Appeal of Mitchell

• Court: Vermont Superior Court
• Decided: June 3, 2005
• Docket: 203-11-04 Vtec
• Status: Published

Opinion

' STATE OF VERMONT ' ' ENVIRONMENTAL COURT ' } 'Appeal of Mitchell } Docket No. 203-11-04 Vtec } ' ' Decision and Order on Motion to Intervene, ' Motion for Summary Judgment, and Motions to Dismiss ' Appellant Steven Mitchell, Sr., appealed from decisions of the Zoning Board of

Adjustment (ZBA) and Planning Commission of the Town of Lyndonville, dated October

22, 2004, approving Appellee-Applicant Pauline Harris' site plan and conditional use

applications to move her plumbing business' office from 84 Pleasant Street across the

street to the north side of the street at 83 Pleasant Street, and to replace an existing

14' 'x 72' residential mobile home and shed with a new 22' x '80' building to house the

business at the new address, in the Commercial zoning district. Appellant appeared and

represents himself; Appellee-Applicant appeared and represents herself; and the Town is

represented by Robert A. Gensburg, Esq.

Town's Motion to Intervene and Appellant's Motion to Dismiss Town as a Party Appellant's notice of appeal, filed with the Court in the form of his Motion for

Summary Judgment, is dated November 9, 2004. Nothing in the file shows whether

Appellant mailed a copy of his notice of appeal by certified mail to the municipal clerk or

administrative officer as required by 24 V.S.A. '4471(c), although Appellant did mail his

notice of appeal to Appellee by certified mail on November 30, 2004. On January 7,

2005, the Town moved to intervene as an interested party, claiming party status under 24

V.S.A. '4465(b)(2).'[1] Appellant has moved to dismiss the Town as a party, arguing that

its appearance was not timely filed.

As may be more clearly seen in the Vermont Rules for Environmental Court

Proceedings, the statute provides for interested parties to intervene as of right within the

twenty-day period after receipt of the notice of appeal. 24 V.S.A. '4471(c) and see

V.R.E.C.P. 5(c). Beyond that time period they must move to intervene; the Court will

generally allow intervention if no party is prejudiced by the intervention and it does not

delay the proceedings. In re Appeals of Garen, 174 Vt. 151, 153-55 (2002); VR.C.P.

24(a)(1).

In the present case, even if we assume that the Town received the required notice

by certified mail on or about November 30, and therefore was beyond the twenty-day

period for intervention as of right, the Town has moved to intervene early in the

proceedings, no hearing on the merits has yet been scheduled, and no prejudice will result to either of the other parties from allowing the Town to participate. Therefore, the Town's

motion to intervene is GRANTED, and Appellant's motion to dismiss the Town as a party

is DENIED.

Appellant='s Motion for Summary Judgment

Appellant has moved for summary judgment, arguing that the Zoning Bylaws

preclude the expansion of non-conforming uses in the Commercial zoning district, '5.3.

Section 5.5 also precludes the expansion of non-complying structures that would increase

their non-compliance. '5.5. Appellant argues that Appellee-Applicant's proposal would

increase the non-compliance of the building with the rear setback and would expand a

non-conforming use.

We must read all sections of the Zoning Bylaws together to make sense of each

provision, if possible. If no other section were also applicable, at least '5.5 would prohibit

the proposed construction, as the new building is proposed to occupy a larger volume of

the rear setback than the previous structure occupied. See, e.g., Appeal of Tucker,

Docket No. 123-7-98 Vtec (Vt. Envtl. Ct., July 29, 1999), aff'd', Appeal of Tucker, Docket

No. 99-399 (Vt. Sup. Ct., Mar. 10, 2000)(three-justice panel); In re Letourneau, 168 Vt.

539 (1998); Appeal of DiVincenzo and Sineni, Docket No. 214-11-04 Vtec (Vt. Envtl. Ct.,

May 6, 2005). However, the Zoning Bylaws also contain a more specific provision applicable to new construction that is proposed to be located in, and therefore to violate,

the setbacks or to violate the lot coverage requirements. Under '4.4.3, the ZBA has

authority to consider a proposal that does not comply with the setbacks or lot coverage

requirements as a conditional use, and to grant conditional use approval if it meets the

conditional use standards and the specific requirements of '4.4.3. This is what the ZBA

has done in the present case. Accordingly, Appellant's Motion for Summary Judgment

must be DENIED, and Summary Judgment must be GRANTED to Appellee-Applicant and

to the Town on this point.

It appears from a careful reading of Appellant's Motion for Summary Judgment,

which was also treated as containing his statement of questions, that no issues remain in

this appeal. Therefore, this appeal may be concluded based on today's ruling on

Appellant='s Motion for Summary Judgment.

Motion to Dismiss Appellant as a Party

Both Appellee and the Town have also moved to dismiss Appellant as a party,

arguing that he has not shown and will not be able to demonstrate the necessary

"physical or environmental impact" on his interest under the applicable criteria, as required

by 24 V.S.A. '4465(b)(3). Appellant owns property on the north side of Pleasant Street,

apparently in the immediate neighborhood of the parcel at issue in the present appeal. Appellant participated at both the Planning Commission and ZBA hearings on Appellee's

application. However, 24 V.S.A. '4465(b)(3) as amended effective July 1, 2004, also

requires an appellant to "demonstrate a physical or environmental impact on the person's

interest under the criteria reviewed."

Even in response to the motions to dismiss him as a party, and consequently to

dismiss the appeal, Appellant has not demonstrated that Appellee-Applicant's proposal will

have any physical or environmental impact on him or his property, whether under the

criteria for site plan approval, '9.1.5; under the criteria for conditional use approval,

'4.2.2 et seq. and ' 5.3; or under the '4.4.3 criteria for approval of construction in a

setback or in excess of the lot coverage requirements.

Accordingly, Appellee='s and the Town's motions to dismiss Appellant as a party,

and hence to dismiss the appeal, must also be GRANTED.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that:

(1) the Town's motion to intervene is GRANTED and Appellant's motion to

dismiss the Town is DENIED.

(2) Appellant='s Motion for Summary Judgment is DENIED and Summary

Judgment is instead GRANTED to Appellee-Applicant and to the Town, that ''5.3 and 5.5 do not prohibit the proposed construction if the project receives approval from the ZBA

under '4.4.3. This ruling concludes the appeal on its merits.

(3) Appellee='s and the Town's motions to dismiss Appellant as a party (and

hence to dismiss the appeal) are also GRANTED.

' Done at Berlin, Vermont, this 3rd day of June, 2005. ' ' ' _________________________________________________ Merideth Wright Environmental Judge

'[1] As Appellant's Statement of Questions claims that the ZBA "misconstrued a bylaw provision," the Town has standing to participate because its bylaws are 'at issue.' See Rossetti v. Chittenden County Transp. Auth., 165 Vt. 61, 66 (1996).