                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

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In re: Appeal of                    }
 David Jackson                      }      Docket No. 43-2-00 Vtec
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                         Decision and Order on Motion to Dismiss
                                                  1
       This is the third of three related appeals now pending in Environmental Court. In
Docket No. 43-2-00 Vtec, Appellant David Jackson appealed from a January 24, 2000
decision of the Zoning Board of Adjustment (ZBA) of the Town of Castleton. Appellant is
represented by John D. Hansen, Esq.; Appellees Gerald and Patricia McCue are
represented by E. Patrick Burke, Esq.; Interested Person Agnes Earls has appeared and
represents herself; and the Town is represented by John S. Liccardi, Esq.
       This appeal relates to Appellant=s application for approval of an as-built structure on
his property in Castleton. Appellees have moved to dismiss this appeal on the grounds
that Appellant=s application was incomplete and did not conform to the Zoning Regulations,
that it was submitted after the fact for a structure built in violation of the Zoning
Regulations, and that it violates 24 V.S.A. '4472(d) as a de facto appeal of the permit
issued in February 1998 and not appealed.
       The questions of whether the application was complete or conforms to the Zoning
Regulations are evidentiary questions which depend on material facts to be established at
trial. If the structure was constructed in violation of the February 1998 permit or the Zoning
Regulations, an enforcement action may be appropriate, but one has not been filed to
date. In any event, even if a notice of violation or an enforcement action is pending, that
       1
        The other two appeals are: Appeal of McCue, Docket No. 258-12-99 Vtec, in
which David and Gloria Jackson have filed a cross-appeal, and Appeal of Jackson,
Docket No. 165-9-99 Vtec.




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fact does not preclude an applicant from applying for approval of a structure as-built. The
merits of Appellant=s application, including the adequacy of the application, will be for the
de novo hearing now scheduled for July 7, 2000.
       The application for the structure as-built is not an impermissible challenge to the
February 1998 permit which was not appealed. An applicant is entitled to apply for and to
have the Zoning Administrator or ZBA rule on a successive application, as long as that
application differs materially from the prior application.     In determining whether the
successive application is permissible, it should not make any difference whether the prior
application was approved or denied.
       Accordingly, based on the foregoing, Appellees= Motion to Dismiss Docket No. 43-2-
00 Vtec is DENIED. It is consolidated with the other two appeals: Appeal of McCue,
Docket No. 258-12-99 Vtec, in which Mr. Jackson has filed a cross-appeal, and Appeal of
Jackson, Docket No. 165-9-99 Vtec. The merits of all three appeals are scheduled to be
heard on July 7, 2000. Any other pretrial motions should be filed on or before June 2,
2000, so that they may be briefed and decided before the scheduled hearing. For the
parties= information, any postponement of the scheduled hearing would result in a
rescheduled date after August 16, 2000.


       Done at Barre, Vermont, this 22nd day of May, 2000.




                            _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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