Marsh Zoning Permit

Citation: Not availableDocket: 135-7-08 Vtec

Court: Vermont Superior Court; March 17, 2009; Vermont; State Appellate Court

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Appellants William and Roberta Efthim, James and Dorothy Field, Burton and Margaret McGillivray, William and Lisa Pezzoni, and Louis and Rosemarie Scibetta appealed the Zoning Board of Adjustment's (ZBA) decision to deny their challenge against the issuance of a zoning permit to Blanche Marsh for a property in the Quechee Lakes Planned Development. The Town has moved to dismiss several questions raised by the appellants regarding the Quechee Declaration of Covenants and the Quechee Lakes Master Plan. The appellants are represented by Steven R. Saunders, Esq., while Marsh is represented by Elizabeth K. Rattigan, Esq., and the Town by William F. Ellis, Esq.

In 1971, Marsh acquired a Farmstead parcel that included a 5.67-acre lot and a 1-acre lot, both of which received municipal and Act 250 approval. The Quechee Lakes Master Plan defines a Farmstead parcel as a single-family parcel of at least 4 acres, with specific definitions for guest houses. A 1984 Planning Commission approval resubdivided Marsh’s Farmstead into two lots, each approximately 3.3 acres, which cannot now be contested. By 1984, Lot A had an existing single-family dwelling and a detached garage with an upper guest dwelling unit, both receiving zoning permits. The current application seeks to build a single-family residence on the undeveloped Lot B.

The appellants contend that the Quechee Lakes Master Plan and Covenants limit the total number of dwelling units on a two-lot Farmstead to two, arguing that the existing residences on Lot A should count against this limit, thereby preventing additional construction on Lot B. They assert that the resubdivision does not permit a guest house and a single-family house on each of the two parcels.

The Environmental Court can consider provisions in deeds and private covenants only if they pertain to matters within its jurisdiction, such as assessing if a right-of-way complies with local zoning or subdivision ordinances. In municipal appeals, the Court's jurisdiction is limited to evaluating whether proposals align with these ordinances and relevant permits, not resolving property disputes. In this case, while the proposal's compliance with the Quechee Lakes Master Plan is relevant to its zoning permit eligibility, conflicts with deed restrictions or covenants are outside the Court's jurisdiction since they were not part of the municipal approval process. Consequently, Questions 2 and 7 of the Revised Statement of Questions and related portions of Questions 1 and 4 must be dismissed. The Town's argument that Questions 4 and 5 seek an impermissible advisory opinion is rejected; these questions pertain to how the classification of a guest house on Lot A impacts the proposed dwelling on Lot B, which is within the Court's jurisdiction. Thus, the remaining parts of Questions 4 and 5 will not be dismissed. Questions 3 and 6 also remain relevant, as they address whether newly created lots from a Farmstead parcel comply with specific provisions of the Quechee Lakes Master Plan. Ultimately, the Court's role is to determine if the new house on Lot B conforms to the zoning ordinance and municipal approvals, while conflicts with the Quechee Lakes Covenants are subject to superior court jurisdiction.

The court has granted the Motions to Dismiss in part and denied them in other respects. The remaining questions for consideration are: Question 1 (excluding the portion after 'Quechee Lakes Master Plan'), Questions 3 and 6 (together, not contesting the 1984 resubdivision approval), Question 4 (excluding the last three words regarding the Quechee Covenants), and Question 5. Appellants are permitted to file a revised Statement of Questions with these remaining items but must retain their original numbering. The court believes that the unresolved questions are amenable to summary judgment, indicating they likely do not necessitate a trial. To transition from a motion to dismiss to a motion for summary judgment, compliance with V.R.C.P. 56 is required. The court notes that the parties have not submitted the Hartford Zoning Regulations or prior decisions from the ZBA or Planning Commission regarding the development. A telephone conference is scheduled to set deadlines for further motions and to discuss the timing of this appeal in relation to ongoing Superior Court litigation. The order was issued in Berlin, Vermont, on March 17, 2009, by Environmental Judge Merideth Wright.