                         STATE OF VERMONT

                      ENVIRONMENTAL COURT

         In re: Appeal of Thomas } Docket No. 37-2-02
         J. Morse                } Vtec
                                 }
                                 }
                                 }




          Decision and Order on Appellant=s Pending Motions

In the above-captioned case1, Appellant has appealed from the
January 10, 2002 decision of the Zoning Board of Adjustment (ZBA) of
the Town of Brighton denying his application for a conditional use for
The Grand View, apparently for lack of specificity in the application
rather than on its merits under the conditional use criteria. Appellant
represents himself; the Town is represented by Paul S. Gillies, Esq.
Appellant has filed a number of documents requesting action by the
Court, but also requested that Judge Wright disqualify herself. That
motion was referred without ruling by Judge Wright to the
Administrative Judge for Trial Courts as provided by V.R.C.P. 40(e)(3).
Judge Cashman was assigned and denied the motion to recuse on April
3, 2002, after hearing. Accordingly, the matter was returned to Judge
Wright to address the other pending motions.

In various filings, we note that Appellant has alluded to the possibility
of filing a suit or suits for damages. As we also pointed out in
September of 2000 in the earlier case, any complaint against the Town
or against any named individuals seeking money compensation or
punitive damages for any of their actions, including any complaint for
defamation of character, must be filed in the Essex Superior Court (or
in federal court if brought under any federal law.) The Vermont
Environmental Court does not have jurisdiction of such claims.

Appellant has filed the following motions or requests in the above-
captioned case2:

      Motion filed February 25, 2002 requesting A a court order to
      direct the Town of Brighton to cease and desist on the demand
     to meet the requirements of Paragraphs 401.1 and 401.2@ (of
     the Town of Brighton Zoning Bylaw). The Town= s response was
     filed on March 12, 2002. Appellant made a supplementary filing
     on this motion on April 2, 2002.
     Motion filed February 25, 2002 requesting that the Court A direct
     the Brighton Planning Commission to cease and desist on the
     political persecution of Tom Morse and to restore his land rights
     on the grounds of not being allowed to inspect is
     unconstitutional.@ This document also contains certain discovery
     requests of the Town regarding the ZBA decision on appeal. The
     Town= s response was filed on March 12, 2002. Appellant made
     a supplementary filing on this motion on April 2, 2002.
     Motion filed March 7, 2002, entitled A Requesting relief from
     persecution,@ requesting by implication an order preventing the
     Town Constable from serving Appellant with notices of trespass.
     This document also requests A a motion requiring the Town of
     Brighton and Mr. Gillies to respond to requests for discovery@
     outlined in the document. This document also requests A a
     motion for dismissal on the following grounds@ which is actually
     a motion that the Court A grant the permits requested in the
     application.@ The Town= s response was filed on March 12,
     2002. Appellant made a supplementary filing on this motion on
     April 2, 2002.
     Motion filed March 13, 2002, entitled A Request hearing or if
     information is adequate a summary dismissal.@ The Town= s
     response was filed on March 18, 2002.
     Motion file April 1, 2002, requesting a continuance in Docket No.
     32-2-02 Vtec (now set for trial on April 16, 2002) until after the
     Vermont Supreme Court has decided the other appeal, or at
     least for 30 days. The Town= s response was filed on April 3,
     2002.
     In a document filed on April 2, 2002, as well as making
     supplementary arguments with respect to some of the pending
     motions, Appellant appears to be arguing for the Court to
     consider with regard to the merits of the present appeal the
     constitutionality of the passage of and certain provisions of Act
     200.

We address each of these motions or requests as follows.

Motions 1) to direct the Town of Brighton to cease and desist on the
demand to meet the requirements of Paragraphs 401.1 and 401.2, and
2) to require the Brighton Planning Commission to cease and desist on
the political persecution of Tom Morse and to restore his land rights on
the grounds of not being allowed to inspect is unconstitutional

The previous case recognized that certain uses in The Grand View
were grandfathered, but that the lodging use of The Grand View
required a permit because the evidence did not support that it was
grandfathered or because the evidence showed that any possible
grandfathered lodging use had lapsed. Appellant disagreed with that
ruling and appealed it to the Vermont Supreme Court, but also applied
for a permit, presumably for the lodging use, and possibly for some
other uses. The only dispute before the Court in the present case is
the ZBA= s denial of conditional use approval for whatever use or uses
Appellant applied for to the ZBA.

The Zoning Bylaws adopted in July of 1996 require in ' 401 that A no
zoning permit shall be issued by the Administrative Officer for any use
or structure except for one family and two family dwellings until the
Planning Commission grants site development plan approval.@
Appellant appears to challenge the Planning Commission= s jurisdiction
over site plan approval, and requests the Court to order the Town not
to apply this section of the Zoning Bylaws to Appellant= s application
regarding The Grand View. Also, the Planning Commission may have
discussed Appellant= s refusal to allow on site inspections of the
property as a reason for denying or refusing to consider some
application.

However, if Appellant has applied for and been refused site plan
approval by the Planning Commission, no appeal of the Planning
Commission= s decision has been received by this Court and therefore
no issue regarding site plan approval is before this Court. Any such
issue would be de novo before the Court which would not consider any
impermissible or extraneous evidence in making its decision.
Moreover, if Appellant seeks to challenge the validity of any section of
the Zoning Bylaws adopted in 1996 on a constitutional basis, such a
challenge is within the jurisdiction of the Superior Court under 24
V.S.A. ' 4472(b) and not of this Court.

Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellant= s Motions to direct the Town to > cease and
desist= its demand that Appellant obtain site plan approval and to
order the Planning Commission to > cease and desist= are both
DENIED, either as premature (because no appeal from the Planning
Commission= s decision has been filed), or as beyond the jurisdiction
of this court.
Motion requiring the Town of Brighton and Mr. Gillies to respond to
requests for discovery

The rules of civil procedure on discovery require a party to make the
request of the other party, and then, if the discovery is not provided,
to discuss the matter with the other party= s attorney before bringing
it to the attention of the Court. V.R.C.P. 26(h).

Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellant= s Motion to require the Town to respond to
discovery is DENIED as premature.

Motion requesting an order preventing the Town Constable from
serving Appellant with notices of trespass

This Court has no jurisdiction over private property disputes, or of the
service of notices of trespass, or of the actions of the Town Constable.
Any such motions must be filed in Superior Court in connection with an
action properly filed in Superior Court. Accordingly, based on the
foregoing, it is hereby ORDERED and ADJUDGED that Appellant= s
Motion for an order restraining the town= s agents from serving
notices of trespass or otherwise > harassing= Appellant is DENIED as
beyond the jurisdiction of this court and beyond the jurisdiction of this
zoning appeal.

Motion for > dismissal= which is actually a motion that the Court A
grant the permits requested in the application@

Appellant= s application for conditional use approval of the lodging use
of The Grand View (and any other permits requested of the Zoning
Administrator or ZBA in his application) is all that is before the Court in
the present appeal. We must take evidence on the proposed use for
which the permit was requested, and whether it meets the criteria for
conditional use approval in the Zoning Bylaws. There is insufficient
undisputed evidence for the Court to grant that permit based on
Appellant= s motion, although at the hearing it is entirely possible that
Appellant can come forward with sufficient evidence to support the
grant of a conditional use permit. Accordingly, based on the foregoing,
it is hereby ORDERED and ADJUDGED that Appellant= s Motion for
summary approval of the permits requested in the application is
DENIED, but entirely without prejudice to Appellant= s presentation of
evidence at the hearing in support of the application.
Motion requesting that the Court consider at the hearing the
constitutionality of three named issues

Appellant requested that the Court consider at the hearing 1) the
constitutionality of A granting the Planning Commission permission to
enter private property without the owner= s consent@ and whether the
Planning Commission can use an owner= s lack of permission for the
Planning Commission= s entry onto private property as grounds for
denying a permit; the constitutionality of A granting non-elected
Regional Commissions the approval process over formal decisions by
elected official and votes by Australian Ballot;@ and 3) the
constitutionality of the A actions of Governor Dean when he took 34
days to consider [Act 200] in violation of the 5 day Constitutional
rule.@

Act 200 (1987 Adj. Sess.) did not affect or amend the statute allowing
towns to require that the planning commission approve site plans. 24
V.S.A. ' 4407(5). In any event, no action of the Planning Commission
is before the Court in the present case. It is therefore difficult to
determine in advance how any provision of Act 200 would be relevant
to the proceeding that is before the Court. Similarly, no action of a
regional planning commission is before the Court. When the hearing is
held, the Court will consider all evidence that is relevant and material
to the matter before the Court, and will rule on any objections at that
time.

Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellant= s Motion that the Court consider at the
hearing the constitutionality of certain issues is DENIED as premature.

Request for Continuance

Docket No. 32-2-02 Vtec is now set for trial on April 16, 2002.
Appellant requests that it be continued until after the Vermont
Supreme Court has decided the other appeal (its Docket No. 2001-
506) or at least for 30 days. The Town does not oppose the
continuance, but points out that the Supreme Court appeal is unlikely
to be concluded within 30 days.

We are willing to continue the hearing in the present case until the
Supreme Court has ruled in the matter on appeal, if that continuance
is what Appellant really wants, as the permit applicant. However, we
scheduled the hearing as early as possible so that Appellant could
receive a ruling, and potentially could receive a permit to make a
lodging use of The Grand View, in time for the summer tourist season.

Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellant= s Motion for continuance is GRANTED. This
matter is hereby placed on inactive status until the Vermont Supreme
Court has issued a final decision in Docket No. 2001-506, or until such
earlier time as either party requests that it be returned to the active
docket. Upon receipt of such a request, the Court will schedule a brief
telephone conference to select a new date for the hearing. The parties
shall inform the Court as soon as the Supreme Court has issued a
ruling.

If, after receiving this decision and order, Appellant wishes instead to
proceed with the hearing scheduled for April 16, 2002, he should
immediately inform the Court by telephone at 479-4486 and shall also
file his request in writing, so that we can continue to reserve the
courtroom in Barre for that hearing.

Done at Barre, Vermont, this 5th day of April, 2002.




___________________
Merideth Wright
Environmental Judge



                              Footnotes
1.
    In an earlier case, Docket No. 174-8-00 Vtec, now on appeal to the
Vermont Supreme Court in its Docket No. 2001-506, this Court ruled
that Appellant’s lodging use of the building was not grandfathered, and
that even if such a use had been made in the past, it had lapsed under
the abandonment provisions of the zoning bylaws, but that Appellant
was entitled to apply for his lodging use as a conditional use under the
present zoning bylaws.
2.
     Appellant’s practice is to put all three docket numbers on all his
filings and to send them to the Environmental Court, the Supreme
Court, Attorney Gillies, and the ZBA and/or the Planning Commission,
so that it is at times difficult to determine whether the filing pertains to
the above-captioned case or not.
