                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                           }
In re: Hitchcock 2-Lot Subdivision     1   }       Docket No. 218-11-09 Vtec
        (Appeal of Paynter, et al. )       }
                                           }

                         Decision and Order on Pending Motions

       Petitioners Bruce Paynter and Kevin Blow initially appealed, as members of a 24

V.S.A. § 4465(b)(4) appellant group (Appellant Group), from a decision of the Zoning

Board of Adjustment (ZBA) of the Town of Pittsford upholding the Zoning

Administrator’s grant of subdivision approval to Appellee-Applicant Allen Hitchcock.

Petitioners represent themselves.2 Appellee-Applicant Allen Hitchcock has entered an

appearance representing himself. The Town of Pittsford is represented by David R.

Cooper, Esq.

       The Appellant Group was dismissed as a party by entry order of this Court

issued on May 11, 2010. All that remains is whether Mr. Paynter or Mr. Blow, each of

whom has applied to intervene claiming party status as an individual under 24 V.S.A.

§ 4465(b)(3), qualifies for party status so as to continue this appeal as an individual

appellant. See In re Garen, 174 Vt. 151, 153–54 (2002) (allowing intervenors to continue

1   Applicant Hitchcock apparently has proposed to create two one-acre building lots
from the 498 acres of property he owns on both sides of Furnace Road, and to retain the
remainder of the property, making the proposed project a 3-lot subdivision. However,
this fact is not material to the present motions as the 1989 Zoning Regulations do not
distinguish among the number of lots in a proposed subdivision for the purposes of
subdivision approval. In addition, Mr. Paynter’s concern about the number of lots
created in the past five years, raised for the first time in his June 11 memorandum,
relates only to the potential for Act 250 jurisdiction and is beyond the scope of the
present municipal appeal.
2 The May 11, 2010 entry order cautioned Mr. Paynter that, as an individual who is not

a lawyer, he may represent himself but may not represent Mr. Blow.
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appeal after original appellants withdrew; issues were confined to those raised by

original appellants). In the May 11, 2010 entry order, the Court established a schedule

for any additional affidavits and memoranda on the remaining issues of Petitioners’

claims of individual party status. The facts stated in this decision are undisputed unless

otherwise noted.



       Under 10 V.S.A. § 8504(b)(1), a decision of the ZBA can be appealed to this Court

by an “interested person” who has “participated” in the ZBA proceedings below.

“Interested person” is defined in 24 V.S.A. § 4465(b) to include:

       (3) A person owning or occupying property in the immediate
       neighborhood of a property that is the subject of [the] decision or act [on
       appeal] . . . , who can demonstrate a physical or environmental impact on
       the person’s interest under the criteria reviewed, and who alleges that the
       decision or act, if confirmed, will not be in accord with the policies,
       purposes, or terms of the plan or bylaw of that municipality.

Id. § 4465(b)(3). Mr. Paynter and Mr. Blow must each qualify as an “interested person”

under this definition in order to continue this appeal as individual appellants; if neither

qualifies, the appeal must be dismissed.

       Mr. Paynter owns property on a different road from and at a higher elevation

than the Hitchcock property. With respect to Mr. Paynter’s claims of a “physical or

environmental impact on [his] interest,” his initial and additional memoranda claim

that his interest would potentially be affected by noise and possibly by lights from the

Hitchcock subdivision, due to the elevation and topography of the intervening land.

       Mr. Blow owns property to the south of the Hitchcock property. Along Furnace

Road, the Blow property is separated from the two proposed Hitchcock one-acre lots by

seven other small lots. To the rear of those seven small unrelated lots, the rear portions

of the Blow and Hitchcock properties adjoin each other along both sides of Furnace

Brook. With respect to Mr. Blow’s claims of a “physical or environmental impact on

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[his] interest,” his initial and additional memoranda claim that the Hitchcock

subdivision will increase traffic and noise, and will change the character of the

neighborhood from rural to suburban.

       However, the impact on a person’s interest required by § 4465(b)(3) must be an

impact “under the criteria reviewed.” 24 V.S.A. § 4465(b)(3) (emphasis added); In re

Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 6–7 (Vt. Envtl. Ct. Jan. 16,

2008) (Wright, J.).    All that is before the Court in the present appeal is the grant of

subdivision approval to Mr. Hitchcock by the Zoning Administrator, not any

application for conditional use approval to the ZBA or any application for site plan

approval or planned residential development approval to the Planning Commission.

Therefore, Petitioners must demonstrate an impact on their interest under the

regulations applicable to the subdivision proposal.

       The parties do not dispute that the 1989 Pittsford Zoning Regulations are

applicable to this case, and that Pittsford does not have subdivision regulations at the

present time.3       Under § 2.3 of the 1989 Zoning Regulations, it is the Zoning

Administrator who issues a zoning permit for “land development,” which is defined in

§ 1.8.19 to include “[t]he partition or division of a parcel of land into two (2) or more

contiguous parcels of land.”4 A Zoning Administrator is required to “administer the

bylaws literally” and does not have “the power to permit any development that is not

in conformance” with the Zoning Regulations.          24 V.S.A. § 4448(a);   1989 Zoning

Regulations § 2.1.

       Therefore, the only criteria in the 1989 Zoning Regulations that are available to

be applied by the Zoning Administrator under this regulatory framework are the lot

3
     See generally Town of Pittsford Zoning Regulations (1989), available at
http://pittsfordvermont.com/wp-content/uploads/2009/10/1989-Zoning-Regs.pdf.
4  See also 1989 Zoning Regulation § 2.6 (providing for the Zoning Administrator to
inspect subdivisions and to certify that the boundary markers have been placed in
accordance with the terms of the applicable subdivision permit).
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area and other dimensional requirements of the particular zoning district; the

prohibition against creating a noncomplying lot found in § 3.13 of the 1989 Zoning

Regulations; and the required frontage and access requirements of § 3.4 of the 1989

Zoning Regulations, which, in turn, reflect the statutory provision now codified at 24

V.S.A. § 4412(3). The “criteria reviewed” for the subdivision permit at issue in the

present appeal therefore do not include any issues as to noise, traffic, or character of the

area—which Petitioners cite as potentially affecting their respective interests—

regardless of whether such criteria might be applicable to any future proposal for the

Hitchcock property requiring conditional use approval, site plan approval, or planned

unit development approval.

       Under 24 V.S.A. § 4465(b)(3), Petitioners must each demonstrate a potential

physical or environmental impact on their respective interests “under the criteria

reviewed”; they have not done so. Therefore, Petitioners do not qualify for individual

party status under § 4465(b)(3), regardless of whether their respective properties are

considered to be in the neighborhood of the proposed project. See, e.g., In re UVM

Constr. & Landscape Permit, No. 169-8-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. Mar. 12,

2009) (“Appellant has failed to show a potential physical or environmental impact to

her interest under the criteria reviewed, and therefore she does not qualify as an

individual interested party under 24 V.S.A. § 4465(b)(3).”).

       Both Petitioners also argue that they are affected by the practice of allowing the

Zoning Administrator, rather than the Planning Commission, to rule on subdivision

approval. They argue that they are affected because the same practice could be applied

to them if they were to file a subdivision application. Of course, Mr. Paynter is free to

raise this issue in his appeal of his own subdivision application, Docket No. 217-11-09

Vtec, which he has done; however, neither Petitioner has standing to raise this policy

issue in the Hitchcock case. Absent any physical or environmental impact on their

interest under the criteria reviewed, which is required for individual standing under
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§ 4465(b)(3), the policy concerns that Petitioners wish to raise could only be raised by a

group of at least ten voters or property owners within the municipality who had filed a

prior petition with the DRB and otherwise qualify for standing under 24 V.S.A.

§ 4465(b)(4). See, e.g., In re Wood, No. 276-11-08 Vtec, slip op. at 3 (Vt. Envtl. Ct. Feb.

17, 2009) (Wright, J.) (“For persons with a policy concern such as that expressed by [the

petitioner], but without a ‘physical or environmental impact’ on their interest, the

statute allows an appeal only by a group of ten or more voters or real property owners

within the municipality, and requires a prior petition to the ZBA.” (citing 24 V.S.A. §

4465(b)(4)). In the present case, such a group has already been dismissed.



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

that both Mr. Paynter’s and Mr. Blow’s petitions to intervene as individual appellants

under 24 V.S.A. § 4465(b)(3) are DENIED, and the Town’s Motion to Dismiss this appeal

with prejudice is therefore GRANTED.



      Done at Berlin, Vermont, this 18th day of June, 2010.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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