Nancy Lewis Revocable Trust Variance

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Nancy Lewis Revocable Trust Variance } Docket No. 110-6-08 Vtec
(Appeal of Pinan) }
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Decision and Order on Motion to Reinstate Appeal
Appellants Paul Pinan and Helen Pinan originally appealed from a May 14, 2008
decision of the Development Review Board (DRB) of the Town of Colchester, granting a
variance “for encroachment in the front yard and Shoreland District setback for the
construction of a single-family home with an attached garage” to Appellee-Applicant
Nancy Lewis for the Nancy Lewis Revocable Trust. Since July 31, 2008, Appellants have
been represented by Matthew T. Daly, Esq. Appellee-Applicants Nancy Lewis, David
Lewis, and the Nancy Lewis Revocable Trust (Applicants) are represented by Edward
D. Fitzpatrick, Esq. The Town of Colchester is represented by Thomas G. Walsh, Esq.
At a pretrial conference held by telephone on August 4, 2008, Attorneys Daly
and Fitzpatrick participated. Based on the representations of counsel at that conference,
the case was placed on inactive status while Applicants applied to the Town for their
septic system (wastewater disposal) approval. A scheduling order issued on August 8,
2008, required Applicant’s attorney to file brief monthly status reports with the Court
regarding the status of the septic system application, and also when a decision on the
application would be made.
Until July 1, 2007, municipalities had authority to regulate on-site septic systems
through municipal sewage ordinances under 24 V.S.A. ch. 102. Since 2002, 10 V.S.A. ch.
64, regulating potable water and wastewater system permits, has given the Vermont
Agency of Natural Resources (ANR) jurisdiction over certain on-site wastewater
disposal systems. Under 10 V.S.A. § 1976, the ANR has authority to delegate to
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qualifying municipalities the authority to implement and administer the provisions of
10 V.S.A. ch. 64 and the rules adopted under it, as well as the enforcement provisions of
10 V.S.A. ch. 201. Since December 13, 2005, the Town of Colchester has been a
delegated municipality, authorized to issue all permits required under the state statute
and rules.
As of July 1, 2007, under 10 V.S.A. § 1976(b), provisions of municipal ordinances
that regulate potable water supplies and wastewater systems were superseded by the
state statute and regulations governing wastewater disposal systems, except that
municipalities that had received delegation were also allowed to continue to regulate
systems exempt from state regulation under their municipal ordinances, and to
establish their own procedural requirements consistent with the state statute and rules.
That is, although many existing municipal on-site permits were grandfathered, after
July 1, 2007, only the state ANR, or a delegated municipality, had authority to issue on-
site septic permits.
Attorney Fitzpatrick filed a report in September 2008 stating that Applicants’
consultant was working with the Town “on various testing procedures in connection
with an application for a septic permit” and that the Court would be notified when “a
decision has been made as to the suitability of the property for an approved septic
location.” Mr. Fitzpatrick also filed reports in October and November stating that there
was no change in the status of the application, as the consultant’s investigation had not
then been completed.
At a telephone conference held on December 22, 2008, at which the Town’s
attorney participated as well as Appellants’ and Applicants’ attorneys, the Court
discussed with the parties the timing of necessary testing before Applicants could
determine whether the septic system application would be filed or abandoned, and
various options regarding dismissing the appeal or leaving it pending in an inactive
status. At the conference, the parties agreed in principle to circulate a stipulation to
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close the appeal with leave to reopen it within 45 days of either the decision on the
septic system application or if Applicants decided to abandon the septic system
application, whichever would occur first.
On January 12, 2009, the parties filed the following stipulation, signed by all
three attorneys; the Court entered it as a court order, “so ordered,” on the same day. It
provided in full that:
1. The Court may dismiss this matter without prejudice.
2. The Appellants may reinstitute this appeal any time within 45 days of the date
of the issuance of a permit by the Town of Colchester approving a septic system
which is the subject of this appeal.
Nothing in the language of the stipulation requires notice to Appellants of the
anticipated permit issuance. Nothing in the language of the stipulation requires the
permit to be a municipal permit; in fact, as of the date of the stipulation no such permits
were authorized except for projects exempt from the state regulations.
Applicants’ engineer proceeded to develop the plans for a wastewater disposal
system; the last revision date on the plans was December 30, 2009, nearly a year after
the stipulation had been filed. On January 22, 2010, the Town of Colchester, on behalf
of the Wastewater Management Division of the ANR, issued a Wastewater System and
Potable Water Supply Permit, WW-C-0173 (the Wastewater Permit), to Nancy Lewis for
the project. Mr. Gerry Kittle, the Town of Colchester’s On-Site Wastewater Official,
signed the Permit. The Permit is replete with the phrase: “the Town of Colchester on
behalf of the Wastewater Management Division.”
No appeal was filed of the issuance of the Wastewater System Permit. The 45
days to reopen the original appeal, counted from January 22, 2010, expired on March 8,
2010; no request to reinstate the appeal was filed by that date. On April 8, 2010,
Applicants’ attorney sent a copy of the Wastewater Permit to Appellants’ attorney,
stating in an email that Applicants intended to proceed with their project, and inquiring
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as to the position of Appellants. Even if the 45 days were to be counted from the April
8, 2010 provision of a copy of the Wastewater Permit to Appellants’ attorney, that
period would have expired on May 24, 2010.
Applicants proceeded with the design of their project, and obtained the final
Zoning Permit from the Zoning Administrator on January 5, 2011. The only reference
to the septic system in the one-page zoning permit application is the check mark
indicating that the proposed sewer system is an on-site rather than a municipal system.
Appellants filed the present motion to reinstate the original variance appeal on
February 18, 2011, nearly 13 months after the issuance of the Wastewater Permit, and
more than 10 months after receiving a copy of that permit. They ask that it be treated as
timely filed from the issuance of the Zoning Permit, arguing that the Town of
Colchester’s issuance of the Wastewater Permit on behalf of the Wastewater
Management Division of the ANR was a State of Vermont permit and not a Town of
Colchester permit.
However, the terms of the stipulation did not require that the septic system
permit be a Town of Colchester permit. Indeed, since July of 2007, municipal authority
to issue such municipal permits has been superseded. Instead, municipalities with
delegation under 10 V.S.A. § 1976 may issue permits under the state statute and
regulations. The terms of the stipulation required that the time for reopening the
appeal be measured from “issuance of a permit by the Town of Colchester approving a
septic system” for the project. The permit approving the septic system was issued by
the Town of Colchester, albeit on behalf of the state ANR, on January 22, 2010. The
Court declines to allow the appeal to be reopened based on a request filed more than a
year later.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellants’ Motion to Reinstate the appeal is DENIED as untimely filed.
Done at Berlin, Vermont, this 29th day of April, 2011.
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Merideth Wright
Environmental Judge
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