In re: Appeal of John and Sharon O'Rear (Decision and Order on Motion for Reconsideration and on Scope of Remand)

STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of John and }
Sharon O= Rear, et al. }
} Docket No. 2-1-00 Vtec
}
}
Decision and Order on Motion for Reconsideration and on Scope of Remand
Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Calais regarding the application of Appellees Stanley and Janice Morse and Black Rock Coal,
Inc. for a conditional use permit. A number of other individuals and the Selectboard of the Town
of Calais entered their appearance as interested parties but have not been active participants.
Appellants are represented by Gerald R. Tarrant, Esq.; Appellee-Applicant1 Black Rock Coal,
Inc. is represented by George E. Rice, Esq.
Appellee-Applicant= s remaining application is for conditional use approval to extract stone from
ten acres of a 45-acre parcel of property to be purchased from Stanley and Janice Morse. The
property is located in the Rural Residential zoning district, and lies behind and to the east of the
lots fronting on the County Road. Appellee-Applicant had initially proposed that the access to
the County Road from the working site of the project be made over a right-of-way and through
an existing curb cut located on the land of Sandra Guerette (A the Guerette driveway@ ), but
during the ZBA proceedings proposed instead to establish a new curb cut somewhat southerly of
the existing one, still on the Guerette property (the new Guerette curb cut). However, the
Selectboard denied Appellee-Applicant= s application for an access permit for the new Guerette
curb cut.
Appellee-Applicant also now proposes two alternative access roads from the project property to
the County Road: one over the Guerette driveway as originally proposed, and one over a right-
of-way and the driveway curb cut of the next property to the south, owned by Mr. and Mrs.
Edward Simmons (A the Simmons driveway@ ). The Court ruled in late April that both of these
proposed access points required a permit from the Selectboard, which was a prerequisite to the
new proposals= being considered complete.
The Court also ruled that the Simmons driveway had to be remanded to the ZBA for its
consideration, as the Simmons driveway had not been considered by the ZBA when it originally
considered the project, but that the Guerette driveway had been in the original application and
therefore was before the Court in this de novo appeal. The parties have requested a remand order
to the ZBA to guide it in considering the Simmons driveway. In addition, Appellants request that
the Court reconsider its ruling that the easement grantors for these access drives are not required
to be co-applicants for the zoning permit.
Scope of Remand
The change of the project= s access route from the working site to the County Road does not
reopen the entire application. Only those aspects of the conditional use standards applicable to
the project that are affected by the change in access route may be considered in the proceedings
on remand. However, the scope of its consideration is for the ZBA to determine in the first
instance, just as if it had had the Simmons driveway before it in the original application. The
completeness of the proposed new access plans is also for the ZBA to consider in the first
instance. If the plans lack any information which the ZBA needs in order to be able to rule on the
application, the ZBA has the authority to find the application incomplete and to require that
additional information.
In the Court= s April 24 decision that the Simmons driveway had to be remanded to the ZBA, the
Court noted that it expected the ZBA to consider A at least the effect of that access location on
conditional use standard 3: traffic on roads and highways in the vicinity.@ On remand, the ZBA
should consider whether the Simmons driveway access to the County Road changes or affects its
conclusions or the conditions it determined to impose, under any of the conditional use
standards. That is, if an aspect of the project or a condition imposed on the project would be the
same regardless of the route that vehicles take from the working site to the County Road, it
should not be reconsidered by the ZBA in this remanded proceeding. If an aspect of the project
or a condition imposed on the project could be affected by the change in the route that vehicles
take from the working site to the County Road, it may be reconsidered by the ZBA in this
remanded proceeding.
Motion for Reconsideration
Appellants request that the Court reconsider its ruling that the easement grantors for these access
drives are not required to be co-applicants for the zoning permit2. The April order stated that: A it
is sufficient under the zoning laws that Appellee-Applicant holds the easement interest to the
access drives, just as the buyer of a property under contract may hold a sufficient interest to be
the sole applicant. It may be necessary, however, for Appellee-Applicant to show the extent or
scope of the access easement, by presenting into evidence the deed for the access easement.@
The Court has reviewed the Zoning Regulations and the April 24, 2001 decision. Appellants=
request for reconsideration of this issue is denied. Appellants are correct that the permit applied
for must cover the change in use of the land underlying the access easement (from its current
residential driveway use to its use as an access road to serve the rock extraction project), as well
as the rock extraction project itself. However, unlike the rules applicable to Act 250 permit
applications, nothing in state zoning law (24 V.S.A. ' 4443) or the Calais Zoning Regulations3
requires that the owner of the underlying land be an applicant for a zoning permit, as long as the
actual applicant holds an interest in the land (such as an easement, in the present case, or a life
estate, or a leasehold interest) sufficient to qualify it to apply. Similarly, a person renting a house
may operate a home occupation in the house; it is the lessee who operates the home occupation
who must apply for the permit, not the owner of the house.
Therefore, in the present case, if Appellee-Applicant has been deeded the respective easements,
the landowners need not be co-applicants. If Appellee-Applicant does not yet have a property
interest in the access road, however, the landowners must apply.
Done at Barre, Vermont, this 15th day of May, 2001.
___________________
Merideth Wright
Environmental Judge
Footnotes
1. This term is used in the singular to refer to Black Rock Coal, Inc.
2. Appellants also request a similar ruling regarding the curb cut permit applications. The
landowners may have to be, and may in fact already be, co-applicants for the 19 V.S.A. §1111
curb cut permit, but this Court has no jurisdiction to make that determination prospectively. As
we have already determined, this Court may only examine the 19 V.S.A. §1111 curb cut permit
as a prerequisite to the completeness of the zoning application.
3. In fact, §II(7)(D)(1) of the Zoning Regulations requires the “applicant” to submit the names
and addresses of “the owners of record of the property for which the permit is sought,” which
would not be necessary if the landowners always had to be applicants.