This summer the town began test drilling in the town right of way on that road, seeking sources of water for a municipal water source. A high yield test well was drilled in August. Prior to commencing drilling, the town held a public hearing on its plans to drill in the public right of way. At that hearing, state officials were present and discussed with the select board, Houston's attorneys and others the process by which public water sources are acquired and created.
While the town is drilling in the public (town controlled) right of way, it will need to acquire an easement or right of way from Houston to create the well-head protection zone it needs for its public water system. But before the town pursues state public water certification (and the easement or right of way from Houston) it opted to do the test drilling.
On October 26, Houston's attorney Paul Gillies asked town zoning administrator David Jescavage to provide a written decision on whether the town does or does not need a zoning permit to conduct the test drilling.
"I write on behalf of Virginia Houston, who owns land on which the town of Waitsfield has begun a water drilling operation, without any zoning permit.
"The town is not exempt from zoning. It must obtain a conditional use permit for this purpose, just as any other person. In that light, I ask that you investigate these actions, and issue a notice of violation against the Town," Gillies wrote in an October 26 letter.
Jescavage responded on November 3. He noted that he had reviewed the matter and concluded that a zoning permit is not required for the drilling of a well, regardless of the location.
"The drilling of the well itself does not constitute a change of use," Jescavage wrote in his reply to Gillies.
"It is my understanding that the town is still in the exploratory stages of a municipal water system and that, as of yet, a project does not exist that could be taken through the permit process. A number of significant issues need to be decided before the town could proceed with an application," he continued.
Gillies appealed that administrative decision from Jescavage on November 22. Appeals of administrative decisions such as Jescavage's decision would normally go first to the Zoning Board of Adjustment and then an appellant could ask for reconsideration if a decision deemed adverse it rendered. If pursued beyond the local level, an appeal would go to Vermont Environmental Court.
Jescavage, after receiving the appeal from Gillies, noted that appeals of decisions of an administrative officer (such as the zoning administrator) need to be filed within 15 days of the date of the decision. He said that he will bring the matter to the town zoning board of adjustment for their review and consideration.
Houston, after tapping into the aquifer on her land, went through a lengthy permitting process, seeking permits to truck water off the site for a commercial use. She thrice attempted to have the zoning changed so that commercial water extraction was deemed a use by right (not subject to town review) rather than a conditional use. She went through the conditional use review process for her project and did receive a permit for six round-trip truck trips per day to her well. She never used the permits.
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