolve the legal issues Neighbors pose here. A trial
will afford all parties a full and fair opportunity to present all relevant, admissible evidence.
Because we lack sufficient material facts to rule in Neighbors’ favor on Questions 4 and 5, we
decline to grant them summary judgment on those Questions. In summary, we DENY
Neighbors’ request for partial summary judgment.
II. Questions 6-15
Neighbors’ Questions 6 through 15 pertain to both the validity and the import of the
ANR wastewater permits that Applicants currently hold for their property at 24 Sunset Harbor
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Road, Permit No. WW-6-2277-1, and its immediate predecessor, Permit No. WW-6-2277.
Specifically, Questions 6 and 11 through 15 ask whether Applicants’ proposed use violates
various provisions in the Regulations due to misrepresentations Neighbors allege Applicants
made in their applications to ANR. Questions 7, 8, and 9 ask if Applicants were required to
provide notice to Neighbors of their applications for the wastewater permits and whether the
lack of such notice violates various provisions in the Regulations because Neighbors were
prevented from challenging the alleged misrepresentations. Finally, Question 10 asks whether
Applicants’ proposed use violates various provisions because the wastewater permit Applicants
obtained “approves a replacement septic system to serve a reconstructed three-bedroom
seasonal camp/residence” but “the former structure was a two-bedroom seasonal camp, and
the new structure is a three-bedroom residence intended for year-round use.” (Statement of
Questions at 3, filed May 16, 2011).
Applicants ask the Court to grant them summary judgment on Questions 6 through 15
as outside the scope of the pending appeal. Applicants argue that Neighbors’ Questions 6
through 15 challenge the validity of their wastewater permits, and that such challenges cannot
be raised in the pending appeal from a municipal panel’s grant of conditional use approval.
Neighbors respond that the current appeal is the first instance in which Neighbors received
notice of the ANR wastewater permits issued to Applicants, that they were entitled to notice at
the time of the wastewater permit applications, and that, therefore, Questions 6 through 15 are
properly within the scope of this appeal.
In the context of their appeal from the ZBA’s issuance of Applicants’ request for
conditional use approval, it is appropriate for Neighbors to question the import of Permit Nos.
WW-6-2277 and WW-6-2277-1. However, they cannot challenge the validity of the wastewater
permits in this municipal permit appeal. See In re Rose Revocable Trust, No. 2008-450, slip op.
at 1 (Vt. Mar. 5, 2009) (unpublished mem.) (affirming a decision of this Court refusing to hear a
party’s challenge of the design of a septic system approved by an ANR wastewater permit in an
appeal from the grant of a municipal conditional use permit where the appealing party argued
“that applicant obtained the [wastewater] permit from ANR based on a material
misrepresentation in the wastewater-permit application”).
An administrative appeals process to raise challenges to the issuance of waterwater
permits exists within ANR’s Wastewater System & Potable Water Supply Rules. See Envtl.
Protection Rules, Chp. 1, Wastewater System & Potable Water Supply Rules (“Wastewater
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Rules”) § 1-401 (Sept. 29, 2007). This process allows “any person whose interests are directly
affected by the permitted project” to request review and reconsideration, by progressively
higher levels within ANR, of a decision granting a wastewater permit. Id. § 1-401. Further,
ANR has authority to “revoke a [wastewater] permit either in response to a petition or [by the
ANR Secretary’s] own motion.” Id. § 1-404(a); see Rose Revocable Trust, No. 2008-450, slip op.
at 2 (acknowledging the procedures outlined in the Wastewater Rules for a party to petition for
the revocation of a wastewater permit). The Wastewater Rules specify the bases for revocation
of a permit—including the submission of “false or misleading information . . . in support of the
permit” and the “violation or failure to comply with the provisions of these Rules or
authorizing statutes”—and require petitioners to indicate their “interest in the matter and
[their] contentions, including the alleged basis for the revocation of the permit.” Wastewater
Rules § 1-404(b). In addition to the administrative appeals process, ANR decisions granting
wastewater permits are agency decisions that can be appealed to the Environmental Division
pursuant to 10 V.S.A. § 1977 and § 8504.
We do not have before us an appeal of ANR’s grant of Permit Nos. WW-6-2277 or
WW-6-2277-1. The only appeal before us is from the ZBA’s issuance of conditional use
approval to Applicants. Neighbors’ Questions 6 through 9, and 11 through 15, do not challenge
the import of Applicants’ wastewater permits upon the grant of a conditional use permit to
them; instead, these Questions ask if various provisions in the Regulations have been violated
by ANR’s issuance of a permit that Neighbors allege is invalid.
In the current appeal from a municipal land use determination, we do not have
jurisdiction to hear challenges of the validity of the wastewater permits issued by ANR. The
Wastewater Rules and the applicable statutes make clear the proper procedures for raising such
challenges. Thus, in determining whether Applicants’ proposed use conforms with provisions
in the Regulations applicable to conditional use approval, we will assume Permit Nos. WW-6-
2277 or WW-6-2277-1 are valid. Consequently we DISMISS Questions 6 through 9, and 11
through 15, as not within the scope of the pending appeal.
We turn now to Question 10. On its face, Question 10 appears to concern the import of
Permit Nos. WW-6-2277 or WW-6-2277-1 to the pending conditional use application, rather than
a challenge to the validity of those wastewater permits. Question 10 asks whether Applicants’
proposed use violates the conditional use criterion requiring that a proposed development “not
adversely affect the bylaws now in effect, including Sections § 3.3, § 3.15, & § 5.4,” since,
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according to Neighbors, Applicants’ “Wastewater System and Potable Water Supply Permit
approves a replacement septic system to serve a reconstructed three-bedroom seasonal
camp/residence when in fact the former structure was a two-bedroom seasonal camp, and the
new structure is a three-bedroom residence intended for year-round use.” (Statement of
Questions at 3, filed May 16, 2011).
Applicants’ Permit No. WW-6-2277 approves a project “to reconstruct an existing three
bedroom seasonal camp . . . served by onsite drilled bedrock well and offsite wastewater
disposal system” and the subsequent permit, Permit No. WW-6-2277-1, approves a project “to
convert a recently reconstructed three bedroom single family residence to year round
occupancy, served by previously approved and constructed onsite drilled bedrock well and
offsite wastewater disposal system.” (Mot. for Summ. J., Exs. B 1 and D 1, filed Nov. 8, 2011).
Thus, both permits are for projects involving three-bedroom dwellings, and the parties do not
dispute this. The parties also do not dispute that the newly constructed dwelling at 24 Sunset
Harbor Road contains three bedrooms. What is disputed is whether the dwelling that
Applicants demolished and replaced had two or three bedrooms.
We conclude that the portion of Question 10 going to whether the number of bedrooms
in the now-demolished dwelling differs from the number of bedrooms covered by Permit Nos.
WW-6-2277 or WW-6-2277-1 is a collateral attack on the validity of those wastewater permits.
That portion of the Question speaks to whether Applicants made misrepresentations in their
applications to ANR, a question we cannot address in the context of the pending municipal
appeal. As stated above, we will assume that the permits are valid for the purposes of this
appeal.
With this caveat in mind, we conclude that the remaining portion of Question 10 does
raise an issue the Court can address. It can be understood to ask whether the permits, on their
face, satisfy the requirements for wastewater systems included in the Regulations, particularly
in § 3.3, § 3.15, and § 5.4. We now determine whether Applicants are entitled to summary
judgment on this portion of Question 10.
We begin by noting that, as of July 1, 2007, the requirements of 10 V.S.A., Chapter 64,
and the Wastewater Rules, which establish state-wide technical standards and criteria for the
“design, construction, operation, and maintenance” of wastewater systems, supersede any
municipal regulations in Vermont seeking to do the same. Wastewater Rules § 1-501; 10 V.S.A.
§1976(b). Municipalities can continue to impose regulations that address wastewater systems as
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development generally (for instance, by imposing setbacks), but the state regulations establish a
comprehensive review and permitting process that has state-wide uniformity. 10 V.S.A. § 1971;
Wastewater Rules § 1-501.
Turning to the provisions in the Regulations Neighbors specifically reference in
Question 10, Regulations § 3.3 requires that “[w]here a conversion or change of use would
result in increased sewage generation, including but not limited to the conversion of a seasonal
or accessory dwelling to a single family dwelling . . . a zoning permit shall not be issued . . .
until a wastewater system design or upgrade has been approved in accordance with Section
3.15.” Section 3.15 of the Regulations establishes requirements for the design and construction
of wastewater systems and indicates, in subsection D, that a zoning permit cannot be issued to
an applicant whose development “requires a new or upgraded wastewater disposal system”
without meeting these requirements. Section 5.4 of the Regulations includes the conditional use
criteria as well as information on what must be included in an application for conditional use
approval.
We conclude that the substantive requirements for wastewater systems included in
Regulations § 3.15 are superseded by 10 V.S.A., Chapter 64, and the Wastewater Rules, leaving
for our review the question of whether the wastewater permits Applicants hold satisfy
Regulations § 3.3, § 3.15(D), and § 5.4. Neighbors have not pointed to any particular portion of
Regulations § 5.4 to which the wastewater permits might pertain, other than the general
conditional use criterion that a proposed development “not adversely affect” the “bylaws now
in effect.” Regulations § 5.4(D). Nor has the Court, in its own review, identified other
applicable portions of Regulations § 5.4 or of the Regulations generally. Thus, it appears that
the permits pertain only to Regulations § 3.3 and § 3.15(D).
We do not have before us facts indicating whether Applicants’ proposed use “resulted in
increased sewage generation” or “require[d] a new or upgraded wastewater disposal system.”
Regulations §§ 3.3, 3.15(d). Applicants’ have, however, presented the Court with two ANR
wastewater permits, Permit Nos. WW-6-2277 or WW-6-2277-1, the latter which approves the
wastewater system servicing Applicants’ newly constructed dwelling at 24 Sunset Harbor Road
as used on a year round basis. By issuing Permit No. WW-6-2277-1, ANR has concluded that
Applicants’ wastewater system meets the state-wide technical standards and criteria for
wastewater systems. Because the state-wide requirements supersede the only requirements for
wastewater systems that Regulations § 3.3 and § 3.15(d) require in order for the development
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serviced by those systems to receive a zoning permit, by submitting Permit No. WW-6-2277-1,
Applicants have established a rebuttable presumption that the wastewater system associated
with its proposed use conforms with Regulations § 3.3 and § 3.15(D). Nothing in Neighbors’
filings refutes this presumption. Consequently, we GRANT summary judgment to Applicants
for the remainder of Question 10.
In summary, we conclude that the portion of Question 10 addressing the number of
bedrooms in the Applicants’ now-demolished dwelling is beyond the scope of this appeal and
DISMISS that portion of the Question. Summary judgment is GRANTED to Applicants on the
remainder of Question 10, which we understand to ask whether Applicants’ wastewater
permits, on their face, satisfy the requirements for wastewater systems in the Regulations.
Given the absence of evidence to contradict the presumption afforded Applicants by their
receipt and submission to this Court of Permit No. WW-6-2277-1, we answer this Question in
the affirmative.
III. Question 16
Neighbors’ Question 16 asks whether the height of Applicants’ newly constructed
dwelling at 24 Sunset Harbor Road violates the conditional use criteria requiring that a
proposed development “not adversely affect” the “character of the neighborhood or area
affected” or the “bylaws now in effect.” Regulations § 5.4(D). Applicants argue that they are
entitled to summary judgment on Question 16 because the Question asks whether the dwelling,
as constructed, violates the Regulations and there is no enforcement action before the Court
raising that challenge. Applicants also argue that, at any rate, the height of their dwelling
complies with the Regulations. We conclude that Question 16 must be dismissed for reasons
slightly different from those Applicants have put forward but are implied by their argument
concerning the lack of an enforcement action.
The scope of our jurisdiction and authority in this de novo appeal is limited to
addressing those issues that the ZBA had the authority to address when considering the
application before it. See Torres, 154 Vt. at 235–36 (“The reach of the superior court in zoning
appeals is as broad as the powers of a zoning board of adjustment or a planning commission,
but it is not broader. . . . [W]hatever the Zoning Board of Adjustment of Planning Commission
might have done with an application properly before it, the Superior Court may also do if an
appeal is duly perfected.”). The application before us seeks a conditional use permit to “convert
seasonal dwelling to year round use.” (Mot. for Summ. J., Ex. F, filed Nov. 8, 2011). The
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construction of Applicants’ new dwelling was approved by the variance and building permit
issued to Applicants by the ZBA on August 26, 2010. Because no party appealed that decision,
it became final. The parties do not dispute that the newly constructed structure is a single-
family dwelling. The current application before us does not, on its face, seek a permit for the
construction of additions to the dwelling or for any other structural alterations to the dwelling.
Following the direction of Torres, we now turn to the Regulations to determine whether
the provisions that apply to the current application change how we understand the scope of the
development proposed therein. We first note that “conversions . . . of any building or other
structure” and “any changes in the use of any building or other structure” is a type of
development regulated in the Town of Swanton. See Regulations § 10.2 (defining “land
development,” among other terms). Under the Regulations, the “Conversion of Seasonal, Single
Family Dwelling” is a distinct conditional use authorized in the SR District, the zoning district
in which Applicants’ property lies. Regulations § 2.4, Table 2.2; see Regulations § 2.3 (indicating
that conditional uses in each zoning district require review under the Regulations’ conditional
use criteria). The Regulations define “conversion” as “[c]hanging the original purpose of a
building to a different use, with or without structural alterations” and “includes, but may not be
limited to, the conversion of seasonal or accessory dwellings to single family dwellings.”
Regulations § 10.2. These provisions indicate that, in the SR District, the conversion of a single-
family dwelling from seasonal to year round use need not include structural alterations to
constitute a proposed development requiring conformance with the conditional use criteria.
Since Applicants’ current application does not propose structural alterations in
conjunction with the proposed change in use of the dwelling at 24 Sunset Harbor Road, the
scope of our authority in reviewing Applicants’ application does not include consideration of
whether the height of Applicants’ new dwelling conforms with the conditional use criteria.
Rather, our review is limited to considering whether the conversion of their dwelling to year
round use conforms with the criteria. Because Question 16 concerns the height of Applicants’
new dwelling, and no change in height is proposed, we do not have jurisdiction to consider
Question 16 and therefore DIMISS it.
IV. Question 18
Neighbors’ Question 18 poses the general question of “[w]hether the facts as stated
support the conclusions reached by the Swanton Zoning Board of Adjustment.” (Statement of
Questions at 5, filed May 16, 2011). Within their motion for summary judgment Applicants ask
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us to dismiss this Question because the Court’s review of the ZBA’s decision is de novo and
Question 18 asks the Court to apply the standard of review applicable to on-the-record appeals.
Neighbors reply that they recognize that the Court will review the ZBA’s decision de novo, but
they assert that “understanding the basis for the ZBA’s findings is helpful in understanding
where the ZBA went wrong.” (Appellants’ Opp’n to Appellees’ Mot. for Summ. J. and Cross
Mot. for Partial Summ. J. 23, filed Dec. 15, 2011).
As stated above, we agree that the appeal before us is de novo. Instead of disputing the
standard of review applicable in this matter, Neighbors want us to consider, in our review of
Applicants’ application for conditional use approval, the factual findings made by the ZBA.
This is exactly what the Court cannot do in a de novo appeal. Instead of reviewing the lower
body’s decision for infirmities, in a de novo appeal we review an application anew to the extent
that an appellant has raised issues concerning the application. See Chioffi, 151 Vt. at 11 (“A de
novo trial ‘is one where the case is heard as though no action whatever has been held prior
thereto’”) (quoting Poole, 136 Vt. at 245); Torres, 154 Vt. at 235 (stating that, in considering an
application before it, “[t]he reach of the superior court in zoning appeals is as broad as the
powers of a zoning board of adjustment or a planning commission, but it is not broader.”). That
is, in a de novo appeal, we reach our own factual findings, based upon the evidence presented
at trial; we cannot review or evaluate the evidence presented to the ZBA, nor the propriety of
the ZBA’s actions based upon the evidence it received. Because we cannot undertake the type
of review Question 18 requests, in lieu of granting Applicants summary judgment on Question
18, we DISMISS Question 18.
Conclusion
For all of the reasons detailed above, we DENY Neighbors’ motion for partial summary
judgment in its entirety; DENY Applicants’ motion for summary judgment on Questions 1
through 5; GRANT Applicants’ motion for summary judgment on Question 10, and DISMISS
Questions 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, and 18 of Neighbors’ Statement of Questions. Although
we are denying Applicants’ motion for summary judgment on Questions 1 through 5, the only
portions of those Questions remaining for our review are those that ask whether conditioning
the grant of conditional use approval on the improvement of a portion of Sunset Harbor Road
by Applicants is necessary for Applicants’ proposed use to meet the provisions in the
Regulations raised in Neighbors’ Questions—Regulations § 3.2, § 3.8, and § 5.4—and, if so,
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whether Applicants have made a threshold showing of authority to use or develop that portion
of the road.
Consequently, all parties should prepare to present evidence at a merits hearing on
Question 17 as well as the above-described portions of Questions 1 through 5 that remain for
our review. On or before Monday, July 2, 2012, the parties shall submit a letter to the Court,
with a copy forwarded to all other parties, of a list of their and their witnesses’ unavailable
dates for trial during the period from Tuesday, August 28, through Friday, October 26, 2012.
Done at Ferrisburgh, Vermont this 6th day of June, 2012.
Thomas S. Durkin, Environmental Judge
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