                                  STATE OF VERMONT
                                ENVIRONMENTAL COURT

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       In re Lowre Variance                 {              Docket No. 19-2-11 Vtec
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                               Decision on Motion to Dismiss

       Cheryl Monteith (“Appellant”) has appealed a decision of the Town of Peacham Zoning
Board of Adjustment (“the Board”) granting a variance to Richard Lowre (“Applicant”) for a
pre-existing sign that the Board determined to be 0.29 square feet larger than what is allowed
under the Town of Peacham (“the Town”) Zoning Bylaws (“the Bylaws”). Currently pending
before the Court in this matter are two motions filed by Applicant: a motion for summary
judgment on some of the questions Appellant raises in her Statement of Questions and a motion
to dismiss both Appellant and another party in this appeal, Martha Evangelista, for not meeting
the statutory requirements necessary to be an “interested person” in these proceedings.
       Because Appellant is the only party appealing this case, resolution of the motion to
dismiss could lead us to dismiss the appeal and regard the other motion as moot. Therefore, we
first address the motion to dismiss. We address the motion for summary judgment in an
accompanying Entry Order, also issued today.
       In this proceeding, Appellant and Applicant both appear pro se.           The Town is
represented by John H. Marshall, Esq. and Kane H. Smart, Esq. appears as co-counsel.
Interested persons Martha Evangelista and John Sheehan also appear pro se.

                                     Factual Background
       For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed unless otherwise noted:
1.     Applicant owns a parcel of land approximately 5.15 acres in size in Peacham, Vermont.
Applicant’s parcel does not have road frontage but is served by an easement over lands of those
from whom he bought his property, Donald and Deane Moore. This easement provides access
to and from Applicant’s property and the nearest town highway: Hollow Wood Road.
2.     Sometime before September 20, 2010 Applicant constructed a free-standing sign,
attached to support posts, on the Moore property, within the easement used to access
Applicant’s home. He obtained approval from Donald Moore to do so. The sign is located

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approximately 19 feet 10 inches from the centerline of Hollow Wood Road and is located within
the utility easement held by Green Mountain Power. The sign is located within what has been
described as a utility easement “dead zone,” meaning the land between a utility pole and its
support pole.
3.      The sign, as constructed, contains two words in Italian, “Stella Danza,” which Applicant
translates as “Star Dancer.” Applicant submitted several photos in support of his motion to
dismiss, and we have attached a copy of his photo Exhibit 5 to this Decision, solely for reference
purposes.
4.      When Applicant constructed his sign he did not have a zoning permit to do so. On
September 20, 2010, Applicant applied to the Town’s Zoning Administrator (“the ZA”) for a
zoning permit for the disputed sign.
5.      The ZA denied Applicant’s application on October 6, 2010 and provided several
explanations for his denial: that the sign exceeds the maximum size allowed, that the sign is not
located on Applicant’s property, and that it may be encroaching onto the setback required from
the centerline of the adjoining road, Hollow Wood Road.                      Applicant appealed that
determination to the Board.
6.      On January 20, 2011, the Board granted a variance to Applicant for his sign.1 The Board
determined that the sign is 0.29 square feet larger than the 12 square feet allowed by the Bylaws
and granted a variance for the size difference.
7.      The Board also determined that the sign is 19 feet, 10 inches back from the centerline of
Hollow Wood Road. Although the Board concluded that the applicable setback is either 24.9 or
45 feet, 2 it was not convinced that the setback provisions apply to roadway signs. Nonetheless,
as part of its approval of a variance for the size of the sign, the Board imposed the condition that
the sign be moved to create a 26-foot setback from the centerline of Hollow Wood Road. The




1 It is unclear from the Board’s decision whether the Board merely granted Applicant a variance or a

variance as well as a zoning permit. Appellant questions whether Applicant properly presented the
Board with a variance request. However, the Board’s January 20, 2011 decision (a copy of which
Applicant submitted as Exhibit 8 to his motion to dismiss) expressly states that the Board hearing was
noticed and conducted to consider a “Variance for a sign: Application #16-10 of Richard and Donna
Lowre, 164 Hollow Wood Road, Peacham, Vermont.” Resolution of Appeal Request, at 1 (Town of
Peacham Zoning Bd. of Adjust. Jan. 20, 2011).
2  The discrepancy on setbacks appears to be due to the fact that the land on which the sign is constructed
is located in two zoning districts.

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decision also required the sign to be located at least one foot outside the property line shared
with abutting land owner John Sheehan.
8.     After the Board released its decision on January 20, 2011, Appellant filed a timely appeal
with this Court.
9.     Appellant resides on property off Thaddeus Stevens Road about a quarter of a mile from
Applicant’s sign. Her property and that of Applicant is depicted on an aerial photo which
Appellant retrieved from an internet-based website and attached as Exhibit D to her response to
Applicant’s motion to dismiss. We have attached a copy of this photo to this Decision, solely to
demonstrate the correlation between the parties’ properties.
10.    Martha Evangelista and John Sheehan have also entered appearances in these appeal
proceedings as interested persons.         Ms. Evangelista appeared before the Board as a
representative of her then-housemate, now-husband, John Sheehan.               Mr. Sheehan owns
property that abuts Applicant’s and the Moore property to the south.

                                            Discussion
       Appellant has appealed the Board’s decision granting a variance to Applicant for a pre-
existing sign that the Board determined to be 0.29 square feet larger than what is allowed under
the Bylaws. Applicant has filed a motion to dismiss both Appellant and another party in this
appeal, Martha Evangelista, for not meeting the statutory requirements necessary to be an
“interested person.”
       In order to understand the argument Applicant makes in his motion, it is important to
note that the term “interested person” is used by the Court in two distinct, but related, ways: as
a statutory term of art that is defined in 24 V.S.A. § 4465(b) and describes a party who has
standing to appeal the decision of a zoning administrator or municipal panel, see 24 V.S.A.
§§ 4465(a), 4471(a),3 and in an informal sense to refer to any party who meets the requirements
to participate in appeals brought by other parties, see 10 V.S.A. § 8504(n). There is overlap
between the two definitions: a party with standing to appeal a decision as an “interested
person” under 24 V.S.A. § 4465(b) is also qualified to participate as an interested person in an
appeal brought by another person, pursuant to 10 V.S.A. § 8504(n)(5).

3  A party wishing to appeal the decision of a municipal panel must also meet an additional
requirement—participation in the proceeding below, 24 V.S.A. § 4471(a)—but Applicant here does not
question that Appellant meets this requirement, and Appellant asserts that she did participate in the
Board’s hearing.

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       Because of the overlap in these definitions—essentially, an overlap in the qualifications
to appear as either an appellant or an interested person in the appeal of a municipal decision—
Applicant’s challenge to Appellant’s and Martha Evangelista’s appearance in this appeal relies
on the same legal premise. Applicant challenges each of their abilities to qualify as “interested
person[s]” as defined by 24 V.S.A. § 4465(b).
       The definition of interested person in § 4465(b) is broken down into multiple categories,
and to be qualified to appear in this appeal Appellant and Ms. Evangelista must each show she
falls within at least one category. Both Appellant’s and Ms. Evangelista’s assertions as to why
each can appear in this appeal speak to the same single category, that described in 24 V.S.A.
§ 4465(b)(3). Thus, our subsequent analysis addresses whether each party’s assertions meet the
three requirements of § 4465(b)(3): that each party 1) “own[] or occupy[] property in the
immediate neighborhood of a property” subject to the Board’s decision; 2) “demonstrate a
physical or environmental impact on [his or her] interest under the criteria reviewed”; and 3)
“allege[] that the decision . . . if confirmed, will not be in accord with the policies, purposes, or
terms” of the Town plan or Bylaws.
       We address Applicant’s challenge to Appellant’s standing first because her dismissal, as
the sole appellant in this case, would necessitate dismissal of the appeal itself. Turning to the
first requirement of § 4465(b)(3), although the parties dispute whether Appellant can see
Applicant’s sign from her property, both parties agree that Appellant resides on property that is
approximately a quarter of a mile from the sign and that Appellant’s residence is on a hill
overlooking Applicant’s property. Furthermore, Appellant states that her property is in the
same neighborhood as Applicant’s, and Applicant does not refute this statement. Based on the
close proximity of the properties, and the absence of any assertion that they are located in
distinct neighborhoods, we find that Appellant meets the first requirement to be an interested
person under § 4465(b)(3). That is, we find that Appellant has shown that she owns or occupies
property in the immediate neighborhood of the property on which the sign under review is
located.
       We turn now to the second requirement of § 4465(b)(3)—that Appellant demonstrate a
physical or environmental impact on her interest that is related to the criteria under which the
Court will review the sign. This statutory requirement incorporates some of the same elements,
including injury in fact, that a party must meet to have standing to bring a claim in the Civil


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Division of our Superior Court. Thus, to determine if Appellant meets this requirement, we
first ask whether she has described how the development under review will impact her
specifically (i.e., described a concrete and particularized injury) and if she has referenced
evidence showing that such impact is not hypothetical (i.e., demonstrated an actual or imminent
injury). See Agency of Natural Res. v. U.S. Fire Ins. Co., 173 Vt. 302, 306 (2001) (explaining that
Vermont courts have adopted the same restriction as federal courts in terms of hearing only
cases where actual controversies exist between the parties and thus only allow parties who meet
the requirements for standing in federal courts to raise claims in Vermont courts); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–51 (1992) (describing the requirements for standing in
federal courts).
       To find that Appellant meets the second requirement of § 4465(b)(3) we would also have
to go one step farther—we would need to ask if the impact Appellant demonstrates is related to
the criteria under which the Court will review the sign. That is, we would need to conclude
that the impact Appellant demonstrates is related to the criteria for granting a variance and to
the provisions of the Bylaws from which the variance is sought.               Because we ultimately
conclude that Appellant fails to demonstrate an injury in fact, as discussed in detail below, we
need not complete this step in our analysis. However, we include here a full description of the
legal analysis relevant to the second requirement of § 4465(b)(3), so that we may offer a detailed
analysis of Appellant’s assertions in relation to the second requirement of § 4465(b)(3).
       In her memorandum, Appellant appears to make three statements asserting that the sign
will impact her interests.4    Appellant’s principal assertion is that the sign will attract the
attention of passing drivers and will “create additional traffic, exhaust, noise and lights within
view” of her residence. (Cheryl Monteith’s Resp. to Mot. to Dismiss Appellant 1, filed June 16,
2011). Appellant also asserts that “[m]any of the residents, myself included, walk their dogs,
and run regularly” on the roadway and that “[a]dditional traffic will create safety concerns,”
presumably for her and the other residents.           (Id.)   Appellant’s third assertion is that the
“business associated with [the sign] must be considered as part of the whole” and that




4  We say that Appellant “appears” to make these two statements because her memorandum does not
highlight these particular statements as important nor directly state that they are the impacts she is
alleging. We give Appellant the benefit of drawing these inferences because to do otherwise appears
needlessly strict.

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Applicant “operates an unpermitted pizza business from his residence creating traffic in excess
of what is normal for a residence.” (Id.)
       It is clear that some of Appellant’s assertions, those that relate to the impact of the sign
on others, are insufficient to demonstrate a personal impact on her. Concerns about the impact
of a development on others, while perhaps laudable, do not constitute a particularized injury;
they are not a “physical or environmental impact on a [particular] party’s interest” as required
by § 4465(b)(3). See, e.g., Lujan, 504 U.S. at 560 n.1 (“By particularized, we mean that the injury
must affect the plaintiff in a personal and individual way.”).
       The remainder of Appellant’s assertions, while they do speak to particularized injuries,
are also insufficient to demonstrate an impact on her because some are purely hypothetical and
others are based upon facts not germane to the pending application. Appellant asserts that
Applicant’s sign will create additional traffic, and with that traffic, additional exhaust, noise,
and lights, all in view of her home. She also asserts that this traffic will put her at risk when she
walks or runs by the sign. Appellant’s contention is not that these impacts will result directly
from the sign itself; rather, it is that these impacts will result from the additional traffic she
anticipates the sign will create.
       Interestingly, Appellant does not claim that the sign has increased traffic in the time that
it has already existed. Nor does she explain why this particular sign will create traffic in the
future. Appellant’s anticipation of a future increase in traffic appears to be based primarily on
the definition of “sign” found in the Bylaws—that a sign is something that is “designed or used
to advertise or call attention or directs a person to any business, association, profession, [etc.].”
See Bylaws Article 10. While one of the purposes of a sign may be to attract people to a
particular location, we decline to assume that every sign, by definition, creates traffic. Thus, in
the absence of any supporting facts, the Court is left with only hypothetical assertions that
Applicant’s sign will increase traffic and negatively impact Appellant. See City of Los Angeles
v. Lyons, 451 U.S. 95, 105–06, 111 (1983) (concluding that a party lacked standing when he
alleged that he would suffer a future injury but failed to allege facts supporting the conclusion
that he was likely to suffer that injury); see also Amnesty Int’l U.S.A. v. Clapper, 638 F.3d 118,
136 (2d. Cir. 2011) (interpreting Lyons to establish the principle that “a plaintiff may obtain
standing by showing a sufficient likelihood of future injury” through the allegation of facts
addressing the probability of that injury).          Appellant’s hypothetical assertions fail to


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“demonstrate a physical or environmental impact on [her] interests,” as required by
§ 4465(b)(3).
       Appellant also appears to base her contention that there will be increased traffic on the
reasoning that the sign is associated with a business and that the business has, for an
unspecified period, created traffic. These assertions are too vague to support a showing of
impact. Appellant concludes that the sign will increase traffic levels, but provides no factual
foundation for how she has arrived at this legal conclusion.          In fact, it appears that her
conclusion is that some undefined business, not the sign at issue in this appeal, could be the
cause of unspecified traffic. Appellant fails to provide the basis for why she believes she will be
impacted by the decision on appeal here: the grant of a variance for the sign itself.
       In contrast, Appellant’s real concern appears to be how she may be impacted by a
decision granting a zoning permit for the business she alleges Applicant is conducting on his
property. But the Bylaws themselves, in § 415, make clear that there must be a distinction
between the permit review procedures for signs and the businesses they advertise: “[s]igns are
permitted uses considered independently of the businesses or operations they are advertising,”
and should clarify to Appellant why she is incorrect when she asserts that businesses associated
with signs “must be considered as part of the whole.” (See Cheryl Monteith’s Resp. to Mot. to
Dismiss Appellant 1, filed June 16, 2011.)
       As discussed above, Appellant has shown that she meets the first requirement necessary
to qualify her as an “interested person” under § 4465(b)(3), but she has failed to show that she
meets the second requirement. Thus, we find it unnecessary to address whether she meets the
third requirement and conclude that Appellant does not have standing to appeal the Board’s
decision granting a variance for Applicant’s as-built sign.        Therefore, Appellant must be
DISMISSED from this appeal.
       Because Appellant is the sole appellant in this appeal, we must also now DISMISS the
appeal in its entirety. Applicant’s request that we dismiss Martha Evangelista, a non-appealing
participant in this appeal, is now moot as there is no appeal in which she can participate. We
emphasize that our ruling today does not address the merits of the decision below but rather
solely concerns Appellant’s standing; without a proper appellant to appeal the Board’s decision
we have no jurisdiction to opine on its merits.




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                                         Conclusion
       For the reasons detailed above, we GRANT Applicant’s motion to dismiss Appellant
from this appeal and consequently DISMISS this appeal. Applicant’s pending motion for
summary judgment is addressed in an Entry Order that is also issued today.
       This Decision and the accompanying Entry Order conclude the matters before the Court
in Docket No. 19-2-11 Vtec. A Judgment Order also accompanies this Decision.
       Done at Berlin, Vermont this 31st day of October, 2011.




                                                    Thomas S. Durkin, Environmental Judge




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