Anne C. Rose Revocable Trust Building Permit

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Anne C. Rose Revocable Trust Building Permit } Docket No. 290-12-07 Vtec
(Appeal of Blood, et al.) }
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Decision and Order on Motions to Dismiss
The following group of twenty-four individuals: Stuart Blood, Lilian Shen, Michael
S. Zens, Christina M. Robinson, Sally Duston Whitlock, Dean Whitlock, Ben Bradley,
Nicolette Corrao, Barbara J. DeFelice, Christopher G. Levey, Ehrhard Frost, Brenda
Courtemanche, Robert J. Pulaski, Cyrus Severance, Linda Matteson, James W. Masland,
Mary Daly, Frank J. Barrett, Jr., Roberta Traub, Carol Penland, Bob Milanese, Fran Peront,
Richard Hodge, and Adair Mulligan, filed a Notice of Appeal asserting standing under 24
V.S.A. § 4465(b)(4), appealing from a December 1, 2007 decision of the Development
Review Board (DRB) of the Town of Thetford which upheld the Zoning Administrator’s
issuance of a building permit to Appellee-Applicant the Anne C. Rose Revocable Trust.
Appellants are represented by Paul S. Gillies, Esq. and Charles L. Merriman, Esq.;
Appellee-Applicant is represented by C. Daniel Hershenson, Esq.; Interested Parties Jake
Guest and Elizabeth Guest have entered their appearance and represent themselves; the
Town of Thetford has also entered its appearance on its own behalf and is participating in
this appeal through Michael J. Brown, the Chair of the Selectboard. This matter is set for
trial on August 22, 2008.
Applicant has moved to dismiss both questions in Appellants’ Statement of
Questions, and therefore to dismiss the appeal. The two questions are stated as: “(1)
[w]hether the [zoning] permit is inconsistent with condition 14(k) of the conditional use
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[approval] issued February 28, 2006, with respect to the distance between the septic system
and the Connecticut River; and (2) [w]hether the building permit is inconsistent with
conditions [14](i) and (j) of the conditional use [approval] relating to the design of water
supply systems and septic systems to minimize or prevent the infiltration of flood waters
into the water system[,] septic systems and discharges into the flood waters.” Applicant
has also moved to dismiss Appellants Frank Barrett, Jr., Mary Daly, Richard Hodge, Robert
Milanese, Fran Peront, and Roberta Traub as parties, for lack of standing under 24 V.S.A. §
4465(b)(3).
Under V.R.C.P. 12(b), the motion to dismiss the Statement of Questions should be
treated as a motion for summary judgment, as factual material is provided by affidavit.
However, neither party has briefed the motions as motions for summary judgment;
therefore they must be given the opportunity to present all material made pertinent to such
a motion by Rule 56. V.R.C.P. 12 (b), final sentence. In light of the limited time available
before the trial scheduled in this matter for August 22, 2008, the Court has scheduled a
telephone conference (see enclosed notice) to discuss how best to proceed. The following
facts are undisputed unless otherwise noted.
Applicant owns a 10.1-acre parcel of land on Ely Road adjacent to the Connecticut
River, in the Rural Residential zoning district and in a Flood Hazard Area overlay district.
No point on the property is more than 700 feet from the River, if measured perpendicularly
to the River at its closest point.
Conditional use approval is required for any new construction in the Flood Hazard
Area. Accordingly, Applicant filed application #3406 to construct a single family residence
on the property; the application was referred to the ZBA for conditional use approval. The
ZBA hearings on the application were held on September 13, 2005, October 11, 2005, and
December 13, 2005. A plot plan for placement of a house and wastewater system, prepared
for the property by Michael Whipple, a certified site technician, is dated September 13,
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2005, and may have been the proposal presented at the first day of hearing.
During the ZBA hearings Applicant proposed to change the location of the proposed
septic system and building envelope. Applicant’s then-attorney submitted a sketch that
showed the septic system and the building envelope as having been moved to the
northwest corner of the property, to maximize its distance from the river. The parties have
not provided a copy of the sketch plan presented at the hearing by Attorney Hotchkiss. On
February 28, 2006, the ZBA granted conditional use approval, subject to conditions
numbered (a) through (m) in paragraph 14 of its decision. The February 2006 ZBA Decision
was not appealed and became final.
Condition 14(a) of the February 2006 ZBA Decision limited the construction of
structures to a two-acre development envelope “as shown on the plan submitted” at the
hearings by Applicant’s then-attorney and provided that “any additional construction will
require the approval” of the ZBA.
The project engineer prepared a site plan depicting the project as approved by the
ZBA, showing the two-acre development envelope in the northwestern portion of the
parcel, and depicting the septic system in the most northwesterly corner of the property,
between the road and the proposed location of the house and garage. The engineer’s
affidavit reflects that the site plan dated July 26, 2007,1 was prepared from the sketch plan
drawn at the hearing.
The reduced-size copy of the Otterman July 26, 2007 topographic survey attached to
Appellants’ May 7, 2008 memorandum depicts the two-acre building envelope area in the
1 All references to this plan refer to it as having been dated July 26, 2007, and this decision
uses that date. We note that a reduced-size copy of what is presumably one sheet of this
plan, attached to Appellants’ May 7, 2008 memorandum, shows its preparation date as July
25, 2007, but contains a stamp that it was received by the ANR’s Wastewater Management
Division on July 26, 2007. This stamp appears to be the source of the date referred to.
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northwestern corner of the 10.1 acre parcel. The proposed septic system is depicted at the
northwestern corner of the two-acre building envelope, as far from the River as possible on
the property. By scale from that copy of the plan, the distance of the septic system from the
River is approximately 900 feet when measured parallel to the northerly boundary of
Applicant’s property, but is only approximately 560 feet from the River when measured at
its closest point, that is, perpendicular to the River.
Condition 14(i) of the February 2006 ZBA Decision required in full that “[a]ll new
and replacement water supply systems shall be designed so as to minimize or prevent the
infiltration of flood waters into the system.”
Condition 14(j) of the February 2006 ZBA Decision required in full that “[a]ll new
and replacement septic systems shall be designed to minimize or prevent infiltration of
flood waters into the systems and discharges from the systems into flood waters.”
Condition 14(k) of the February 2006 ZBA Decision required in full that “[t]he septic
system shall be located as shown on the plat plan at least 700’ from the Connecticut River,
[and] shall be located to avoid impairment to [the septic system] or contamination from
[the septic system] during flooding” and that “[a]dditional protection for sealing the top of
the [septic] tank[,] where the openings are located[,] shall be applied.” (Emphasis added.)
On August 9, 2007, Applicant received Wastewater System and Potable Water
Supply Permit # WW-3-9965 (the ANR Permit) from the Agency of Natural Resources.
Condition 1.1 of the ANR Permit required that:
[t]he project must be completed as described on the plans and/or documents
prepared by Tom Otterman, listed as follows:
Overall Site Plan, dated 7/26/07
Topographic Survey, dated 7/26/07
Construction Standards and Details, dated 12/11/03
and which have been stamped “APPROVED” by the Wastewater Management
Division.
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In September of 2007, Applicant applied for a zoning permit2 in order to construct
the proposed residence and associated facilities. The Zoning Administrator approved the
application, stating as his decision: “[a]pplication per decision (2-28-06) of permit
application #3406; must comply with requirements of said decision and location shown on
Otterman 7-26-07 topographic survey.” Appellants (and others) appealed the zoning
permit to the DRB by filing a petition with the DRB, claiming party status only under 24
V.S.A. § 4465(b)(4), and designating Stuart Blood to serve as their spokesperson.
On October 23, 2007, the DRB held a hearing on the appeal, at which it voted two-to-
one to uphold the Zoning Administrator’s issuance of the zoning permit. Although
Appellants’ memorandum filed on May 7, 2008 alludes to the fact that the DRB is
composed of five members, and therefore questions whether a vote of less than a majority
constitutes a decision of the DRB, that issue has not been raised in the Statement of
Questions and is not before the Court in this appeal. Moreover, neither party has provided
a copy of the December 1, 2007 written DRB decision from which this appeal was taken.
Appellants appealed the DRB decision to this Court, claiming party status only
under 24 V.S.A. § 4465(b)(4), designating Stuart Blood to serve as their spokesperson and
attaching a copy of the petition that had been filed with the DRB. After obtaining counsel,
six of the appellants claimed party status as individuals under 24 V.S.A. § 4465(b)(3); they
filed a document entitled “PETITION” with the Court and designated Mary Daly to serve
as their “spokesperson.” They stated that they adopted the statement of questions already
presented by the 4465(b)(4) group of appellants. The document did not state the interests
they claimed to be affected under § 4465(b)(3).
2 The form refers to it as a “zoning” permit, therefore and this decision will refer to it
throughout as a “zoning” permit, despite the parties’ references to it as a “building”
permit.
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Motion to Dismiss Both Questions in the Statement of Questions
To the extent that both questions in the Statement of Questions raise issues as to
whether the zoning permit is inconsistent with the February 2006 ZBA Conditional Use
Approval Decision, they appear to be appropriate questions and not subject to dismissal;
however, they also appear to be entirely suitable for resolution by summary judgment.
Applicant is correct that the February 2006 ZBA Decision became final without
appeal and cannot be challenged in the present appeal, either directly or indirectly. 24
V.S.A. § 4472(d). To the extent that that decision may be argued to contain a potential
internal inconsistency regarding the measurement method for the distance from the River,
that issue is not before the Court in the present proceeding.
Similarly, the ANR Wastewater and Potable Water Supply Permit issued in August
of 2007 has not been appealed to this Court. If there were a discrepancy between the ANR
Permit and the 2006 ZBA Conditional Use Approval Decision, Applicant might have to
apply to one of those bodies to amend its approval before Applicant could begin
construction of its project. Nevertheless, no such discrepancy is before the Court in the
present proceeding.
All that is before the Court in the present appeal is the Zoning Administrator’s
issuance of the zoning permit. The zoning permit by its terms requires compliance with all
the “requirements of” the 2006 ZBA Conditional Use Approval Decision (#3406), as well as
with “the location [shown] on the Otterman 7-26-07 topographic survey.” Thus both
questions in the Statement of Questions could be answered on summary judgment (that the
zoning permit is by its terms consistent with all the conditions of the 2006 ZBA Conditional
Use Approval Decision), but if and only if the location shown on the July 26, 2007 Otterman
topographic survey is the same location as that referenced in the 2006 ZBA Conditional Use
Approval Decision as the location “shown on the plan submitted” at the hearings by
Applicant’s then-attorney.
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The Court cannot determine from the materials submitted in connection with the
pending motions whether this is a disputed material fact. Applicant’s engineer’s affidavit
is unopposed that the July 26, 2007 Otterman topographic survey was prepared from the
sketch plan submitted at the hearing. Applicant’s engineer’s affidavit is also unopposed
that the 700-foot distance referenced in Condition 14(k) was intended by the ZBA to be
measured along the northern boundary of Applicant’s property. The parties should be
prepared to discuss at the telephone conference whether the parties wish to present the
remaining merits of this matter by summary judgment, or whether the scheduled hearing
is necessary to take evidence on this or any other remaining material fact.
Motion to Dismiss Parties
Before addressing the party status of those claiming individual appellant status in
this appeal, it is important to note that the present case is not an action under 24 V.S.A. §
4470(b) to enforce the terms of the February 2006 ZBA Decision, in which the requirements
for standing may be different than in an appeal. See, e.g., Riverview Mews, LLC v. Richard
Electric, Inc., et al., Docket No. 251-11-07 Vtec (Vt. Envtl. Ct. April 7, 2008).
In the present case all of the individuals in the group of appellants originally signed
a petition before the DRB claiming party status under 24 V.S.A. § 4465(b)(4),3 alleging that
3 From the checked-off boxes in the “status” column of the petitions, it appears that
the following individuals are voters and/or landowners in Thetford: Stuart Blood, Lilian
Shen, Michael S. Zens, Christina M. Robinson, Sally Duston Whitlock, Dean Whitlock, Ben
Bradley, Nicolette Corrao, Barbara J. DeFelice, Christopher G. Levey, Ehrhard Frost,
Brenda Courtemanche, Robert J. Pulaski, Cyrus Severance, Linda Matteson, James W.
Masland, Roberta Traub, Robert Milanese, Fran Peront, and Richard R. Hodge. It appears
that Frank J. Barrett, Jr., Mary Daly, and Carol Penland are voters or landowners in the
neighboring Vermont towns of Fairlee or Ely, and that Adair Mulligan is resident of the
New Hampshire town of Lyme, across the Connecticut River. This decision does not
address whether the cross-reference to an adjoining municipality (§ 4465(b)(2)) in §
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the zoning “permit, if granted, will not be in accord with the policies, purposes, or terms of
Thetford’s Town Plan or zoning and flood hazard area bylaws.” All of the petitioners
designated Stuart Blood as their representative, also as required by § 4465(b)(4).
Six of the original § 4465(b)(4) parties have also asserted party status as appellants
under 24 V.S.A. § 4465(b)(3): Frank J. Barrett, Jr., Mary Daly, Roberta Traub, Robert
Milanese, Fran Peront, and Richard R. Hodge. These individuals are the subject of
Applicant’s motion to dismiss them as parties. First, the provisions of § 4465(b)(4)
requiring a petition to have been filed at the DRB and requiring the group to designate a
spokesperson are inapplicable to § 4465(b)(3) party status. Therefore these six individuals’
“petition,” and their designation of Mary Daly as their spokesperson, have no force and
effect. Each individual’s claim of § 4465(b)(3) party status must be evaluated separately.
Other than in answers to Applicant’s interrogatories, provided as attachments to
Applicant’s motion, none of these six individuals has provided the Court with a statement
of the asserted “physical or environmental impact on the person’s interest under the
criteria reviewed.” The interrogatory answers do appear to reflect that each of these six
individuals has an interest that could potentially be affected by the adequacy of the septic
system design or location, but do not on their face assert an interest in whether the zoning
permit is consistent with the unappealed 2006 ZBA Conditional Use Approval Decision.
Moreover, it is not clear to the Court whether any of these six individuals wishes to
continue to claim § 4465(b)(3) party status or whether that choice makes any practical
difference to Appellants in this appeal, as none of the individuals asserts any different
issues on appeal from those raised by the § 4465(b)(4) group. Accordingly, on or before
July 31, 2008, each of the § 4465(b)(3) party status claimants shall file with the Court a brief
4465(b)(4) encompasses the potential standing of out-of-town or out-of-state individuals as
members of a § 4465(b)(4) group.
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statement asserting that person’s asserted “physical or environmental impact on the
person’s interest under the criteria reviewed.” (Emphasis added.) The “criteria reviewed”
are those found in the Statement of Questions, that is, whether the zoning permit on appeal
is consistent with the 2006 ZBA Conditional Use Approval Decision, with respect to
Conditions 14(i), (j), and (k), and not whether the unappealed 2006 ZBA Conditional Use
Approval Decision or the unappealed 2007 ANR Waste Disposal Permit approved an
appropriate design or location for the proposed septic system.
If any of the § 4465(b)(3) party status claimants presents an interest to the Court
meeting the requirements of § 4465(b)(3), the Court will then proceed to address whether
that individual has also met the participation requirements of § 4471(a). Any of the §
4465(b)(3) party status claimants who is ruled not to have individual party status will
revert to membership in the § 4465(b)(4) group.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Applicant=s Motion to Dismiss the Statement of Questions is DENIED; the parties should be
prepared to discuss at the telephone conference whether they wish to file any further
documents on summary judgment and/or whether the scheduled hearing is necessary to
resolve the remaining factual issue or issues in this case.
The Court’s ruling on Applicant’s Motion to Dismiss six appellants claiming party
status under 24 V.S.A. § 4465(b)(3) is postponed until that conference.
Done at Berlin, Vermont, this 24th day of July, 2008.
_________________________________________________
Merideth Wright
Environmental Judge
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