                                   STATE OF VERMONT
SUPERIOR COURT                                                   ENVIRONMENTAL DIVISION
Vermont Unit                                                       Docket No. 107-7-14 Vtec

                         PCH, Inc. & PCG, LLC Building Permit

                              ENTRY REGARDING MOTION

Title:         Motion File Appeal Late (Motion 1)
Filer:         Karen Stawiecki
Attorney:      Pro Se
Filed Date:    July 25, 2014

Response in Opposition filed on 08/18/2014 by Attorney Joseph S. McLean for Interested
Person Town of Peacham
Response in Opposition filed on 08/18/2014 by Attorney Kristina I. Michelsen for Appellee
Peacham Community Housing Inc.
Reply in Support filed on 08/20/2014 by Mark Moore, Appellant
Reply in Support filed on 08/21/2014 by Karen Stawiecki, Appellant

The motion is DENIED.

Title:         Motion to Dismiss (Motion 2)
Filer:         Peacham Cafe Group LLC
Attorney:      Kristina I. Michelsen
Filed Date:    August 18, 2014

Response in Opposition filed on 08/20/2014 by Mark Moore, Appellant
Response filed on 08/21/2014 by Karen Stawiecki, Appellant

The motion is GRANTED.

       This matter concerns the property and structures at 643 Bayley Hazen Road, Peacham,
Vermont (the Property) and the Application by Peacham Community Housing Inc. and Peacham
Café Group LLC (PCG) to the Town of Peacham Development Review Board (DRB) for a variance
to allow reconstruction of the historical footprint of a porch; for conditional use approval of the
property as a retail store; and for approval for the continued use of the existing non-conforming
structure. The DRB approved the Application in a February 21, 2014 written decision. On July
25, 2014, Appellants Karen Stawiecki and Mark Moore filed a Notice of Appeal along with a
Motion for Leave to File Late Appeal. On August 18, 2014, PCG filed a memorandum in
opposition to the Motion for Leave to File Late Appeal and a Motion to Dismiss. We now
address both motions.
       The Court completed a site visit to the Property on the morning of December 18, 2014
immediately followed by a hearing on the motions at the Caledonia County Superior Court in St.
Johnsbury, Vermont. Appearing at the site visit and hearing were representatives of Peacham
Café Group LLC and Peacham Community Housing Inc. and their attorney Kristina I. Michelsen,
Esq.; representatives of the Town of Peacham (the Town’s attorney Joseph S. McLean, Esq.
completed an independent site visit and then participated in our hearing); and Chery M. Smith
representing herself. Additionally, a few other town citizens were present at the site visit and
observed the hearing.       Neither Appellant Karen Stawiecki nor Appellant Mark Moore
(Petitioners) appeared at the site visit or hearing. During the hearing on December 18, 2014,
the Court admitted evidence through testimony and exhibits and heard argument regarding
both motions.
       Based upon the evidence presented at the hearing, including that which was put into
context by the site visit, the Court renders the following Findings of Fact.

                                         Findings of Fact
1.     Peacham Community Housing, Inc. (PCH) is a Vermont Corporation and the owner of the
       premises at 643 Bayley Hazen Road, Peacham, Vermont where a café is located.
2.     PCH’s premises consist of two adjoining structures including a two story building which
       shares a common wall with the Petitioners’ property and a barn.
3.     Peacham Café Group LLC (PCG) is a subsidiary of PCH.
4.     Karen Stawiecki and Mark Moore own and operate the Peacham Store located at 641
       Bayley Hazen Road, Peacham, Vermont. Ms. Stawiecki and Mr. Moore also reside in the
       same structure.
5.     PCG’s proposed café shares the north wall of the Peacham Store and therefore is not
       only abutting but is affixed to the Petitioners’ store and residence.
6.     There is parking at the front of both properties adjacent to the public roadway.

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7.    Petitioners concerns relating to the café focus on parking, traffic, and related safety
      issues.
8.    On February 5, 2014, Mark Moore received notice of the DRB’s February 20, 2014
      hearing. This hearing was an appeal of the decision of the Town’s Administrative
      Officer.
9.    The Town warned the DRB’s hearing for February 20, 2014 within the January 6, 2014
      Caledonia Record.
10.   Mark Moore attended and participated in the Town’s February 20, 2014 hearing of the
      application. At the hearing, Mr. Moore raised his parking concerns.
11.   In a February 21, 2014 written decision, the Peacham Development Review Board
      granted PCG and PCG a variance to allow reconstruction of the historical footprint of a
      porch; for conditional use approval of the property as a retail store; and for approval for
      the continued use of the existing non-conforming structure.
12.   The February 21, 2014 decision was not sent to Karen Stawiecki or Mark Moore.
13.   A few days after February 21, Barry Lawson, a member of PCG, obtained the large “P”
      Permit Notice placard sign, stating “Permit/Approval – 2-20-14 DRB Approval. For more
      information contact: Zoning Administrator 592-3114,” from the Town and posted it on
      the right hand side of the Barn wall facing Bayley Hazen Road. This sign remained on
      the wall facing the road for over a month, although its specific location on that wall was
      adjusted to accommodate construction work.
14.   The “P” placard sign was visible from Bayley Hazen Road. One would have had to enter
      PHC’s property and approach the sign to read the hand written text thereon.
15.   Construction work for the Café included pouring a concrete floor in mid-March 2014.
16.   An open house was held at the Café on March 22, 2014.
17.   A Department of Corrections work crew, comprised of 10 workers, was on-site from
      April 7, 2014 through the end of July 2014 working on the Café. Outside physical
      features associated with the crew were a transport van, storage trailer, material piles,
      dump trailer, and a portable toilet.




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18.    Clyde Bradley was the work crew supervisor for the Department of Corrections work
       crew. Mr. Bradley knows Mr. Moore.
19.    During Mr. Bradely’s more than three months at the Property, Mr. Bradley observed Mr.
       Moore drive by the Property on several occasions.
20.    In late May or early June 2014, Mr. Moore observed that PCH was constructing the front
       porch for the Café.
21.    On June 15, 2014, Karen Stawiecki returned to Vermont for the first time in over a year
       and heard that day that the PCH/PCG application had been granted.
22.    On July 2, 2014, Ms. Stawiecki and Mr. Moore filed a petition (Docket No. 98-7-14 Vtec)
       with this Court raising issues of improper notice of DRB proceedings and a failure of the
       Town to serve the February 21 DRB decision upon Petitioners. This Petition was
       dismissed on July 17, 2014 for failure to file a notice of appeal.
23.    On July 26, 2014, Petitioners filed a Notice of Appeal of the February 21 DRB decision
       and the corresponding motion for leave to file a late appeal.
24.    On August 18, 2014, PCG filed a memorandum in opposition to the Motion for Leave to
       File Late Appeal and a Motion to Dismiss.
                                            Discussion
       In support of their motion for leave to file a late appeal, Petitioners take issue with: 1)
the Town’s process and consideration of the application for the Café which allegedly prevented
them from effectively participating in the DRB’s process; and 2) the Town’s failure to serve
them with a copy of the February 21 DRB Decision thereby justifying the late filing of an appeal.
       Petitioners assert that aspects of the Town’s notice of the application were inaccurate,
incomplete, and otherwise improper. Petitioners allege that they did not receive notice of the
application for conditional use review or for a variance.
       Title 24, § 4464(a)(5) of the Vermont Statutes Annotated is clear that no defect in form
or substance of notice requirements shall invalidate the action of an appropriate municipal
panel where reasonable efforts are made to provide adequate posting and notice. Based upon
the above findings of fact, we conclude that the Town undertook reasonable efforts.




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       Petitioners also assert that they had a difficult time preparing for and effectively
participating in the DRB’s process and that the process itself was improper, misleading, and
confusing. It is not uncommon for municipal panels to deal with, and even cause, irregularities
when reviewing applications within the complex land use and permitting process. Petitioners
suggest that the application before the Town was incomplete and that it was unclear how the
Town was reviewing the application. For instance, when the DRB first reviewed the application
it remanded it back to the Zoning Administrator who then denied the application. That denial
was appealed to the DRB and this is what was reviewed at the February 20 DRB hearing.
       We need not analyze in detail the potential defects in the Town’s processing or
consideration of the application as it is clear that Mr. Moore was present for and participated in
the DRB’s February 20 hearing.      Based upon his participation, Mr. Moore had the right to
timely appeal the DRB’s decision which would have caused this Court to undertake a de novo
review of the application. 10 V.S.A. §§ 8504(b)(1), (h); see Chioffi v. Winooski Zoning Bd., 151
Vt. 9, 11 (1989) (“A de novo trial ‘is one where the case is heard as though no action whatever
had been held prior thereto.’” (quoting In re Poole, 136 Vt. 242, 245 (1978))). A de novo trial
generally cures due process violations that do not rise to the level of systemic or structural
errors that undermine the confidence of the system as a whole. In re JLD Props. of St. Albans,
LLC, 2011 VT 87, ¶¶ 10–13, 190 Vt. 259. Mr. Moore’s due process concerns relating to the
process before the DRB would thus have been cured by a de novo review. We therefore DENY
Petitioners’ motion for permission to file a late appeal based upon claims of improper notice,
processing, and potential irregularities in the DRB’s consideration of the application.
       We next consider the Town’s failure to serve Petitioners with a copy of the DRB’s
February 21, 2014 Decision and the impact upon Petitioners’ rights and ability to appeal the
decision. Title 10 V.S.A. § 8504(B)(1) and Vermont Rule for Environmental Court Proceedings
(V.R.E.C.P.) Rule 5 (b)(1) require that an appeal of a DRB decision be filed with the
Environmental Division within 30 days of the date of the DRB decision. Thus, a timely appeal in
this matter would have had to have been filed on or before March 24, 2014. Petitioners filed
their appeal on July 26, 2014. Thus, they seek relief from the requirement that the appeal be
filed within 30 days.


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          Relief from the 30 day appeal deadline may be granted pursuant to 10 V.S.A.
§ 8504(b)(2)(C) upon a finding that “manifest injustice” will result if the late appeal is not
allowed. Additionally, V.R.E.C.P Rule 5(b)(1) authorizes this Court to extend the appeal deadline
as provided in Rule 4 of the Vermont Rules of Appellate Procedure (V.R.A.P.). Pursuant to
V.R.A.P. 4(d), the party seeking relief from the deadline must show “excusable neglect or good
cause.”
          To show excusable neglect or good cause to file a late appeal, the movant “must explain
the delay, including any reasons why an appeal was not filed as soon as possible after the
appellant became aware of the possible need or opportunity for appeal.” In re Feeley Constr.
Permits, Docket Nos. 4-1-10 Vtec & and 5-1-1 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div July 5,
2011) (Wright, J.).      Manifest injustice requires a higher showing that due process or
fundamental administrative fairness require that the movant be allowed to contest the
municipal approval, notwithstanding the strong policy interest in finality. Id. at 7 n.4. While
constitutional principles of procedural due process guarantee an opportunity to present
objections to government action before the action deprives them of property interests, due
process does not entitle one to delay before asserting an appeal after he has observed
contested activities or construction on adjacent property. Id. (citations omitted).
          Based upon the facts of this case, Petitioners were not served a copy of the DRB’s
February 21 decision. They did have considerable opportunity, however, to observe the posting
of the “P” placard on the subject building and observe daily construction activity in February
2014. Although Petitioners did not attend our hearing to provide us with their evidence, within
their motion they admit that in late May or early June, 2014, Mr. Moore observed that PCH was
constructing the front porch for the Café. Yet they did not begin the process of filing an appeal
until July 2 and did not file their motion for permission to file a late appeal until July 25, 2014.
          When a potential appellant has reason to know of a DRB decision, even if they were not
served with a copy of the decision, the appeal period runs from the time of having reason to
know. See In re Saman ROW Approval, Docket No. 176-10-10 Vtec, slip op. at 1–2 (Vt. Super.
Ct. Envtl. Div. Apr. 21, 2011). We conclude that Petitioners were put on notice by the posting of
the “P” placard and by the construction activity, both in plain sight of Baley Hazen Road and


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beginning in late February and continuing for the next few months. Petitioners fail to provide
an explanation for the long delay in bringing their appeal or why they did not file an appeal as
soon as possible after they became aware of the possible need or opportunity for appeal.
        Lastly, V.R.A.P. 4(d)(1)(A) requires that a motion for permission to file a late appeal be
filed no later than 30 days from the running of the appeal period. With the appeal period
expiring on March 24, 2014, V.R.A.P. 4 would require Petitioners’ motion to be filed at the
latest by April 23, 2014. Petitioners filed more than two months after this time.
                                           Conclusion
        For all of the above reasons, we DENY Petitioners’ motion to file a late appeal and
GRANT PCG’s Motion to Dismiss. As such, we also DISMISS this matter.

        A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
Electronically signed on January 16, 2015 at 03:29 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division

Notifications:
Appellant Karen Stawiecki
Appellant Mark Moore
Joseph S. McLean (ERN 2100), Attorney for Interested Person Town of Peacham
Kristina I. Michelsen (ERN 3952), Attorney for Appellee Peacham Cafe Group LLC
Kristina I. Michelsen (ERN 3952), Attorney for Appellee Peacham Community Housing Inc.
Interested Person Chery M. Smith

rkane




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