                                    STATE OF VERMONT

                                ENVIRONMENTAL COURT

               In re: Appeal of Bernard Roy      }
               and Marjorie Gobrecht-Roy         }
                                                 } Docket No. 150-9-96 Vtec
                                                 }
                                                 }

                                       Decision and Order

Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of
Georgia denying their applications for conditional use approval, a variance, and a sewer permit.
Appellants are represented by Marsha Smith Meekins, Esq.; the Town is represented by Joseph
S. McLean, Esq. Predecessors in title Roderick and Lucille Kell initially entered their appearance
as interested persons, but have not actively participated.

The remainder of the merits on questions 2 and 3 of the Statement of Questions is scheduled to
be heard on May 1, 2002. The Court= s February 15, 2002 decision ruled that Appellants cannot
now argue that the change from camp use to year-round use in fact occurred earlier than the
enactment of the 1988 ordinance. The Court= s February 15, 2002 decision also ruled that A [a]s
the Supreme Court has ruled that Appellants= change of use as of 1993 obligated them to obtain a
permit in under the regulations in effect in 1993, we must proceed to determine Appellants=
application for a conditional use permit under the regulations in effect in 1993.@ The Town has
moved for reconsideration of this point, arguing that Appellants did not in fact file their
application until after the regulations had again changed.

The Town is correct and its motion for reconsideration is granted. In its February 15, 2002
decision, the Court had conflated two questions: whether the ordinance in effect as of the 1993
change in use required that change to be reviewed as a conditional use, and what ordinance was
in effect as of the date of Appellants= good faith application for such a permit. All that the
Supreme Court had decided was that, under the [1988] ordinance in effect as of the 1993 change
in use from seasonal to year-round primary residence use, A a change in use from a camp to a
single family dwelling must be reviewed and approved as a conditional use.@ The Supreme Court
did not address whether Appellants had made the sort of good faith application for such approval
under the 1988 ordinance to insulate them from being subject to the 1994 ordinance that had
taken effect when they ultimately did file their application in 1996.

The evidence showed and this Court found that Appellants asserted their position at the ZBA that
no permit was required for the change in use, sufficiently to raise that argument before this
Court, even though they had applied for the permit in 1996. That is, this Court concluded that by
applying for the permit in 1996, Appellants had not waived their argument that no permit was
legally required for the change in use.
However, the present question raised for reconsideration by the Town presents the converse
situation. Appellants could have applied for the permit in 1993 when the change in use took
place, filing the application under protest to reserve their argument that no permit was required.
Indeed, under 24 V.S.A. ' 4443(c) in effect at the time, Appellants could have filed their
application after the ordinance change was proposed, to preserve their rights under the older
ordinance. Because they did not do so, and did not apply for the permit until 1996, the ZBA (and
hence this Court in this de novo appeal) was and is obligated to apply the regulations in effect at
the time the application was filed.

Accordingly, the Town= s motion for reconsideration is GRANTED; the 1994 ordinance in effect
when the application was filed is the ordinance to be applied in consideration of the merits of this
appeal on remand.

Please advise the Court as soon as possible if this ruling affects the timing of the hearing on the
merits now scheduled for May 1, 2002.

Done at Barre, Vermont, this 15th day of April, 2002.




___________________
Merideth Wright
Environmental Judge
