                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Appeal of Janet Cote             }
                                                }
                                                }    Docket No.257-11-02 Vtec
                                                }
                                                }



     Decision and Order on Town= s Motion to Strike Certain of the Statement of Questions

Appellant Janet Cote appealed from the October 24, 2002 decision of the Development Review
Board (DRB) of the Town of St. Albans, denying her application to convert three seasonal camps
to year-round residential occupancy under ' 302(3)(B) of the Zoning Bylaws, and denying a
variance of the lot size requirements under ' 305(5) of the Zoning Bylaws, in part due to
Appellant= s failure to submit requested information at the successive DRB hearings. Ms. Cote
represents herself; the Town is represented by David A. Barra, Esq.

We must first note that the Environmental Court sits in place of the DRB to hear this application
anew (de novo), without regard to what the DRB decided before. Because the Court hears the
evidence anew, the Town= s motion to strike Question 7 of the Statement of Questions is
GRANTED; the Court will consider the information contained in the disputed fax if it is
admissible evidence related to the application before the Court, regardless of whether the DRB
considered that evidence.

In 2001, Ms. Cote appealed to the DRB regarding a determination of the Zoning Administrator
that the property was in use for A seasonal camps.@ The DRB voted on October 4, 2001 (and
ruled in a written decision dated November 5, 2001) to uphold the Zoning Administrator= s
determination that the property was in use as A seasonal camps.@ If Ms. Cote disagreed with
that determination, she should have appealed the DRB decision to this Court at that time.
Because Ms. Cote did not appeal that determination to this Court, she cannot now raise the issue
of whether the property was > grandfathered= for year-round residential use. 24 V.S.A. ' 4472.
As we have explained in earlier telephone conferences, this issue will only be before this Court if
some future DRB decision addresses it and that decision is appealed to this Court. Accordingly,
the Town= s motion to strike Questions 1, 2, 3, 4, and 8 of the Statement of Questions is
GRANTED.

Questions 5, 11 and 15 assert claims against the Town= s health officer, related to the septic
system, road maintenance and drainage for the property. While Ms. Cote is free to file a claim
against the Town in Superior Court if she has a cause of action based upon the actions of the
town health officer, any such claims are beyond the jurisdiction of this Court in an appeal from
the DRB. Accordingly, the Town= s motion to strike Questions 5, 11 and 15 of the Statement of
Questions is GRANTED.
Questions 9 and 18 assert claims that the DRB chair Mr. Boyd, who has an interest in
neighboring property, had a conflict of interest. While he participated in the 2001 proceedings,
that decision is not before the Court in this appeal. If a DRB member with a conflict of interest
participates in a DRB decision, the Court can vacate the decision for that reason, and order the
matter to be considered again by the DRB without the participation of the disqualified member.
However, it appears from the minutes that as of and after August 22, 2002, Mr. Boyd did recuse
himself from participation as a DRB member in the hearing and deliberations on this application.
While Ms. Cote is free to file a claim against the Town in Superior Court if she has a cause of
action based upon the actions of this town official in his official capacity, such as her allegations
of continuing threats and harassment, any such claims are beyond the jurisdiction of this Court in
an appeal from the DRB. Accordingly, the Town= s motion to strike Questions 9 and 18 of the
Statement of Questions is GRANTED.

Questions 10, 12, 16, and 17 raise claims related to the private property rights of Ms. Cote and
the neighboring landowners regarding their respective boundaries and their respective rights in
and duties to maintain Sandy Cove Road. While Ms. Cote is free to file a claim against these
landowners in Superior Court to settle their respective rights, any such claims are beyond the
jurisdiction of this Court and cannot be considered in this appeal.

Questions 6, 13 and 14 regarding the merits of Ms. Cote= s application therefore remain for
decision by this Court.

As Ms. Cote continues to assert her intention to have the assistance of counsel at the hearing on
the merits of this application, we will schedule the hearing enough in advance to allow her time
to retain an attorney and for that attorney1 to prepare for the trial. Accordingly, it is scheduled to
be held on Wednesday, July 9, 2003, at the Costello Courthouse (Chittenden District Court) on
Cherry Street in Burlington, subject to the availability of a courtroom. The case arises in Franklin
County and the hearing would normally be held in St. Albans, but Ms. Cote has requested that it
be held in Washington County as a more convenient location for her. We will schedule it in
Burlington to make the hearing more convenient for Ms. Cote without seriously inconveniencing
the witnesses who will have to travel from St. Albans, but cannot schedule it as far from St.
Albans as Washington County.

Done at Barre, Vermont, this 11th day of April, 2003.




___________________
Merideth Wright
Environmental Judge



                                             Footnotes
1.
    As she stated in today’s telephone conference that she intends to retain Attorney Jim Caffry,
we will send him a courtesy copy of this order.
