Appeal of Deptula

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Appeal of } Edward Deptula } Docket No. 9-1-00 Vtec } }

Decision and Order on Motion to Dismiss Town as Party

Appellant Edward Deptula appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Montgomery granting a permit to Appellee-Applicant Joseph Nastasi to operate a machine shop. Appellant represents himself; Appellee- Applicant also represents himself; the Town of Montgomery is represented by Amanda S.E. Lafferty, Esq. Appellant has moved to dismiss the Town as a party. Appellant argues that the Town has no standing to participate as an interested party, because neither the town plan nor a town ordinance is "at issue" in this case, citing Sabourin v. Town of Essex, 146 Vt. 419, 420-21 (1985) and Rossetti v. Chittenden County Transportation Authority, 165 Vt. 61, 66 (1990). In those decisions, the Vermont Supreme Court ruled that a town may not bring an appeal challenging the wisdom of a zoning decision. However, a town may appeal (and may participate in an appeal brought by another) if there is a claim that the ZBA Aexceeded its authority or misconstrued a bylaw provision.@ Rossetti v. Chittenden County Transportation Authority, 165 Vt. 61, 66 (1990). The Court stated that A[w]ithout such a claim, we do not believe the bylaw was Aat issue@ as that term is used in 24 V.S.A. '4464(b)(2).@ With such a claim, therefore, a bylaw is Aat issue@ to give the Town standing as an interested person. In the present case, Appellant claims that the ZBA misconstrued the bylaw=s provisions defining Ahome occupation@ and Alight industry,@ and requests damages and court costs. These claims give the Town standing to participate as a party in the appeal. Accordingly, based on the foregoing, Appellant=s Motion to Dismiss the Town as an Interested Party is DENIED. We will hold a conference BY TELEPHONE in this matter on

1 June 15, 2000 to discuss scheduling this appeal for a hearing.

Done at Barre, Vermont, this 22nd day of May, 2000.

_________________________________________________ Merideth Wright Environmental Judge