                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

               In re: Appeal of David Siegel       }
                                                   }
                                                   } Docket No. 258-11-00 Vtec
                                                   }
                                                   }

                               Order on Motion to Dismiss as Moot

Appellant appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Duxbury upholding the enforcement action taken by the Zoning Administrator in a letter dated
July 24, 2000. Appellant represents himself; Appellees Patricia DiRuocco and Jean Ruth
Connolly are represented by Richard Darby, Esq. and Marc A. Weissman; the Town of Duxbury
is represented by Steven A. Reynes, Esq.

The Court issued a decision and order on a portion of the merits of this matter on November 9,
2001, concluding that the zoning setback of 70 feet, measured from the center of the traveled
way, did not apply to the location of Appellees= garage, as it was built adjacent to a segment of
Town Highway No. 30 that was classified as a legal trail. In the course of its several decisions in
this matter, the Court found that the right-of-way for Town Highway No. 30 was three rods (492
feet) in width. It appears from the surveyors= testimony in the first part of the case that the
garage is located in part within the right-of-way.

The Court ruled that the May 1995 permit for the garage became final without appeal and could
not be challenged in this appeal of the Zoning Administrator= s enforcement letter. The May
1995 permit for the garage contained a sketch and a statement that all setbacks are met. The
parties and the Court agreed to first hold a hearing on whether any zoning setbacks are
applicable, and to reserve for a later hearing issues relating to whether the garage was
constructed in the location shown on the plot plan sketch approved by the Zoning Administrator.
As no zoning setbacks are applicable, the Court need not reach issues relating to whether the
garage was constructed in the location approved by the permit stating > all setbacks are met.=

In the November 9, 2001 decision, the Court noted that,

even if no setback must be met, the right-of-way of the trail remains three rods wide. Today= s
ruling regarding the Zoning Ordinance does not resolve any dispute regarding the property rights
of the parties, including those of the Town, to the use of the right-of-way of the trail, or whether
Appellees= garage improperly encroaches on that right-of-way. Such a dispute may be within the
jurisdiction of the Superior Court, but is beyond the jurisdiction of Environmental Court.

All the questions raised in the statement of questions have been addressed by the existing orders
in this case. Appellant appears to believe that this Court can also address issues as to whether the
garage encroaches in the town highway right-of-way. However, those issues are not the subject
of the zoning ordinance and therefore do not come within the zoning enforcement powers of the
zoning administrator. If construction of the garage within the town highway right-of-way
infringes upon the Town= s rights to use that right-of-way, the public= s rights to use that right-
of-way, Appellant= s rights to use that right-of-way, or the rights to use that right-of-way of
purchasers of lots in Appellant= s subdivision, such rights are property rights not regulated by
zoning and therefore within the jurisdiction of Superior Court and not this Court.

Accordingly, the motion to dismiss the remainder of the appeal as moot is GRANTED.
However, this dismissal is without prejudice to Appellant= s pursuing the question of
construction within the right-of-way in any appropriate forum.

Done at Barre, Vermont, this 10th day of December, 2001.




___________________
Merideth Wright
Environmental Judge
