Lauren Kolitch, attorney for the Buczkowskis, filed an opposition to that motion and her own cross motion for summary judgment a week later.
At issue in this case is whether the town erred, first in issuing a zoning permit for construction of a single family home, and second in refusing to act when Kolitch presented information showing that Beattie has no legal right of way or deeded access to the 40-acre parcel of land he owns. His land adjoins the Buczkowskis land on Old Talc Mine Road in Waitsfield.
HALT THE INSTALLATION
When the zoning permit was issued this winter, the Buczkowskis did not appeal it in the 15-day time period. To receive a zoning permit, a landowner must stipulate or show that he/she has deeded access or a legal right of way. If no right of way or access exists, the application for a building permit must go before the Development Review Board.
In May, Beattie made plans to bring a modular home onto the site, accessing his property via Old Talc Mine Road. Citing evidence of past notice of trespass and Beattie's lack of deeded access or legal right of way, Kolitch successfully brought court action to halt the installation of the house, and came back to the town to appeal the issuance of the zoning permit.
The town DRB declined to revoke the zoning permit, arguing simply that the 15-day appeal period has passed without appeal. Kolitch appealed to Environmental Court arguing that Beattie's permit was issued based on fraud, and citing a new Vermont statute, 24 V.S.A. 4455, that went into effect in June allowing for the revocation of zoning permits when issued based on fraud.
AUTHORITY TO REVOKE
Amanda Lafferty, the town's attorney, argued in an October 27 motion for dismissal that there was no timely appeal of the zoning permit and hence town officials have no authority to revoke Beattie's permit. She argued that Beattie has "a zoning permit to develop a single family dwelling if he has access to the lot from the private road known as Old Talc Mine Road."
Kolitch has also requested that the town not issue a certificate of occupancy, which Lafferty argued was an issue that is "not yet ripe." Lafferty also argued that Kolitch's appeal failed to demonstrate that Beattie had started land development on his lot. Lafferty argued that until Beattie requests a certificate of occupancy, the town cannot determine whether any land development commenced on his property is in compliance with his February 2009 zoning permit.
She continues with an argument that Beattie cannot be found in violation of the town's zoning bylaws because the Buczkowskis' appeals are related to the validity of the zoning permit.
"Nowhere in appellants' petitions do they claim that applicant had commenced land development on the subject lot, let alone land development without a permit. Therefore, the administrative officer had no basis to find Beattie in violation of the Waitsfield zoning bylaw," Lafferty concluded, asking that the appeal be dismissed.
REFERRED TO THE DRB
In her November 8 response, Kolitch provides extensive exhibits detailing the warranty deed for Beattie's property -- which spell out that there is no legal access or deeded right of way to the parcel. She argued that Beattie knew he had no access to the property when he applied for the zoning permit and argued that Waitsfield's zoning administrator knew that the town zoning ordinance requires a right of way or access or frontage on a public road. Absent those conditions, the application should have been referred to the DRB, Kolitch wrote.
Kolitch argued that because Beattie misrepresented his claim of access to the land, the permit issued by Waitsfield in February was "void ab initio" or not legally binding and useless. Kolitch noted that the DRB refused to hold an evidentiary hearing into the issue of misrepresentation of access to the land and further failed to comply with the state statute allowing/requiring revocation of permits issued based on misrepresentation.
Arguing that the Environmental Court is the proper venue for the issue of whether the town should have taken action on the issue of misrepresentation of access, Kolitch raises the issue of why the town is failing to act, given the new state statute and its interest in upholding its own zoning ordinance.
NEGATING PUBLIC NOTICE
As to the timeliness of the appeal, Kolitch counters the legal case cited by the town in arguing that the appeal was not timely.
"First, In re Ashline involved an adjoiner's failure to appeal a decision by the Board of Adjustment, not a failure to appeal an administrator's decision. Board of Adjustment hearings require notice to the public, a public hearing and a written decision with appeal rights identified therein. There is no such requirement when a permit, such as the one issued here, is granted by the administrator. Second, In re Ashline did not involve the additional fact, as here, that the administrator was supposed to refer the matter to a municipal body, the DRB, for review of state and local mandated access requirements, and failed to do so, thus negating the public notice and hearing requirements contained in the bylaws. Lastly, 24 V.S.A. 4455 has been enacted since the Ashline decision. Section 4455 specifically authorizes the 'municipality' to petition the court for revocation of a permit, such as Beattie's, that has been obtained on misrepresentation of material fact," Kolitch wrote.
To the issue of whether withholding a certificate of occupancy is or is not "ripe," Kolitch argued that the administrator and DRB refused to hear evidence regarding the construction and improvements Beattie had made on his land. She provides numerous exhibits detailing Beattie's construction of road improvements to his lot, construction of a driveway, installation of utilities, a septic system and a concrete foundation for a full basement and first floor. Further, Kolitch argues that because there is no notice of public hearing for issuance of a certificate of occupancy, her clients will not know if Beattie makes such a request.
In a cross motion for summary judgment, Kolitch asks the court to revoke Beattie's permit or to remand the matter to the town for a hearing on the Buzcowskis' request that the town and its DRB act in conformity with 24 V.S.A 4455 and petition the court to revoke the permit.
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