                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT


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Appeal of Barrett                         }       Docket No. 199-11-03 Vtec
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             Decision and Order on Town=s Motion for Summary Judgment
       Appellant Elizabeth Barrett appealed from a decision of the Development Review
Board (DRB) of the Town of Stowe, denying an appeal filed by Leslie A. Burnham
regarding a permit issued to Gerald McDermott.          Appellant represents herself; Mr.
McDermott did not enter an appearance; Ms. Burnham sent a letter to the Court but did not
enter her appearance, and the Town is represented by Jill E. Spinelli, Esq.
       The Town has moved for summary judgment; Appellant was sent information from
the Court explaining summary judgment and the procedure for responding to a motion.
The following facts are undisputed unless otherwise noted.
       On June 16, 2003 Gerald McDermott applied to construct a house on his lot in the
Mansfield View subdivision. Appellant owns adjoining property; Ms. Burnham owns
property adjoining Ms. Barrett=s, across Ms. Barrett=s driveway from the McDermott
property. The Zoning Administrator granted the permit as a permitted use on June 26,
2003. The fifteen-day period for appeal to the DRB expired on July 12, 2003. On July 18,
2003, the Zoning Administrator outlined his position on various issues that had been raised
with him since the start of construction on the house. That letter went to Robert and
Kimberly Christie, Leslie and Chad Burnham, Charles Burnham, and Gerald and Mary
Jane McDermott, and stated in its final paragraph that it could be appealed by filing a
notice of appeal with the DRB within 15 days.
       On July 31, 2003, Ms. Barrett submitted to the Zoning Administrator and the DRB a
four-page letter stating the problems with the McDermott project, asking for Mr. McDermott
to install his own driveway and asking for the banks to be repaired and plantings replaced
on her property; her letter made reference to the points raised in the Zoning Administrator=s


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letter. Nothing in the Barrett letter claimed to be a notice of appeal to the DRB, either from
the permit issued to Mr. McDermott, or from the July 18, 2003 letter of the Zoning
Administrator.
       On August 1, 2003, Ms. Burnham filed an appeal with the DRB, although without the
required filing fee. It was set for hearing by the DRB in September of 2003, after which the
DRB ruled that the Burnham appeal of the McDermott permit was not properly before the
DRB, as it was filed after the expiration of the fifteen-day appeal period, and lacked the
filing fee. Appellant, but not Ms. Burnham, has appealed that decision to this Court in the
present appeal.
       Appellant could have appealed the initial permit, but did not do so within the fifteen-
day period for appeal. If she had done so, she could have raised all her issues regarding
the proposal and whether any of it was really located on her property or whether it violated
any of the Zoning Regulations. She did not do so.
       Appellant could have filed a late appeal of the initial permit, claiming that her lack of
knowledge about the original permit justified a late appeal; if she had done so, the DRB
and then this Court could have addressed the issue of whether notice of the original permit
was properly given or whether any problems in notice should have justified a late appeal.
She did not do so.
       Appellant could have appealed the July 18, 2003 letter of the Zoning Administrator
to the DRB. Her response letter was dated within the fifteen-day period for appeal of that
letter, (and may have been filed with the DRB within that fifteen-day period), but it did not
purport to be an appeal of that letter. If that letter had been accepted by the DRB as an
appeal, the DRB could have addressed each of the issues in that letter: lack of individual
notice of the original permit, whether the covenants of the Mansfield View subdivision or
the property rights of the parties can be considered in a zoning application, whether the
safety of the driveway access can be considered in a zoning application for an individual
house or is instead within the purview of the Public Works Department, and whether the
parking configuration for the project violates the required ten-foot greenbelt provision of the
zoning ordinance. Appellant could have challenged the DRB=s failure to treat her letter as
a notice of appeal of the Zoning Administrator=s letter, by requesting the DRB to accept it or

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reject it, and could have then appealed that DRB ruling to this Court, but she did not do so.
       All that Appellant has appealed in the present case is the DRB=s rejection of the
Burnham appeal as untimely and also as lacking the required filing fee. In response to the
summary judgment motion she has not provided anything to suggest that the Burnham
appeal of the McDermott permit was timely filed. The only fact she disputes regarding the
procedural history of the Burnham appeal is whether the approved McDermott permit
application was properly posted in Town Hall from June 26, 2003 through at least July 12,
2003. This sole disputed fact is not supported by any affidavit to suggest that it was not
properly posted.
       Appellant could have (and could still) file an action in superior court regarding any
damage to her property or trespass on her property she believes is occurring due to the
McDermott project. Such an action is not within the jurisdiction of this court.
       Appellant could have (and could still) request the current Zoning Administrator to
take action to enforce the Zoning Regulations and/or to require that the McDermott project
be built according to its proposed plan. Such issues are not before the Court until or
unless they are first addressed by the Zoning Administrator and come before the DRB, or
unless the Town files an enforcement case to enforce the Zoning Regulations or the
permit.


       Accordingly, based on the foregoing, on or before June 25, 2004, Appellant may file
a supplemental response to the Town=s Motion for Summary Judgment containing an offer
of proof, in affidavit form, of any evidence she would present at trial in support of her
suggestion that the approved McDermott permit application was not properly posted in
Town Hall from June 26, 2003 through at least July 12, 2003. In the absence of an
affidavit or other evidence on that point, the Town=s Motion for Summary Judgment will be
granted. If any short evidentiary hearing turns out to be necessary on that point, it will be
scheduled at the Stowe Town Hall on the mid-to-late afternoon of July 14, 2004.

       Done at Barre, Vermont, this 11th day of June, 2004.



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_________________________________________________
     Merideth Wright
     Environmental Judge




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