STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Davies } Docket No. 13‐1‐05 Vtec (Diamond CU Application) } }
Decision on Pending Motions U
This matter concerns an appeal by Iain Davies and Donna Cox‐Davies from a
decision of the Morristown Development Review Board (DRB) dated December 17,
2004, granting conditional use approval to Appellee‐Applicants Mitchell and Elaine
Diamond for a home business located at 374 Farm Hill Road in the Town’s Rural
Residential with Agriculture zoning district. This appeal is taken as an on‐the‐record
appeal, since the Town has adopted and implemented the procedures necessary for
such appeals pursuant to 24 V.S.A. § 4471(b). Appellants are represented by Ellen M.
O’Toole, Esq.; Appellee‐Applicants are represented by Russell D. Barr, Esq.; the Town
of Morristown (Town) appears as an Interested Person and is represented by Will S.
Baker, Esq. Now pending before this Court are Appellee‐Applicants’ motion to dismiss
and Appellants’ cross‐motion for summary judgment.
Factual and Procedural Background U
On November 16, 2004, Appellee‐Applicants applied to the DRB for conditional
use approval for a ‘technical illustrating’ home business to be conducted in a portion of
an existing 24ʹ by 24ʹ workshop on Appellee‐Applicants’ 14± acre1 parcel of land located TP PT
at 374 Farm Hill Road in the Town’s Rural Residential with Agriculture zoning district.
1 The DRB Decision describes the lot as 13.8 acres in area, while the Coordinator’s JO describes the lot as TP PT
14.01 acres in area. The parcel of land is one lot in an eight‐lot subdivision (“Farm Hill Road Subdivision”).
The Farm Hill Road Subdivision, and every lot within it, is encumbered by an Act 250
permit (#5L1054) and by deeded protective covenants. All property owners in the
subdivision are members of the Farm Hill Road Owners Association. Appellants also
own property in the Farm Hill Road Subdivision.
The DRB held a warned public hearing on Appellee’s conditional use application
on December 9, 2004. Several adjacent property owners either attended the hearing or
submitted written comments, expressing concerns regarding the application. The
concerns related to “setting a precedent” for other home businesses; increased traffic on
the subdivision’s privately maintained road; and to potential violations of the
covenants, Act 250 permit conditions, and wastewater permitting requirements.
At the December 9th hearing, Appellee‐Applicants agreed that any conditional P P
use permit issued could be limited to the term of their ownership of the subject
property.
At the December 9th hearing, the DRB Chair noted that the Act 250 permit and P P
the protective covenants were not within the DRB’s jurisdiction; he advised that there
were separate avenues of review and enforcement for the Act 250 permit and the
protective covenants. A motion was then made to approve the conditional use permit
application with the condition that the permit would be limited to the applicants only
and that it would expire upon their sale of the property. The motion to approve was
seconded, voted on, and passed unanimously.
The conditional use permit application was approved by a written decision the
DRB issued on December 17, 2004. Appellants filed a timely appeal with the DRB on
January 14, 2005, and the DRB forwarded the notice of appeal to this Court, pursuant to
V.R.E.C.P. 5(b)(1).
Page 2 of 7. Appellants originally submitted sixteen questions for review by this Court.
Many of those questions related to matters outside the jurisdiction of the DRB, and of
this Court, including issues regarding Appellee‐Applicants’ compliance with some of
the Act 250 permit conditions and the protective covenants contained in the parties’
deeds. Appellee‐Applicants filed a motion to dismiss Appellants’ entire Statement of
Questions, arguing lack of subject matter jurisdiction pursuant to V.R.C.P. 12(b)(1) and
failure to state a claim upon which relief can be granted pursuant to V.R.C.P. 12(b)(6).
Appellee‐Applicant further asserted that Questions 1–3, 7, 9, 11–14, and 16 had not been
raised before the DRB and therefore cannot be raised for the first time here.
Appellants responded with a combined opposition to the motion to dismiss and
their own cross‐motion for summary judgment, supported by a memorandum and a
supplemental affidavit from Appellants’ attorney, Ellen M. O’Toole. Several
attachments accompanied the supplemental affidavit, including a document entitled
“Essential Question(s) for Environmental Commission, District Five.” Despite its title,
the “essential question(s)” are in fact addressed to this Court, which is referred to in the
document as “the Environmental Court of the District Five Commission.” Appellants
described the “essential question(s)” document that was attached to their memorandum
in opposition to the motion to dismiss as a “‘distillation’ of relevant issues” “for the
Court’s convenience.”
It appears that Appellants intended that this Court disregard their previous
Statement of sixteen questions and instead consider only the “revised” or “simplified”
question, as evidenced by language in their opposition memorandum which states that
“Appellants simply ask that this Court focus solely on the revised question(s) for
consideration,” and “consider only the simplified amended question.” Since the
Appellants’ request reduces, and does not add to, the issues raised in their earlier
submission, substituting the “distillation” for the earlier submission works no
Page 3 of 7. inconvenience on the opposing party or this Court. We therefore treat the “essential
question(s)” document as an amended Statement of Questions, and hereinafter refer to
it as such. The text of Appellants’ amended Statement of Questions reads as follows:
Are Act 250 and Wastewater permitting pre‐approval requirements from the State authorities violated by the undisclosed erection of a substantial structure used for business purposes in a residential development, regardless of whether the municipality’s zoning board approved a conditional use permit, and particularly when there is evidence that additional Wastewater permitting requirements may have been ignored? The Homeowners association, in this case the Farm Hill Road Homeowners association of Morrisville, Vermont, has incorporated, by reference in their Covenants, specific requirements to be in compliance with all State permitting requirements, including Act 250 and Wastewater permitting. Therefore, is the erection of a commercial structure a de facto violation of both the State’s regulations and the Covenant’s, which consequently, co‐exist and specifically incorporate by reference therein, within the purview of Act 250 and other State regulations? Are such violations enforceable by State authorities and the Environmental Court of the District Five Commission, on appeal or otherwise? If not, where does proper jurisdiction lie?
Discussion U
As an initial matter, the issues Appellants raise regarding alleged Act 250
violations have been rendered moot by the District 5 Environmental Coordinator’s
jurisdictional opinion dated November 17, 2005. In that jurisdictional opinion, the
Coordinator concluded that the “construction and present commercial use of the 24 x 24
structure do not constitute either [a] substantial or material change under Act 250.
Consequently, an amended land use permit is not required.”
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF VERMONT
ENVIRONMENTAL COURT
} Appeal of Davies } Docket No. 13‐1‐05 Vtec (Diamond CU Application) } }
Decision on Pending Motions U
This matter concerns an appeal by Iain Davies and Donna Cox‐Davies from a
decision of the Morristown Development Review Board (DRB) dated December 17,
2004, granting conditional use approval to Appellee‐Applicants Mitchell and Elaine
Diamond for a home business located at 374 Farm Hill Road in the Town’s Rural
Residential with Agriculture zoning district. This appeal is taken as an on‐the‐record
appeal, since the Town has adopted and implemented the procedures necessary for
such appeals pursuant to 24 V.S.A. § 4471(b). Appellants are represented by Ellen M.
O’Toole, Esq.; Appellee‐Applicants are represented by Russell D. Barr, Esq.; the Town
of Morristown (Town) appears as an Interested Person and is represented by Will S.
Baker, Esq. Now pending before this Court are Appellee‐Applicants’ motion to dismiss
and Appellants’ cross‐motion for summary judgment.
Factual and Procedural Background U
On November 16, 2004, Appellee‐Applicants applied to the DRB for conditional
use approval for a ‘technical illustrating’ home business to be conducted in a portion of
an existing 24ʹ by 24ʹ workshop on Appellee‐Applicants’ 14± acre1 parcel of land located TP PT
at 374 Farm Hill Road in the Town’s Rural Residential with Agriculture zoning district.
1 The DRB Decision describes the lot as 13.8 acres in area, while the Coordinator’s JO describes the lot as TP PT
14.01 acres in area. The parcel of land is one lot in an eight‐lot subdivision (“Farm Hill Road Subdivision”).
The Farm Hill Road Subdivision, and every lot within it, is encumbered by an Act 250
permit (#5L1054) and by deeded protective covenants. All property owners in the
subdivision are members of the Farm Hill Road Owners Association. Appellants also
own property in the Farm Hill Road Subdivision.
The DRB held a warned public hearing on Appellee’s conditional use application
on December 9, 2004. Several adjacent property owners either attended the hearing or
submitted written comments, expressing concerns regarding the application. The
concerns related to “setting a precedent” for other home businesses; increased traffic on
the subdivision’s privately maintained road; and to potential violations of the
covenants, Act 250 permit conditions, and wastewater permitting requirements.
At the December 9th hearing, Appellee‐Applicants agreed that any conditional P P
use permit issued could be limited to the term of their ownership of the subject
property.
At the December 9th hearing, the DRB Chair noted that the Act 250 permit and P P
the protective covenants were not within the DRB’s jurisdiction; he advised that there
were separate avenues of review and enforcement for the Act 250 permit and the
protective covenants. A motion was then made to approve the conditional use permit
application with the condition that the permit would be limited to the applicants only
and that it would expire upon their sale of the property. The motion to approve was
seconded, voted on, and passed unanimously.
The conditional use permit application was approved by a written decision the
DRB issued on December 17, 2004. Appellants filed a timely appeal with the DRB on
January 14, 2005, and the DRB forwarded the notice of appeal to this Court, pursuant to
V.R.E.C.P. 5(b)(1).
Page 2 of 7. Appellants originally submitted sixteen questions for review by this Court.
Many of those questions related to matters outside the jurisdiction of the DRB, and of
this Court, including issues regarding Appellee‐Applicants’ compliance with some of
the Act 250 permit conditions and the protective covenants contained in the parties’
deeds. Appellee‐Applicants filed a motion to dismiss Appellants’ entire Statement of
Questions, arguing lack of subject matter jurisdiction pursuant to V.R.C.P. 12(b)(1) and
failure to state a claim upon which relief can be granted pursuant to V.R.C.P. 12(b)(6).
Appellee‐Applicant further asserted that Questions 1–3, 7, 9, 11–14, and 16 had not been
raised before the DRB and therefore cannot be raised for the first time here.
Appellants responded with a combined opposition to the motion to dismiss and
their own cross‐motion for summary judgment, supported by a memorandum and a
supplemental affidavit from Appellants’ attorney, Ellen M. O’Toole. Several
attachments accompanied the supplemental affidavit, including a document entitled
“Essential Question(s) for Environmental Commission, District Five.” Despite its title,
the “essential question(s)” are in fact addressed to this Court, which is referred to in the
document as “the Environmental Court of the District Five Commission.” Appellants
described the “essential question(s)” document that was attached to their memorandum
in opposition to the motion to dismiss as a “‘distillation’ of relevant issues” “for the
Court’s convenience.”
It appears that Appellants intended that this Court disregard their previous
Statement of sixteen questions and instead consider only the “revised” or “simplified”
question, as evidenced by language in their opposition memorandum which states that
“Appellants simply ask that this Court focus solely on the revised question(s) for
consideration,” and “consider only the simplified amended question.” Since the
Appellants’ request reduces, and does not add to, the issues raised in their earlier
submission, substituting the “distillation” for the earlier submission works no
Page 3 of 7. inconvenience on the opposing party or this Court. We therefore treat the “essential
question(s)” document as an amended Statement of Questions, and hereinafter refer to
it as such. The text of Appellants’ amended Statement of Questions reads as follows:
Are Act 250 and Wastewater permitting pre‐approval requirements from the State authorities violated by the undisclosed erection of a substantial structure used for business purposes in a residential development, regardless of whether the municipality’s zoning board approved a conditional use permit, and particularly when there is evidence that additional Wastewater permitting requirements may have been ignored? The Homeowners association, in this case the Farm Hill Road Homeowners association of Morrisville, Vermont, has incorporated, by reference in their Covenants, specific requirements to be in compliance with all State permitting requirements, including Act 250 and Wastewater permitting. Therefore, is the erection of a commercial structure a de facto violation of both the State’s regulations and the Covenant’s, which consequently, co‐exist and specifically incorporate by reference therein, within the purview of Act 250 and other State regulations? Are such violations enforceable by State authorities and the Environmental Court of the District Five Commission, on appeal or otherwise? If not, where does proper jurisdiction lie?
Discussion U
As an initial matter, the issues Appellants raise regarding alleged Act 250
violations have been rendered moot by the District 5 Environmental Coordinator’s
jurisdictional opinion dated November 17, 2005. In that jurisdictional opinion, the
Coordinator concluded that the “construction and present commercial use of the 24 x 24
structure do not constitute either [a] substantial or material change under Act 250.
Consequently, an amended land use permit is not required.”
Page 4 of 7. This jurisdictional opinion was apparently requested by Appellants’ attorney in a
letter dated December 17, 2004.2 As there has been no appeal of the November 17, 2005 TP PT
jurisdictional opinion, that opinion is a final determination that cannot be contested
directly or indirectly in this proceeding, pursuant to 24 V.S.A. § 4472(d). Therefore, that
part of Appellants’ amended statement of questions relating to potential Act 250
violations must be dismissed.
We note that even if there was no jurisdictional opinion disposing of this issue,
neither the DRB nor this Court has jurisdiction to entertain private enforcement actions
concerning allegations of Act 250 permit violations. Enforcement proceedings under
Act 250 may only be instituted by the Secretary of the Vermont Agency of Natural
Resources, either on the Secretary’s own initiative or upon a request by the Land Use
Panel of the Natural Resources Board. See 10 V.S.A. § 8004 (“In addition to the
enforcement of Chapter 151 of this title on the secretary’s initiative, the secretary shall
institute enforcement proceedings under Chapter 151 when requested by the land use
panel. The secretary and the land use panel shall develop procedures for the
cooperative enforcement of Chapter 151 of this title.”).
The amended Statement of Questions also raises issues regarding alleged
violations of wastewater permitting regulations. Such issues are beyond the scope of
this appeal. Neither the DRB nor this Court has jurisdiction to enforce violations of
state wastewater permitting regulations. Enforcement proceedings under the
wastewater permitting statute, 10 V.S.A. § 1971 et seq., may only be instituted by the U U U U
Secretary of the Vermont Agency of Natural Resources, pursuant to 10 V.S.A.
§ 8003(a)(9), unless the Secretary has delegated that authority to the municipality
2 TP “Exhibit G” attached to Appellants’ cross‐motion for summary judgment. PT
Page 5 of 7. pursuant to 10 V.S.A. § 1976.3 There is no evidence that such a delegation has been TP PT
made to the Town here. Nor is there any evidence that Appellants here have petitioned
ANR, or that ANR has instituted an enforcement action against the Appellees here.
Therefore, that part of Appellants’ amended Statement of Questions relating to
potential wastewater permitting regulations violations must be dismissed.
Finally, although it is unclear whether they were preserved in the amended
Statement of Questions, Appellants raised issues regarding alleged violations of the
Farm Hill Road Housing Association’s protective covenants. To the extent that
Appellants claim violations of their deeded covenants, such claims are beyond the
jurisdiction of both the DRB and this Court. As we note below, the proper forum for
such claims would be the appropriate Superior Court. To the extent that Appellants
claim that the covenants were violated because the covenants require compliance with
Act 250, their claim appears moot, due to the jurisdictional opinion referenced above,
which concluded that Appellee‐Applicants’ construction and present use of the 24ʹ by
24ʹ structure does not constitute an Act 250 permit violation. Appellants’ claim
regarding potential violations of the Farm Hill Road Housing Association’s protective
covenants must therefore be dismissed.
We are not unsympathetic to Appellants’ perceived lack of recourse to enforce
violations of what they believe to be violations of state law and the protective
covenants. However, neither the DRB, nor this Court, has the jurisdiction to hear such
claims, whether they are stated in the form of a private enforcement action, a quiet title
3 Any person directly affected by a project permitted under the wastewater state may file a petition with TP PT
the Secretary for review and/or revocation of the permit, based upon an alleged violation of a permit condition. See In re Lyon, 2005 VT 63, ¶ 6 (“After a permit is granted, ANR may revoke it either in U U T
response to a petition or on its own motion. An applicant or any person directly affected by a permitted project may petition ANR for review and reconsideration.”) (internal quotation and citations to the Wastewater System and Potable Water Supply Rules omitted). Thus, the proper course of action for an T
aggrieved party, such as Appellants here, is to file a petition with ANR; not to file an appeal with this Court.
Page 6 of 7. action, or a breach of warranty action. The trial court with exclusive authority to hear
claims regarding private covenants is the appropriate Superior Court. Whether or not
one believes it wise, our Legislature has determined that this Court not be vested with
jurisdiction over such claims. We are a court of limited jurisdiction. 4 V.S.A. § 1001(b).
We cannot exceed those jurisdictional limitations.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellee‐Applicants’ Motion to Dismiss is GRANTED as to all issues raised by
Appellants’ Amended Statement of Questions, thereby warranting dismissal of this
appeal. The DRB’s decision dated December 17, 2004, granting conditional use
approval to Appellee‐Applicants Mitchell and Elaine Diamond for a home business
located at 374 Farm Hill Road, is upheld. This decision concludes the pending appeal.
Done at Berlin, Vermont, this 26th day of May, 2006. P P
__________________________________________ Thomas S. Durkin, Environmental Judge
Page 7 of 7.