                                  STATE OF VERMONT

                                 ENVIRONMENTAL COURT


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In re: Appeal of                   }
 George and Carole Trickett        }      Docket No. 114-6-00 Vtec
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                         Decision and Order on Motion to Dismiss

       Appellants appealed from a decision of the Zoning Board of Adjustment (ZBA) of the
Town of Orwell denying their appeal of a decision of the Zoning Administrator. Appellants
are represented by John Barrera, Esq.; Appellee Peter C. Ochs is represented by Peter F.
Langrock, Esq.; the Town is represented by John J. Zawistowski and Mark F. Werle, Esq.
The Town has moved to dismiss the appeal as untimely filed and for reasons of res
judicata; Appellee joins in the motion.
       Appellants live across the road from Appellee=s apple orchard and apple packing
operation. In 1997 Appellants filed a written complaint with the Town regarding, among
other things, Appellee=s violation of the Town=s Zoning Bylaws. They appealed to the ZBA
the Zoning Administrative Officer=s opinion letter finding no violations. The ZBA denied
their appeal in January 1998 and they did not appeal that decision to Environmental Court.
       On January 7, 2000, Appellants again wrote a letter to the Zoning Administrator
alleging violations of the Zoning Bylaws, and specifically requested that the Zoning
Administrator meet with them and view videotapes and a log of Appellee=s activities. The
letter did not request any specific enforcement action.      Appellants did not file any
mandamus action against the Zoning Administrator, or any enforcement action against
Appellees. In re Fairchild, 159 Vt. 125 (1992), compare Richardson v. City of Rutland, 164
Vt. at 422 (1995); and see 4 V.S.A. '4470(c). Rather, on March 9, 2000, by letter to the
ZBA, Appellants requested an Aappeal@ of the Zoning Administrator=s failure to respond to
the letter or take any action.
       On March 15, 2000, the Zoning Administrator issued a response, finding no


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violations on each of the issues and stating that he had previously ruled in 1997 on these
issues. By letter dated March 31, 2000, and stamped as received by the Town Clerk=s
office on April 3, 2000, Appellants filed an appeal to the ZBA of the Zoning Administrator=s
March 15 notice of decision.
       As noted in the ZBA=s April 25, 2000 notice of decision on the appeal1, the notice of
appeal of the Zoning Administrator=s decision to the ZBA was untimely filed. Such appeals
must be filed with the ZBA within fifteen days of the decision appealed from. March 30, a
Thursday, was the 15th day. Even if the filing date were March 31, it would have been
untimely, but in fact it was filed on April 3, which is clearly untimely. The fact that it was
untimely filed deprived the ZBA of jurisdiction to act on the merits of the appeal, and
deprives this Court of jurisdiction as well. 24 V.S.A. 4472.
       Accordingly, to the extent that Appellants= appeal purports to be filed from the ZBA=s
April 19, 2000 meeting as reflected in its April 25, 2000 decision, upholding the Zoning
Administrator=s March 15, 2000 decision, it was untimely and that portion of this appeal is
hereby DISMISSED as untimely.
       However, we also note from the parties= chronologies that on March 20, 2000, the
Acting Chairperson of the Board wrote a letter to Appellants informing them that the ZBA
will no longer hear complaints which have already been [decided] by any state agency
regarding Appellant=s agricultural operation.      There is no indication that this letter
represented any decision of the ZBA which is appealable under '4471; that issue has not
been briefed in the motions to dismiss. Appellants mailed to the ZBA a notice of appeal
from the March 20, 2000 letter and the appropriate filing fee on April 14, 2000. If the notice
of appeal sought to appeal to this Court from the March 20, 2000 letter, that appeal was
timely, as the statutory appeal period for appeal from a ZBA decision to the Court is 30
days. Accordingly, that portion of the present appeal is not dismissed at the present time.
However, we note that the scope of the present appeal is thereby limited to the matters

       1
         This document is signed only by the acting chair of the ZBA and describes
action that may have been taken by the ZBA at its April 19, 2000 meeting.




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covered by the ZBA Acting Chairperson=s March 20, 2000 letter, and not the Zoning
Administrator=s March 15, 2000 Notice of Decision.


Motion to Dismiss - Res Judicata
       The Town=s second argument is that the issues in the appeal have already been
addressed by an unappealed decision of the ZBA in January 1998. Documents or material
facts necessary to allow the Court to address this argument have not been provided, and it
may be necessary for the parties to file for summary judgment on this issue. However, the
fact that the issues in this appeal appear to be limited to at most those issues in the March
20, 2000 letter, may make such briefing unnecessary.           Accordingly, we will hold a
telephone conference on October 10, 2000 to discuss the next step in this appeal. The site
visit discussed at the prior conference will not be held on September 26, 2000, as the
Court will not be holding a hearing in Addison County that day. However, it may be
possible to schedule a site visit for October 11, 12 or 13; those dates will be discussed at
the conference.




       Done at Barre, Vermont, this 25th day of September, 2000.



                            _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




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