                                 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




                                           2
