                                 STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                  }
In re: Marsh Zoning Permit        }      Docket No. 135-7-08 Vtec1
       (Appeal of Efthim)         }
                                  }

                       Decision and Order on Motions to Dismiss

      Appellants William and Roberta Efthim, James and Dorothy Field, Burton and

Margaret McGillivray, William and Lisa Pezzoni, and Louis and Rosemarie Scibetta

appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of

Hartford, denying their appeal of the Zoning Administrator’s issuance of a zoning

permit to Appellee-Applicant Blanche Marsh. Appellants are represented by Steven R.

Saunders, Esq.; Appellee-Applicant is represented by Elizabeth K. Rattigan, Esq.; and

the Town is represented by William F. Ellis, Esq.

      The Town has moved to dismiss Questions 2, 4, 5, 6, and 7 of the Revised

Statement of Questions, and to dismiss Question 1 to the extent that it relates to the

Quechee Declaration of Covenants (but not to the extent it relates to the Quechee Lakes

Master Plan). Appellee-Applicant has also moved to dismiss Questions 1, 2, 4, 5, 6, and

7.

      In 1971 Appellee-Applicant Blanche S. Marsh acquired a so-called Farmstead

parcel, on Hillside Road in the Quechee Lakes Planned Development. It then consisted

of 5.67-acre lot and a 1-acre lot. The Quechee Lakes Planned Development received

municipal as well as Act 250 approval, including municipal approval of the Quechee

Lakes Master Plan in 1971 and in 1988. Neither the Declaration of Covenants for the


1  Please note that the correct docket number for this appeal is 135-7-08 Vtec, not the
2007 docket number that appears on some of the documents filed in this matter.
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Quechee Lakes Planned Development nor any specific deed restrictions have received

municipal approval in connection with approval of the development.

       The Quechee Lakes Master Plan defines a Farmstead parcel in § 3-3J as a “single

family parcel consisting of 2 lots and containing not less than a total of 4 acres.” In § 3-

3L it defines “Guest House” as a “non-rental accessory structure intended for

occupancy by family and friends.”

       In 1984, the Planning Commission approved the resubdivision of Ms. Marsh’s

Farmstead parcel into two lots, each consisting of approximately 3.3 acres in area. That

approval was not appealed and cannot now be contested in this Court under 24 V.S.A.

Chapter 117, either directly or indirectly.       24 V.S.A. §4472(d).     As of the 1984

resubdivision, Lot 11-1074A-000 (Lot A) contained an existing single-family dwelling

that had received a zoning permit in 1973, and Lot 11-1074B-000 (Lot B) was

undeveloped.

       After that date, Lot A was further developed with a detached accessory garage

structure, with a guest residential dwelling unit on its upper floor. The garage received

a zoning permit in 1985; the guest dwelling unit received a zoning permit in 1986.

These permits have not been provided from which the Court could determine if the

residential dwelling unit above the garage was approved as an accessory structure or

use. The 1986 approval of the guest apartment also was not appealed and cannot now

be contested in this Court under 24 V.S.A. Chapter 117, either directly or indirectly. 24

V.S.A. §4472(d).

       The present application proposes the construction of a single-family residence,

with attached garage and deck, on the undeveloped Lot B.

       Appellants appear to argue that, under the Quechee Lakes Master Plan and the

Quechee Lakes Covenants, a maximum of two dwelling units can be built on a two-lot

Farmstead parcel.    They argue that the single-family dwelling on Lot A and the

accessory dwelling unit (guest house) on Lot A should have been counted as the two
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single family residences allowed on the original lot, precluding construction of and

additional dwelling on Lot B.        They argue that the resubdivision of the original

Farmstead parcel into two equal-sized lots of over two acres each does not allow a guest

house as well as a single-family house to be constructed on each of the two resulting

parcels.

       The Environmental Court may consider provisions in deeds and private

covenants, but only as they relate to issues within the Court’s jurisdiction. For example,

the Court may consider whether the width of a particular deeded right-of-way meets

the minimum requirements of the zoning or subdivision ordinance. In a municipal

appeal such as the present case, this Court does not have jurisdiction to resolve

disputed property questions; it only has jurisdiction to determine whether a particular

proposal meets the requirements of the municipal zoning or subdivision ordinances, or

the conditions of other relevant permits or prior municipal panel or Environmental

Court decisions issued under 24 V.S.A. Chapter 117.           See, e.g., In re Boutin PRD

Amendment, No. 93-4-06 Vtec, slip op. at 3 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.),

aff’d, No. 2007-259, slip op. at 3 (Vt. Apr. 11, 2008) (unpublished mem.); In re Appeal of

Hildebrand, No. 228-12-04 Vtec, slip op. at 4 (Vt. Envtl. Ct. Oct. 13, 2005) (Durkin, J.),

aff’d, 2007 VT 5, 181 Vt. 568 (mem.); In re Appeal of Siegel, No. 258-11-00 Vtec, slip op.

at 2 (Vt. Envtl. Ct. Dec. 10, 2001) (Wright, J.), aff’d, No. 2002-039, slip op. at 3 (Vt. June

27, 2002) (unpublished mem.).

       In the present case, issues of whether the proposal meets the Quechee Lakes

Master Plan do relate to the Court’s jurisdiction over whether the proposal qualifies for

a zoning permit, because approval of the Quechee Lakes Master Plan was part of the

municipal approval of the development. By contrast, issues of whether the proposal

conflicts with certain deed restrictions or covenants does not relate to that jurisdiction,

as those deed restrictions or covenants were not part of the municipal approval of the

development, even if the development uses those covenants or deed restrictions
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internally to carry out the overall plan for the development. See Boutin, No. 93-4-06

Vtec, slip op. at 3 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.), aff’d, No. 2007-259, slip op. at

3 (Vt. Apr. 11, 2008) (unpublished mem.). Therefore, Questions 2 and 7 of the Revised

Statement of Questions must be dismissed, and those portions of Questions 1 and 4

relating to the Quechee Covenants must also be dismissed.

       The Town argues that Questions 4 and 5 call for an impermissible advisory

decision from the Court, because the present application for Lot B does not involve the

construction of a “guest house” or accessory dwelling unit. However, those questions

are not advisory because, under Appellant’s argument, the classification of the guest

house/accessory dwelling unit on Lot A affects whether the new single-family dwelling

now proposed for Lot B should be counted as an allowed second principal dwelling or

should be counted as a third principal dwelling. It is within this Court’s jurisdiction to

determine whether the Hartford Zoning Regulations, the state statute, and/or the

Quechee Lakes Master Plan provides for a guest house/guest quarters to be constructed

in or as an accessory structure, as well as the two single-family houses. Therefore the

remainder of Question 4 and Question 5 will not be dismissed.

       Questions 3 and 6 also will not be dismissed, as they relate to whether the two

lots allowed to be created from a Farmstead parcel, after the resubdivision, fall within

the provisions of § 4-2B of the Quechee Lakes Master Plan governing single family lots,

or whether lots originating from Farmstead parcels are excluded from those provisions.

       All that can be before this Court in this case is whether the new house proposed

for Lot B is allowed under the zoning ordinance and under any municipal approvals of

the Quechee Lakes Planned Development. The municipal approval of the Quechee

Lakes Planned Development requires the determination of whether the new house

proposed for Lot B conforms with the Quechee Lakes Master Plan. On the other hand,

any question regarding whether the proposal conflicts with the Quechee Lakes

Covenants or with individual deed restrictions is a matter for superior court.
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      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that the Motions to Dismiss are GRANTED in Part, as discussed above, and are

otherwise DENIED.

      The questions from the Statement of Questions remaining in this proceeding are

as follows, retaining their original numbering: Question 1, exclusive of the portion

following the phrase “Quechee Lakes Master Plan;” Questions 3 and 6, taken together

and not as a challenge to the 1984 approval of the resubdivision; Question 4, exclusive

of the final three words as to the Quechee Covenants; and Question 5.2 For ease of

reference, Appellants may file a Statement of Questions containing only these

remaining questions; however, please continue to refer to them by their original

numbering.

      It does appear to the Court that the questions not dismissed by the present order

are suitable to be determined by summary judgment, that is, that they probably do not

require a trial. To convert a motion to dismiss to a motion for summary judgment, it is

necessary to give the parties the opportunity to comply with V.R.C.P. 56. See V.R.C.P.

12(c); In re UVM Constr. & Landscape Permit, No. 169-8-08 Vtec, slip op. at 1 (Vt. Envtl.

Ct. Mar. 12, 2009) (Wright, J.). The parties have not so far provided either the Hartford

Zoning Regulations or the earlier ZBA or Planning Commission decisions on the

development as a whole.

       Accordingly, a telephone conference has been scheduled to establish a schedule

for such motions, or to determine whether such motions can be decided on the basis of

the present memoranda with additional affidavits and Rule 56 material, and also to




2 In connection with Question 5, please be prepared to address 24 V.S.A. § 4412(1)(E) in
any analysis of the Regulations’ provision or lack of provision for an accessory dwelling
unit.
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discuss the relative timing of this appeal and the related Superior Court litigation. (See

enclosed notice.)




      Done at Berlin, Vermont, this 17th day of March, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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