                                    STATE OF VERMONT

                                ENVIRONMENTAL COURT

               In re Appeal of: Ira and Martha
               Jackson
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                                                     Docket Nos. 186-9-00 Vtec
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               Town of Waitsfield, Plaintiff            and 125-8-01 Vtec
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               v.
               Ira and Martha Jackson,
               Defendant.

                                      Decision and Order

   In Docket No. 186-9-00 Vtec Appellants Ira and Martha Jackson appealed from a decision of
the Zoning Board of Adjustment (ZBA) of the Town of Waitsfield upholding the Zoning
Administrator= s Notice of Violation and decision disapproving Appellants= as-built application,
dismissing Appellants= application under ' V(9) of the Zoning Ordinance, and denying
Appellants= applications under ' ' IV(4) and IV(5) of the Zoning Ordinance. In Docket No. 125-
8-01 Vtec, the Town brought an enforcement action against Appellants. The two matters have
been consolidated. Appellants are represented by Carl H. Lisman, Esq., Christina A. Jensen, Esq.
and Peter S. Sidel; the Town is represented by Steven F. Stitzel, Esq. and Amanda S.E. Lafferty,
Esq.

   After certain issues were decided by summary judgment, the hearing on the merits of these
matters was bifurcated so that the issue of whether the watercourse at issue in these matters
qualifies as a > stream= for the purposes of ' V(9) of the Waitsfield zoning ordinance could be
determined first. The Town has also renewed its motion for summary judgment that Appellants
are precluded from contesting that the watercourse is a stream, because they did not appeal the
ZBA= s 1998 approval of a reduction in the stream setback. The Town argues that Appellants=
application, and the ZBA= s approval of that reduction, necessarily though implicitly determined
that the watercourse was a stream, and argues that Appellants are precluded by 24 V.S.A. '
4472(d) from contesting that determination in the present appeal. The Town= s renewed motion is
denied on the same basis as this issue was denied in the original motion ruling. The earlier
proceedings assumed but did not determine that the watercourse was a stream, and therefore
under the circumstances of this case ' 4472(d) does not preclude raising this issue in the present
proceedings.

    An evidentiary hearing was held in this matter before Merideth Wright, Environmental Judge,
who also took a site visit in late November 2001 with Attorneys Jensen and Lafferty. A second
site visit, arranged for Judge Wright to take alone during a period of spring runoff in 2002,
ultimately did not receive permission of the Appellants and will be disregarded. The parties were
given the opportunity to submit written requests for findings and memoranda of law. Upon
consideration of the evidence, the site visit, and the written memoranda and proposed findings,
together with the undisputed facts from the summary judgment decision, the Court finds and
concludes as follows.

   Appellants own an approximately 7.3-acre parcel property, including a single-family
residence and what was formerly an existing shed or barn (and before that, a water-powered
mill), on Route 100 (Main Street) in the Agricultural/Residential zoning district. Property
directly across the segment of watercourse at issue in the present case, and at a steeply higher
elevation, is owned by Turner. Cattle are maintained on the Turner property, and one or two
cattle troughs are maintained on the Turner property, the overflow from which flows downhill
and from time to time reaches the segment of watercourse at issue in the present case.

   In the past, a watercourse traversed Appellants= property at a distance of from 12 to 26 feet
behind (and generally northerly of) the existing barn, to serve an operating water-powered mill at
that location. Other terms used to describe a supply of water to power a mill are > flume= and >
millrace.= The term > flume= also refers to such a watercourse conveyed in a wooden pipe or
trough.

    When the property had an operating water-powered mill, a pond was created on the property
to impound water to power the mill. The pond was fed by a stream which was diverted by human
effort from Shepard Brook upstream of Appellants= property. The original diversion of that
stream, the original creation of the pond (which was smaller than the size of the pond now on
Appellants= property), and the original creation of the watercourse segment at issue in the present
case occurred as early as the early 19th century.

   The stream diverted from Shepard Brook traveled across the adjacent property now owned by
Reynolds. That stream also received water directly from precipitation events, and from ground
and surface water from the higher land northerly of the Reynolds property. That stream traveled
onto what is now Appellants= property in the vicinity of what is now the location of Appellants=
tennis court, to feed the pond. Between the pond and Shepard Brook below the mill is the
segment of watercourse or channel that is at issue in the present case. Without regard to the
presence of water, the channel is several feet across (from bank to bank) and about a foot deep. It
drops off steeply from the elevation of the pond to the elevation of the former mill site, and then
descends more gradually to return to Shepard Brook below the former mill site. As well as
receiving the outflow from the pond, that segment of watercourse receives water from snow
melt, surface flow, and groundwater from the higher elevation land directly to its north, and
receives water directly from precipitation events and from snow melt.

   When the mill was in operation, the outflow from the pond was directed either into a wooden
flume to the millwheel to power the mill machinery, and the water used by the mill returned to
Shepard Brook through the watercourse below the mill, or the outflow from the pond traveled
through the segment of the watercourse at issue in the present case from the pond to rejoin
Shepard Brook below the mill. When the mill was in operation, the watercourse was a stream,
even though its flow (or a portion of its flow) was capable of being diverted into the mill through
the flume, to power the mill machinery, at the election of the mill operator.
   The mill no longer exists. The wooden flume no longer exists, although remnants of its iron
hoops and remnants of its supports are visible in or near the watercourse. Most importantly for
the functioning of the water flow to the pond, the segment of stream from Shepard Brook across
the Reynolds property was filled in at some time in the past, so that water from Shepard Brook
no longer feeds the system described above, unless it is pumped there through a pipe installed by
prior owners across Appellants= property. Water still flows into the small stream remaining on
the Reynolds property directly from precipitation events and from surface flow and groundwater
from the higher land to the north of the Reynolds property. The sources of water in this
watershed have not been thoroughly investigated and may include surface runoff and of water
flowing or seeping from springs and other groundwater sources. This small stream continues to
flow or trickle onto Appellants= property, maintaining an alder wetland and a wet area supporting
cattail vegetation, and flowing into the pond on Appellants= property.

    The maximum level of the pond is now controlled by an outflow or overflow structure. This
structure consists of an upright pipe about 18 inches in diameter, set in the pond near the dam,
connected to a horizontal pipe near the bottom of the pond through which water is conveyed to
the pond outlet visible from below the pond. The upright pipe allows water to flow out of the
pond when the level of the pond reaches the top of the pipe. The top of the upright pipe is lower
than the top of the berm or dam creating the edges of the pond. The upright pipe also has
deteriorated so that some water flows through holes or cracks in it at lower levels. Appellants
have prevented some of the unintended flow out through holes in this structure by encasing it in
a plastic bag.

  Former owners installed a pipe from Shepard Brook to the cattail area, through which water
may be pumped out of Shepard Brook1 into the pond during times when the pond is low.

   The level of the pond fluctuates and from time to time overflows through the upright pipe into
the segment of watercourse at issue in the present case. This overflow occurs even when water
has not been pumped into the pond from Shepard Brook, based on precipitation events in the
watershed area, snow melt, or other increased flow of surface and groundwater from the
northerly higher elevation land (the watershed of the pond system) into the small stream feeding
the pond. The level of the pond generally tends to be higher in the late fall and winter, through
the period of spring runoff and snow melt, and to be lower in the summer and early fall,
especially in periods of drought. Some of the pond water is lost through processes of evaporation
and infiltration into the ground at the bottom of the pond, without implicating the overflow pipe.

   Water reaches and flows through the segment of watercourse at issue in the present case from
water released into it from the pond (due to overflow into the upright pipe or leakage into the
upright pipe or the outflow pipe), from precipitation onto the surface of the surrounding ground
and the watercourse itself, and from snowmelt and flow into it of surface and groundwater from
the higher elevation land to the north. Water flow has occurred in the watercourse segment
during the pendency of these applications and this litigation as shallow streamlets ranging from
less than an inch to approximately six inches deep and from approximately ten inches wide to
approximately two or three feet wide. The flow has left sand and silt in the bottom of the channel
where the flow has occurred, but it has not flowed fast enough for a long enough period to incise
or erode defined channels within the bed of the wider channel.
   Water flow in the watercourse segment is not continuous year-round; therefore the
watercourse segment is not a permanent stream. However, neither is it solely dependent upon
immediate precipitation events (the definition of an ephemeral stream). It carries water flow from
groundwater as well as precipitation and surface water sources, from time to time during the
year. Taking all the evidence into account, it is an intermittent stream as the term is used by
watercourse professionals.

   Although originally created by the artificial diversion of water from Shepard Brook, the
watercourse has functioned naturally since that time, and receives water from natural sources as
well as by the recent artificial pumping into the pond or by diversion from the flume in historical
times. Nothing in the Waitsfield zoning ordinance suggests that protection of > streams= under the
ordinance is in any way limited to those streams that have experienced no human interference
over time.

   Accordingly, the watercourse segment at issue in this case qualifies as a A stream@ for the
purposes of the Waitsfield zoning ordinance.

   In the summary judgment decision of October 2001, the Court ruled that:

[U]nder the 1998 approvals, Appellants only held a zoning permit for a 24-foot-high structure,
on a 30' x 30' footprint, with a one-foot roof overhang, for use as a barn/garage, in connection
with the residential use of the property. Any changes to that permit require an application for an
amendment to the 1998 zoning permit and an amendment to the 1998 stream setback reduction,
which was originally approved A as indicated on [Appellants= ] plans [dated] September 29,
1998.@

   and concluded that

[T]he as-built project requires approval of an amendment to the 1998 stream setback reduction
order, as well as approval of an amendment to the 1998 zoning permit. The ZBA should have
acted on the application under ' V(9)(A) rather than dismissing it, and the Zoning Administrator
should have waited for the ZBA= s ' V(9)(A) ruling before acting on the zoning permit
amendment application.

   We noted in that decision that A ordinarily a matter such as this would be remanded to the
ZBA for action on the ' V(9)(A) application,@ but proceeded to determine the merits of whether
the watercourse is a stream, because if Appellants were to have prevailed on the merits of that
issue, then ' V(9) would not have applied to this project at all and the remand would have been
unnecessary.

   Accordingly, the above-captioned consolidated cases are hereby SEVERED. Docket No. 186-
9-00 Vtec is hereby concluded in this Court and is hereby REMANDED to the ZBA to consider
the application for amendment to the 1998 stream setback reduction order for the as-built project,
and then for the Zoning Administrator to act on the application for amendment to the 1998
zoning permit.
   We will hold a telephone conference on May 2, 2002, to determine whether the enforcement
action, Docket No. 125-9-01 Vtec, should be closed without prejudice to its being reopened at
the election of the Town at any time after those applications are ruled on by the Town, or
whether the parties prefer some other resolution of that case. If the Town wishes to withdraw that
complaint without prejudice to refiling after the amendment applications are finally resolved, the
Court will enter an order waiving the filing fee for that subsequently filed action, to avoid the
case remaining pending but inactive on the docket of the Court. The parties may submit an
agreed order regarding the status of Docket No. 125-9-01 prior to the conference, in which case
the conference will not be necessary.

    Done at Barre, Vermont, this 23rd day of April, 2002.

___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1
    This decision and the jurisdiction of this Court in this case takes no position as to whether
such pumping from Shepard Brook requires a permit under any current state law.
