                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT


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In re: Appeal of                    }
 Thomas J. Morse                    }      Docket No. 174-8-00 Vtec
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                           Decision and Order on Pending Motions

       Appellant Thomas J. Morse appealed from the July 19, 2000 decision of the Zoning
Board of Adjustment (ZBA) of the Town of Brighton, denying his appeal of a Notice of
Violation for operating a lodging establishment in a building in an Industrial zoning district.
The Town has not filed any enforcement action against Mr. Morse based on the Notice of
Violation. Appellant Morse has appeared and represents himself; the Town is represented
by Paul S. Gillies, Esq.


Procedural Status
       As well as filing the appeal in Environmental Court, which is the only court with
jurisdiction of the zoning appeal, Mr. Morse has filed a complaint against the Town and
certain named individuals, which he denominates as a Acountersuit,@ seeking money
damages in the amount of $125,000 for compensatory damages and an equal amount in
punitive damages. From the copies of materials sent to the Environmental Court, it
appears that this complaint was properly sent for filing to the Essex Superior Court, which
is the only court with jurisdiction of the damages claim. However, if it was in fact filed with
the Essex Superior Court, it has not yet been docketed there as a new case.
       In any event, Appellant Morse also has filed documents in Environmental Court
which appear to relate to both actions.           Therefore we must make clear that the
Environmental Court only has jurisdiction of Appellant Morse=s appeal of the Notice of
Violation. In the course of that appeal, the Environmental Court has authority to address
whether Appellant Morse is entitled to pre-existing non-conforming use status (sometimes


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called Agrandfathered@ status) for the lodging use at issue in this appeal, and whether
nearby uses have been unfairly Aspot-zoned@ residential or commercial.                  The
Environmental Court does not have authority to adjudicate a claim for money damages
against the Town; such a claim must be filed in Superior Court. Mr. Morse should address
the Superior Court directly to determine whether his complaint has properly been filed. We
are sending an informational copy of this order to the Essex Superior Court.
       We also must note for Mr. Morse=s assistance that the hearing before the
Environmental Court will be Ade novo;@ that is, the Environmental Court considers the
matter without regard to what was done by the Zoning Board of Adjustment. This means
that the Court will not consider what is stated in the ZBA=s findings of fact and conclusions
of law, unless one of the parties submits those findings in evidence at the hearing. This
also means that documents submitted to the ZBA are not in the Court record unless and
until one of the parties submits them in evidence at the hearing. The parties should
therefore be prepared to offer evidence regarding when the Industrial zone was enacted,
and what was the use made of the building just prior to that time. At the hearing (which will
be held in the Essex County Courthouse unless the parties prefer it to be heard in
Chittenden County) the Environmental Court will take evidence in the form of documents
offered by the parties and from witnesses who are present in the courtroom. Unless the
parties both agree to allow the submission of affidavits, the Court cannot accept affidavits
at trial (such as the ones referred to on page 11, last paragraph, of Appellant Morse=s
August 17, 2000 filing). If the parties file another motion for summary judgment, they
should consult V.R.C.P. 56 for the use of affidavits in connection with motions for summary
judgment.
       As in any litigation, each party must send copies to the other party of anything sent
to the Court. At the present time, the only persons who need to receive copies in the
Environmental Court proceeding are Mr. Morse and Mr. Gillies.


Request for Discovery
       Appellant Morse requested certain discovery from the Town. There is no indication
that the Town has failed to respond within the time allowed by the Vermont Rules of Civil

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Procedure (abbreviated V.R.C.P.), or that Mr. Morse is seeking any assistance from the
Court in obtaining discovery. Accordingly, this request will not be treated as a motion at
this time. As the Town is represented by an attorney, Mr. Morse should address any
requests for discovery or for documents to Mr. Gillies, not to any town official. If any
problems develop regarding discovery, the parties must comply with V.R.C.P. 26(h) before
bringing the matter to the attention of the Court.


Request for Dismissal
       As Appellant brought the appeal, the Court understands him to be requesting
dismissal of the underlying Notice of Violation rather than dismissal of the appeal.
However, the requirement that the Town send him the list of interested parties is a
requirement established only by rule, and not in the zoning statutes. V.R.C.P. 76(e).
Therefore it is not jurisdictional and neither the Notice of Violation or the appeal should be
dismissed if the Town had not complied. The motion to dismiss is therefore denied.
Further, Attorney Gillies= response makes clear that there are no other interested parties
which Mr. Morse is required to notify. However, the Town should have notified Mr. Morse
at the outset that there were no other interested parties other than himself.


Motion for Summary Judgment or Dismissal of the Notice of Violation
       Material facts are in dispute as to when the Industrial zoning went into effect, as to
the previous zoning classification of the property, as to when and to what extent the
property was used as a lodging establishment or rented out to private clubs prior to that
zoning change, and as to what the zoning ordinance provides. These facts must be
determined before the Court will be able to rule on whether the lodging use of the property
qualifies as a pre-existing, nonconforming use. It is possible that this missing information
could be provided by documents and affidavits, rather than by testimony at trial. Therefore,
the motion for summary judgment is denied without prejudice to its renewal in compliance
with V.R.C.P. 56.


Motion for AStay of Enforcement@

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      As no enforcement case has been brought, there is nothing pending in this Court for
this Court to stay. However, the motion is denied as moot without prejudice to Mr. Morse=s
renewing the motion or requesting other relief before this Court or the Superior Court to
allow him to reopen without risk of zoning penalties.   Meanwhile, we will expedite the
appeal in Environmental Court so that it may be resolved as soon as possible. We will
hold a telephone conference with the parties on Tuesday September 26, 2000 at noon.
The Court will place the calls; we will plan to reach Mr. Morse at 899-4668 unless he
advises the Court well in advance of the conference that he prefers us to use another
number.

      Done at Barre, Vermont, this 18th day of September, 2000.




                           _________________________________________________
                                Merideth Wright
                                Environmental Judge


cc:   Essex Superior Court (FYI - Attn. Judge Manley and Assistant Judges Hodgdon)
      Parties




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