In re Appeal of Deptula

[22-May-2000]

                              STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                        }
  In re: Appeal of			}
         Edward Deptula			}	Docket No. 9-1-00 Vtec
                                        }
                                        }

            Decision and Order on Motion to Dismiss Town as Party

       Appellant Edward Deptula appealed from a decision of the Zoning Board
  of Adjustment (ZBA) of the Town of Montgomery granting a permit to
  Appellee-Applicant Joseph Nastasi to operate a machine shop.  Appellant
  represents himself; Appellee-Applicant also represents himself; the Town of
  Montgomery is represented by Amanda S.E. Lafferty, Esq.   Appellant has
  moved to dismiss the Town as a party.

       Appellant argues that the Town has no standing to participate as an
  interested party,  because neither the town plan nor a town ordinance is
  "at issue" in this case, citing Sabourin v. Town of Essex, 146 Vt. 419,
  420-21 (1985) and Rossetti v. Chittenden County Transportation Authority,
  165 Vt. 61, 66 (1990).  In those decisions, the Vermont Supreme Court ruled
  that a town may not bring an appeal challenging the wisdom of a zoning
  decision.  However, a  town may appeal (and may participate in an appeal
  brought by another) if there is a claim that the ZBA "exceeded its
  authority or misconstrued a bylaw provision." Rossetti v. Chittenden County
  Transportation Authority, 165 Vt. 61, 66 (1990).  The Court stated that
  "[w]ithout such a claim, we do not believe the bylaw was "at issue" as that
  term is used in 24 V.S.A. §4464(b)(2)."  

       With such a claim, therefore, a bylaw is "at issue" to give the Town
  standing as an interested person.  In the present case, Appellant claims
  that the ZBA misconstrued the bylaw's provisions defining "home occupation"
  and "light industry," and requests damages and court costs.  These claims
  give the Town standing to participate as a party in the appeal. 

       Accordingly, based on the foregoing, Appellant's Motion to Dismiss the
  Town as an Interested Party is DENIED.  We will hold a conference BY
  TELEPHONE in this matter on June 15, 2000 to discuss scheduling this appeal
  for a hearing.



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





  _________________________________________________
  Merideth Wright 
  Environmental Judge