                                      State of Vermont
                           Superior Court - Environmental Division

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                   ENTRY REGARDING MOTION
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In re Freimour & Menard CU Permit                                  Docket No. 59-4-11 Vtec
(Municipal CU Permit Appeal)

Title: Motion in Limine (Filing No. 6)
Filed: October 12, 2012
Filed By: Appellants Allen and Doreen Pigeon
Response in Opposition filed on November 30, 2012 by Applicants Sharon Menard and Leon
Freimour
Reply filed on December 3, 2012 by Appellant Allen and Doreen Pigeon


___ Granted                    X Denied                     ___ Other

       This matter concerns an appeal by Appellants, Doreen and Allen Pigeon, of the Town of
Swanton’s Zoning Board of Adjustment’s (“ZBA”) decision granting Applicants, Sharon
Menard and Leon Freimour, a conditional use permit to convert their seasonal home into a
year-round residence. Appellants also commenced a parallel case in the Franklin Superior
Court – Civil Division. Currently pending before this Court, is Appellants’ motion in limine
requesting that: (a) the Court take judicial notice of the Franklin Superior Court’s decision and
order on Appellant’s motion for contempt and (b) preclude testimony and evidence concerning
ownership of the portion of land where Applicants constructed their new driveway and
ownership of Yandow Road.
         Applicants have an obligation to make a threshold showing that they have the authority
to use land as proposed in an application. In re Freimour & Menard CU Permit, No. 59-4-11
Vtec, slip op. at 8–9 (Vt. Super. Ct. – Env. Div., June 6, 2012)(Durkin, J.). Such a showing does
not preclude an opponent to the project from contesting such ownership in a Civil Division
proceeding. The Environmental Division is not empowered to adjudicate property ownership
and use disputes; our authority in this case is to determine conformance with the applicable
land use ordinance. Accordingly, the Court will allow evidence at the merits hearing that will
assist in it’s determination of whether Applicants have made a sufficient threshold showing that
they have the right to use the land as proposed.




___________________________________________                          December 10, 2012
       Thomas S. Durkin, Judge                                            Date
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In re Freimour and Menard Cu Permit, No. 59-4-11 Vtec (E.O. on Mot. in Limine) (Dec. 10, 2012)   Pg. 2 of 2.


Date copies sent to: ____________                          Clerk's Initials _______
Copies sent to:
  Attorney Pietro J. Lynn for Appellant Allen Pigeon
  Attorney Pietro J. Lynn for Appellant Doreen Pigeon
  For Informational Purposes Only Michael J. Gannon Esq.
  Co-Counsel for Appellant Sean M. Toohey
  Attorney Jesse D. Bugbee for Interested Person Town of Swanton
  For Informational Purposes Only Michael S. Gawne Esq.
  Appellee Sharon Menard
  Appellee Leon Freimour
