                                 STATE OF VERMONT

                               ENVIRONMENTAL COURT




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Appeal of Tenney                            }   Docket No. 217-11-04 Vtec

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                      Decision and Order on Cross-Motions for Summary Judgment


      Appellant-Applicant Richard T. Tenney appealed from a decision of the Zoning

Board of Adjustment (ZBA) of the Town of Lincoln denying his remanded 2003 application

for a zoning permit to place a 14' x 70' mobile home with a 8' x 10' front porch in the

footprint of a former residence on the property. Appellant-Applicant is represented by Jon

T. Anderson, Esq.; the Town of Lincoln is represented by Jill E. Spinelli, Esq. Interested

persons Jennifer and Curtis Kile entered their appearance representing themselves in two

earlier cases, and have been treated as parties in this consolidated appeal, but did not

formally enter their appearance or participate in the briefing of this motion.       Both

represented parties have moved for summary judgment on the merits of this appeal.
       The following facts are undisputed unless otherwise noted.        Appellant-Applicant

owns a 0.17-acre parcel of land[1] within the Town of Lincoln's Outlying zoning district.

Single family dwellings are a permitted use in the Outlying zoning district. A single-family

dwelling existed on the property long before the Town's adoption of the Zoning Regulations.

Whatever sewage disposal system or method served the dwelling was in place prior to the

Town's adoption of its Sewage Disposal Ordinance in 1995.


       The preexisting dwelling was nonconforming with the rear setback requirement and

the lot is nonconforming with the minimum lot size requirement of the Zoning Regulations,

but the lot meets the requirements for consideration as a pre-existing small lot.        The

preexisting dwelling was destroyed by fire on April 24, 2002.


       Appellant-Applicant's 2003 application to rebuild on the site had been denied and had

been appealed to this Court in Docket No. 170-9-03 Vtec. In that appeal, by entry order dated
April 6, 2004, the Court had ruled that:


       All that is before the Court in this appeal is whatever was before the ZBA. If the
       Zoning Administrator simply postponed ruling on the application for a zoning permit
       until Mr. Tenney first obtained a variance from the ZBA, then all that is before the
       Court in this appeal is the Zoning Administrator's decision that the application
       needed that variance. If in this appeal the Court decides that the application does
       not actually need a variance . . . then the application goes back to the Zoning
       Administrator for him to act on it.
       While the issue of whether the 2003 application required a variance was still before

the Court, Appellant-Applicant applied in 2004 to place a shorter mobile home and

attached porch entirely within the footprint of the original residence. In response to the

2004 application, the Administrative Officer issued a letter to Appellant-Applicant dated

April 27, 2004, explaining that the application was incomplete because it lacked the

sewage disposal system construction permit required by §504.3 of the Zoning Regulations,

and because it lacked documentation of the number of bedrooms in the former house and

whether the house was served by a leach field.




       In early May of 2004, the parties agreed that, although the foundation of the former

house was 60 feet in length, the house itself had been approximately 75 feet in length, so

that the 2003 application for a 70-foot-long mobile home did not require a variance.

Based on that agreement, on May 19, 2004, the Court issued an order in Docket No.

170-9-03 Vtec vacating the ZBA decision on the 2003 application and remanding the

matter to the Zoning Administrator for a ruling on the merits of the 2003 application.


       On May 21, 2004, the Administrative Officer denied the 2004 application after the

additional requested information had not been provided.         Appellant-Applicant did not

appeal that denial, preferring to pursue the remanded 2003 application for the longer

mobile home. On August 12, 2004, the Administrative Officer issued a decision denying
the remanded 2003 application for the same reasons as the 2004 application had been

denied.   Appellant-Applicant appealed that decision to the ZBA, which upheld the

Administrative Officer's denial of the 2003 application. That denial is the subject of this

appeal.


       The only requirement for approval of a single-family residential building within the

footprint of the pre-existing building contested by the Town is whether, under §504.3 of

the Zoning Regulations, Appellant-Applicant's application for the zoning permit was required to

include a sewage disposal system construction permit. That section requires a sewage disposal

construction permit "if applicable."


       Under §3.2 of the Sewage Ordinance, a single-family residence requires a Disposal

System Construction Permit before commencement of construction. Construction is defined

to include three categories: the construction of a foundation for or "erection of a new

building;" activities related to structures falling within the change of use provisions of §3.5;

and "any work which involves or may affect any portion of existing or proposed sewage

disposal or water supply facilities on the site." Appellant-Applicant's proposal falls at least

within the first of these categories, as it constitutes erection of a new building, and

therefore requires a Disposal System Construction Permit.
       Appellant-Applicant's proposal also may fall within the third of these categories if it may

affect any portion of the existing sewage disposal facilities on the site. In the present case,

Appellant-Applicant asserted in his affidavit that the pre-existing building "was served by a

septic system" in operation before the 1995 Sewage Ordinance, and that the system

"works well without creating a health hazard or public nuisance and without polluting

ground or surface water." Accordingly, the Zoning Administrator reasonably required 'other

information' under §504.5 of the Zoning Ordinance about those asserted existing sewage

disposal facilities, whatever they might be, in order to determine whether Appellant-

Applicant's proposal may affect the existing sewage disposal facilities on the site, under

§3.2 of the Sewage Ordinance, or involves any repairs to or rebuilding of the existing

sewage disposal facilities subject to §3.2.1 of the Sewage Ordinance, or is eligible for

consideration as a minor modification under §3.2.2. of the Sewage Ordinance.




       Appellant-Applicant also claims that the sewage disposal system for the property is

grandfathered under §3.6 of the Sewage Ordinance. That section is not an exemption

from the requirement of obtaining approval of the sewage disposal system for existing

single-family and seasonal residences.       Rather, it is an approval by operation of the

ordinance, for existing sewage disposal systems, "provided that such systems do not

create a health hazard or a public nuisance, or pollute surface or groundwater." Material

facts are in dispute as to whether the property even has an existing "sewage disposal system"
as that term is defined in the Sewage Ordinance, that is, whether it uses "undisturbed soil

on-site as a disposal medium" or instead whether it constitutes a straight pipe onto the

surface of the ground at the stream bank. If it does have an existing sewage disposal

system, it is for the Sewage Control Officer and/or the Town Health Officer (under the

Sewage Ordinance) and not for the Zoning Administrative Officer (under the Zoning

Ordinance)[2] to determine whether or not it is creating a health hazard or public nuisance, or is

polluting surface or groundwater. If it is, and needs to be upgraded, the "extent to which

compliance is possible" must also be determined under the Sewage Ordinance, not the

Zoning Ordinance.


       The Town also argues that this Court lacks jurisdiction to hear this appeal, because

"some new evidence has surfaced suggesting that the Applicant does not own all of the

lands over which he is proposing to construct the replacement mobile home."


       This Court only has jurisdiction to determine whether an appealed application meets

the criteria in the Zoning Regulations and other applicable regulations necessary for

approval. In general, the existence of a related private property dispute does not deprive

the Court of jurisdiction, although it may make it difficult for an applicant to show that an

application meets all the requirements for approval. For that reason, if there is a related

private property dispute to be resolved in Superior Court, it may make sense to postpone

a zoning appeal to be heard after any necessary property disputes are resolved.
       In the present cases, at the telephone conference (see enclosed notice) the parties

should be prepared to discuss whether the remaining matters should proceed despite the

pendency of the property dispute.




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

Appellant-Applicant's Motion for Summary Judgment is DENIED and the Town's Motion for

Summary Judgment is GRANTED on the issue that the proposal requires a Disposal

System Construction Permit prior to the Zoning Administrator's consideration of the zoning

permit at issue in the present case. Whether the existing system qualifies as a "sewage

disposal system" under the Sewage Ordinance, and whether it is eligible for approval as

an existing system under §3.6.1 or as a minor modification under            §3.2.2, are factual

questions that must be resolved in the first instance by the Sewage Control Officer and are not
before the Court in this appeal.




       This decision appears to the Court to conclude all the issues in the above-

captioned case.     However, this matter and the two related enforcement cases remain

scheduled for hearing on April 12 and 13, 2005.            Accordingly we will hold a brief

telephone conference on March 24, 2005 (notice enclosed), with all the parties in all the

pending cases, to discuss whether any issues remain for that hearing in the present
appeal, and whether the parties prefer to place the remaining cases on hold until the

property disputes are resolved. Please be prepared to discuss the status of any related

property disputes and whether they have been or are being filed in Superior Court.




      Done at Berlin, Vermont, this 21st day of March, 2005.


_________________________________________________


                                    Merideth Wright


                                    Environmental Judge




      [1]
            If there is a dispute regarding the size or boundaries of this parcel, with
reference to adjacent land of the Kiles, such dispute must be resolved in Superior Court
and is not before this Court in this appeal or in either of the related enforcement cases,
Docket Nos. 169-9-03 Vtec and 226-12-04 Vtec.

      [2]
            In some towns, the same individual may fill both or all three positions, but the
route of appeal from decisions made under the Sewage Ordinance may not be the same
as that from decisions made under the Zoning Ordinance.
