STATE OF VERMONT
ENVIRONMENTAL COURT
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In
re: Murphy Conditional Use Application
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Docket No. 217-10-05 Vtec
(Appeal
of Murphy)
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Decision and Order on Motion to Dismiss
Appellants
Matt and Desiree Murphy appealed from a decision of the Zoning Board of
Adjustment (ZBA) of the Town of Bakersfield, rejecting their application for
conditional use approval of a motor vehicle repair home business. Appellants are represented by Paul S.
Gillies, Esq.; the Town of Bakersfield is represented by Michael S. Gawne,
Esq. The Town has moved to dismiss
the appeal on the basis that the application that is the subject of the appeal
is an impermissible successive application.
In
2004 Appellant Matt Murphy applied for conditional use approval to operate a
motor vehicle service facility from his residential property as a conditional
use. His cover letter for it
reflects that when he had applied in 2002 for a zoning permit to build the 32' x
58' garage to be used as a part-time home business, the zoning administrator had
not required an application for a conditional use permit to be made to the ZBA
for the business. The parties have not provided the complete circumstances of
the zoning administrator=s
handling of that earlier application in connection with the present appeal
(although it may relate to the merits of the enforcement case still pending at
Franklin Superior Court.)
The
Zoning Board of Adjustment (ZBA) denied the 2004 application on the basis that
Athere
is a chance that harmful waste may be discharged into a watercourse,@
Athe
character of the area would be adversely affected@
and Abecause
the Murphys have been operating for over two years without State required
permits.@ No party appealed; however, the notice
of decision informed the Murphys incorrectly that an appeal could be filed in
superior court, rather than environmental court.
The
Town then filed an enforcement action in Franklin Superior Court (Docket No.
S502-04 Fc) for violation of the requirement that Aa
motor vehicle service business located within the Rural [zoning] District . . .
must have conditional use approval@and
for storing non-operative vehicles visible from the public roads. By the late spring of 2005, the state
permit compliance issues had been resolved and the storage of unregistered
vehicles had also been cleaned up[1].
While that enforcement action was pending, and at the suggestion of the judge in
the Franklin Superior Court case, Appellants reapplied in October 2004 for
conditional use approval of the motor vehicle service use.
Under
24 V.S.A. '4470(a)[2]
(2004), the ZBA was entitled to reject a successive appeal without hearing, if
the issues Ahave
been decided in an earlier appeal or involve substantially or materially the
same facts by or on behalf of that appellant.@ However, the ZBA was obligated to
make findings of fact as to the basis for its rejection of the appeal.
Rather
than considering the conditional use approval application on its merits, and
apparently without taking evidence on whether any circumstances had changed, and
without making the required findings of fact, the ZBA denied what it
characterized as Appellants=
Asecond
request for second hearing,@
citing 24 V.S.A. 4470(b) and stating that Athe
conditions that existed at the first hearing have not changed.@
Governmental
bodies, even at the local level, are obligated to deal fairly with the citizens
who come before them. While the
ZBA=s
rejection of Appellants=
application out of hand does not rise to the level of estoppel, see,
e.g., In re McDonald=s
Corp.,
146 Vt. 380, 386 (1985); In re Lyon, 2005 VT 63, &31,
neither did it meet the requirements of 24 V.S.A. '4470(a)
or of the obligation of fair dealing.
At the very least, the ZBA should have made factual findings as to why no
circumstances had changed sufficiently to warrant consideration of
Appellants=
2005 application. It appears that
Appellants will be able to present evidence that their circumstances had changed
at least with respect to the risk of discharge into a wetlands, and compliance
with state permitting and reporting requirements. Moreover, it was not fair dealing for
the Town to bring an enforcement action in 2004 to require Appellants to obtain
a conditional use permit for their business, and then to reject out of hand
their subsequent application for the required permit.
Accordingly,
based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town=s
Motion to Dismiss is DENIED. It
will be for the hearing on the merits of the present case for the Court to
determine whether Appellants do or do not qualify for the conditional use
approval that they seek. We will
proceed to schedule a hearing on the merits of that application for some time in
March or April of 2006. However, if
the ZBA wishes to request a remand for it to reconsider its rejection of the
application, and to either make the factual findings required by '4470(a)
or to consider the application on its merits, it may do so under V.R.E.C.P.
5(i). Also, as discussed at the
conference, if the parties wish to transfer the enforcement case to this Court
to be heard together with this application, they should file the necessary
request with Franklin Superior Court as soon as possible. We will schedule a telephone conference
for mid-January (see enclosed notice) to determine the next appropriate steps in
this or in the consolidated cases.
Done
at Berlin, Vermont, this 22nd
day of December, 2005.
_________________________________________________
Merideth
Wright
Environmental
Judge