                                        STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             In re: Appeal of Robert and            }
             Angela Conrad                          }
                                                    }   Docket No. 52-3-00 Vtec
                                                    }
                                                    }




                  Decision and Order on Cross-Motions for Summary Judgment

Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Derby, denying their appeal to the ZBA of various actions of the Zoning Administrator relating to
neighboring property owned by Appellees Traci McDowell (Webster) and Michael Webster.
Appellants are represented by Duncan Frey Kilmartin, Esq.; Appellees are represented by Keith
Aten, Esq. and Kate Strickland, Esq. The Town is represented by William Boyd Davies, Esq., but
has not participated in the briefing of these motions.

Appellees have moved for A summary affirmance@ of the decision of the ZBA, asserting that
Appellants= appeal to the ZBA was not timely and, in the alternative, that the undisputed facts
warrant affirmance. Appellants have moved for partial summary judgment on four specific issues
which they characterize as A core issues:@ I) whether a certificate of occupancy requires
compliance both with the permit and with the zoning bylaws; II) whether the uses on the property
are prohibited in this zoning district, so that the property fails to qualify for a certificate of
occupancy; III) whether a certificate of occupancy was required for the residential use; and IV)
whether Appellants= appeal of the Zoning Administrator= s failure to require a certificate of
occupancy for the residential use was timely.

                                    1
The following facts are undisputed unless otherwise noted. Appellees own an approximately
twenty-acre parcel of land off Town Highway #20 (Quarry Road), a portion of which is in the Rural
Residential zoning district and a portion in the Industrial zoning district. The property has frontage
on Quarry Road in the Rural Residential zoning district and on Quarry Road and on Town
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Highway 28 in the Industrial zoning district . The buildings and uses which are the subject of this
appeal have been proposed for or established on the portion of the property lying in the Rural
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Residential zoning district . The property appears to have contained an existing barn and outdoor
arena/paddock.

Appellees purchased their property in February 1998. On May 13, 1998, Appellee Traci McDowell
applied for a zoning permit (No. 98-77) as a conditional use for a A horse stable - Indoor/Outdoor
Recreation.@ The application showed that the barn was served by water but had no septic
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system. The application form requires a sketch plan/site plan and narrative to be submitted. The
layout plan and narrative that appear to have been presented with this application show on the
layout plan proposed mobile home location 14' x 70' in size and a proposed arena 55' x 100' in
size. The narrative discloses that the proposed arena is A an indoor arena at least 55' x 100' but
not more than 72' x 120' to provide riding services year round.@ The narrative also states that
Appellees A have a permit to build a 24' x 32' foundation on the property to live in,@ but that
foundation does not appear on the layout plan and no party has mentioned any earlier permit
number in connection with the summary judgment motions. The warning for the public hearing
stated that the A proposal is to utilize the property as a horse stable providing such services as
boarding, training, lessons, shows, clinics and trail rides. In addition to utilizing the existing barn
and arena facilities, the applicant proposes to illuminate the outdoor area and construct a 55' x
100' arena.@

The ZBA held a hearing on this application on June 10, 1998, which Appellant Robert Conrad
attended. As reflected in the hearing minutes, Appellees proposed a > riding stable and horse
show facility= to be used in the summer only. The renovation of the existing barn was proposed
to hold sixteen to twenty stalls, the paddock was proposed to have outdoor lighting for evening
use, and the applicant proposed to hold two horse shows each summer. The hearing was
continued to June 24, 1998. There was no mention in the minutes of an indoor or covered arena,
and it is unclear from the materials before the Court whether the > summer only= reference
represented a change in the application.

Meanwhile, on June 22, 1998, Appellee Traci McDowell applied for a zoning permit (No. 98-107)
on which the > type of use= checked was A One/Two Family Residential Bldgs-Uses.@ The >
proposed use or construction= was filled in as: A conversion of porp.[sic] of barn to living
quarters. The application was accompanied by brief handwritten narrative and a sketch plan. The
narrative described the project as a A three-bedroom apartment in the hayloft part of the older
barn.@ The sketch plan also showed a proposed 12' x 20' shed to be added to the barn, showed
the proposed apartment, and showed the existing office.

The Zoning Administrator treated the application as one for a single-family dwelling, despite the
fact that it proposed a dwelling unit to occupy the upper floor of the barn, despite the fact that it
proposed an addition to the barn for the not-yet-approved conditional use, and despite the fact
that the conditional use application for the use of the barn was then pending before the ZBA. He
issued zoning Permit No. 98-107 the same day, June 22, 1998, authorizing A Single family
dwelling- conversion of portion of existing barn to living quarters with outside stairway and
addition to barn of 12' x 20'.@ He seems to have treated the application to convert a portion of
the barn to dwelling space as the equivalent of the free-standing trailer foundation that already
may have been approved for elsewhere on the lot. Permit No. 98-107 did not address ' 403.1(B)
precluding more than one principal use per lot unless the minimum area and setbacks for the
uses in separate buildings meet the requirements as if they were on separate lots. However, no
party appealed the Zoning Administrator= s decision to issue zoning Permit No. 98-107, and it
became final.

The continuation of the ZBA hearing on Permit No. 98-77 took place on June 24, 1998. The ZBA
issued its findings of fact and decision on the conditional use approval on August 5, 1998, signed
only by its chairwoman. The Zoning Administrator issued zoning Permit No. 98-77 on August 7,
1998, for A Conditional use - indoor and outdoor recreation: horse stable, shows, clinics, and
lessons.@ He attached the findings of the ZBA and referenced the eight conditions imposed by
the ZBA in its decision. No party appealed the ZBA decision granting conditional use approval,
nor did any party appeal the issuance of the zoning permit based on that conditional use
approval, and those actions became final.

Just over a year later, on August 18 and 19, 1999, Appellants= attorney wrote two letters to the
Zoning Administrator regarding Appellees= property. The August 18 letter requested all
Certificates of Occupancy, applications for Certificates of Occupancy, or refusals to issue a
Certificate of Occupancy related to Permit No. 98-77. The letter also alleged violations of Permit
No. 98-77, stated reasons why the property was not eligible for a Certificate of Occupancy, and
why certain of Appellees= uses of the property were prohibited, and requested a response from
the Zoning Administrator as to what actions he proposed to take in response to the letter. The
August 19 letter requested all applications for Certificates of Occupancy and supporting materials,
Certificates of Occupancy, or reasons why a Certificate of Occupancy was not issued, related to
Permit No. 98-107. The letter also stated reasons why the property required a Certificate of
Occupancy, why it was not eligible for a Certificate of Occupancy, and requested that the permit
be voided due to misrepresentation on the application. The letter requested that the Zoning
Administrator send copies of any notices of violation or any enforcement action, or that the
Zoning Administrator inform Attorney Kilmartin if he declines to take such action, to allow
Appellants to appeal.

The Zoning Administrator responded to Attorney Kilmartin by two separate letters dated
September 3, 1999, each with a copy to Appellee Traci McDowell Webster and her attorney. The
letter regarding Permit No. 98-77 stated the Zoning Administrator= s determination that a
Certificate of Occupancy was required and stated that he would keep Appellants= counsel
informed of the progress of his A investigation and decision regarding the Certificate of
Occupancy in a timely fashion to allow appeals as appropriate or necessary.@ The Zoning
Administrator did not further respond to Appellants= requests that he take enforcement action
against Appellees for operating an animal grooming/boarding facility. The fact that Appellants did
not appeal this letter to the ZBA has no preclusive effect; Appellants reasonably relied on that
language to provide a further determination of the Zoning Administrator which would be
appealable.

The Zoning Administrator= s letter regarding Permit No. 98-107 stated his determination that a
Certificate of Occupancy was not required under the ' 903.1(A) exemption for a single family
dwelling, and that the application for the apartment in the barn had not been misleading. That
letter enclosed forms and information A concerning appeals of my decisions if you choose to
proceed in that fashion.@ Appellants did not appeal to the ZBA the Zoning Administrator= s
September 3, 1999 letter regarding Permit No. 98-107.

On October 12, 1999, Appellee Traci McDowell-Webster applied for a Certificate of Occupancy
for A Horse Stable, Indoor/Outdoor Recreation permit #98-77.@ The application for the
Certificate of Occupancy was given Application No. 99-166. After visiting the site, the Zoning
Administrator issued the Certificate of Occupancy as Permit No. 99-166 on October 15, 1999.

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On October 27, 1999, Appellants filed with the ZBA a notice of appeal of the Zoning
Administrator= s actions. The actions attempted to be appealed by this notice of appeal may best
be understood by grouping them as follows:

1) The Zoning Administrator= s October 15, 1999 issuance of Certificate of Occupancy No. 99-
166.

2) The Zoning Administrator= s September 3, 1999 letter declining to take action to require a
Certificate of Occupancy for the apartment in the barn under Permit No. 98-107, and declining to
take enforcement action regarding alleged misrepresentations made in support of Application 98-
107 rendering that permit void or voidable.

3) The Zoning Administrator= s failure to take enforcement action for the following asserted
violations: operation of an impermissible ' 1103 animal grooming and boarding facility; failure to
require a permit for the animal grooming and boarding facility; land development in violation of the
permit and bylaws; operation of a residential business or service in violation of ' ' 206.1 and
206.5; occupancy and use of the property for a horse stable without a Certificate of Occupancy;
impermissible use of the barn for both human and animal occupancy and habitation; lack of a
conditional use permit for residential business or service; violation of ' 403.1(B) for more than one
principal use per lot; and alleged misrepresentations made in support of Application 98-77,
rendering that permit void or voidable.

In their October 27, 1999 Notice of Appeal to the ZBA, Appellants requested that the ZBA require
the Zoning Administrator to commence enforcement action; that the ZBA vacate Certificate of
Occupancy No. 99-166 and prohibit the Zoning Administrator from issuing any more Certificates
of Occupancy with regard to this property; that the ZBA bar Appellees from any occupancy or use
of the property; and that the ZBA declare both Permit No. 98-107 and Permit No. 98-77 to be
void.

As described in the ZBA= s February 1, 2000 decision, the ZBA instead characterized the appeal
as having been taken from the following four events or actions of the Zoning Administrator: the
June 22, 1998 issuance of Permit No. 98-107 for the > single family dwelling= in the barn; the
August 7, 1998 issuance of Permit No. 98-77 for the horse stable as > indoor/outdoor recreation=
based on the ZBA= s grant of conditional use approval; the September 3, 1999 letter ruling that a
Certificate of Occupancy was not needed for the > single family dwelling= in the barn; and the
October 15, 1999 issuance of Certificate of Occupancy No. 99-166, based on Permit No. 98-77
for the horse stable uses. The ZBA denied the first three appeals as untimely, and upheld the
Zoning Administrator= s issuance of Certificate of Occupancy No. 99-166 without addressing its
merits, apparently because the underlying Permit No. 98-77 was upheld.

The Conditional Use approval of the Appellees= application for a A Horse Stable, Indoor/Outdoor
Recreation@ and Permit No. 98-77 based on that approval, were not appealed and became final.
That permit may not now be challenged, either directly or indirectly, even if it was not lawfully
issued. 24 V.S.A. ' 4472; Levy v. Town of St. Albans Zoning Bd. of Adjustment,152 Vt. 139, 142
(1989). However, even though the permit may not now be challenged, it may be enforced
according to its terms and conditions and the terms or scope of Appellees= application. Town of
Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288 (1981). Appellants are entitled
to request the Zoning Administrator to enforce the terms of that permit, and to challenge the
Zoning Administrator= s ruling before the ZBA or this Court.

In the present case, it is true that Appellants= requests for enforcement were embedded in a
larger document in which Appellants also sought to challenge the permit and the certificates of
occupancy, but that fact does not justify the Zoning Administrator= s lack of response to the
                            6
requests for enforcement , which would have allowed Appellants to have raised the enforcement
issues in a more focused way to the ZBA and then, if necessary, to this Court. The ZBA did not
address the enforcement requests at all. Accordingly, we must determine whether to remand
these issues for the ZBA to consider and rule on, before addressing them in this Court. In
general, it is the better practice for the ZBA to have ruled in the first instance on the issues which
divide the parties; the Court sits in an appellate function even when it hears the evidence de
novo. In re Maple Tree Place,156 Vt. 494, 500 (1991). As the parties did not address the issue of
remand in their memoranda, we will hold a telephone conference to discuss whether to remand
the enforcement issues and, if so, how to frame or define those issues so that the ZBA has a
clear understanding of the issues on which Appellants have requested a ruling.

Permit No. 98-107 for the dwelling unit in the barn also was not appealed and became final. That
permit also may not now be challenged, either directly or indirectly, even if it was not lawfully
issued. Moreover, the Zoning Administrator= s September 3, 1999 determinations that no
Certificate of Occupancy was required for the occupancy of the dwelling unit and that no
misrepresentations had been made in the permit application, also became final and cannot now
be appealed. Accordingly, even if Appellants are correct in their interpretation of ' 903.1.B that
conversion of a barn to a dwelling unit required a certificate of occupancy, that question is not
before the Court because it was not timely appealed to the ZBA. Appellants= Motion for Summary
Judgment on > core issue III= and > core issue IV= is DENIED and summary judgment is entered
on those issues in favor of Appellees.

The appeal of the Certificate of Occupancy for the > Horse Stable= use is properly before the
Court. Under the particular language of the Derby Zoning Bylaws, ' ' 903.3 and 903.5, two
independent criteria must be applied before a certificate of occupancy can be issued by the
Zoning Administrator: that the use or occupancy is in conformance both with the permit and with
the Zoning Bylaws. Accordingly, Summary Judgment is GRANTED to Appellants on the legal
issue stated as > core issue I.= However, material facts are in dispute as to exactly the activities
or functions carried out or intended to be carried out on the property by Appellees, whether
anything in the application was misleading as to those activities or functions. Further, until the
ZBA rules on the enforcement questions relating to Permit No. 98-77, we cannot know whether
the scope of that permit imposes any limits on Appellees of the activities or functions now carried
out on the property. Appellants= Motion for Summary Judgment on > core issue II= is therefore
DENIED because material facts are in dispute.

Accordingly, based on the foregoing, Appellees= Motion for Summary Judgment is GRANTED as
to the finality of Permit No. 98-77 and 98-107, and as to the finality of the Zoning Administrator= s
September 3, 1999 ruling that the residential use of the barn did not require a certificate of
occupancy and that there had been no misrepresentation in the application for Permit No. 98-107.
Summary Judgment is GRANTED to Appellants on the legal issue stated as > core issue I.=
Appellants= Motion for Summary Judgment on > core issue II= is DENIED due to material facts in
dispute. Appellants= Motion for Summary Judgment on > core issue III= and > core issue IV= is
DENIED and summary judgment is entered on those issues in favor of Appellees. HOWEVER,
Appellees= Motion for Summary Affirmance is also DENIED, in that many of Appellants=
remaining issues were not foreclosed by the finality of those documents, and should have been
addressed by the ZBA. Because the ZBA failed to address those issues, the proper remedy
appears to be for the Court to remand those remaining issues to the ZBA for its action; we will
discuss with the parties whether to remand the enforcement issues and, if so, how to frame or
define those issues so that the ZBA has a clear understanding of the issues on which Appellants
have requested a ruling. The telephone conference will be held on this Friday, March 30, 2001 at
2 p.m., to accommodate Attorney Kilmartin= s legislative schedule, as he and Attorney Davies
are already scheduled at 1:30 that day on another telephone conference. If the parties prefer,
they may discuss the scheduling among themselves and may reschedule the conference for the
afternoon of April 6, 2001.

                                th
Done at Barre, Vermont, this 26 day of March, 2001.




___________________
Merideth Wright
Environmental Judge




                                            Footnotes

1.
     A number of documents were not provided with the motions for summary judgment but were
provided as attachments to Appellants’ notice of appeal to this Court, do not appear to be
disputed, and will be noted as from that source.

2.
     As shown on Layout Plan (Notice of Appeal attachments).

3.
     As shown on Layout Plan (Notice of Appeal attachments).

4.
     Notice of Appeal attachments.
5.
     Notice of Appeal attachments.

6.
    We note that if Appellants wish to bring a mandamus action to require the Zoning
Administrator to take enforcement action, they must do so in Superior Court. The Environmental
Court has jurisdiction of mandamus actions only to the extent that they are brought to enforce an
order of a Zoning Board of Adjustment or Development Review Board under 24 V.S.A. §4470(c).
