STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of David Siegel }

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Docket No. 258-11-00 Vtec

Order on Motion to Dismiss as Moot

Appellant appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of 

Duxbury upholding the enforcement action taken by the Zoning Administrator in a letter dated 

July 24, 2000. Appellant represents himself; Appellees Patricia DiRuocco and Jean Ruth 

Connolly are represented by Richard Darby, Esq. and Marc A. Weissman; the Town of Duxbury 

is represented by Steven A. Reynes, Esq. 

The Court issued a decision and order on a portion of the merits of this matter on November 9, 

2001, concluding that the zoning setback of 70 feet, measured from the center of the traveled 

way, did not apply to the location of Appellees= garage, as it was built adjacent to a segment of 

Town Highway No. 30 that was classified as a legal trail. In the course of its several decisions in 

this matter, the Court found that the right-of-way for Town Highway No. 30 was three rods (492

feet) in width. It appears from the surveyors= testimony in the first part of the case that the 

garage is located in part within the right-of-way.

The Court ruled that the May 1995 permit for the garage became final without appeal and could 

not be challenged in this appeal of the Zoning Administrator= s enforcement letter. The May 

1995 permit for the garage contained a sketch and a statement that all setbacks are met. The 

parties and the Court agreed to first hold a hearing on whether any zoning setbacks are 

applicable, and to reserve for a later hearing issues relating to whether the garage was 

constructed in the location shown on the plot plan sketch approved by the Zoning Administrator. 

As no zoning setbacks are applicable, the Court need not reach issues relating to whether the 

garage was constructed in the location approved by the permit stating > all setbacks are met.=

In the November 9, 2001 decision, the Court noted that, 

even if no setback must be met, the right-of-way of the trail remains three rods wide. Today= s 

ruling regarding the Zoning Ordinance does not resolve any dispute regarding the property rights 

of the parties, including those of the Town, to the use of the right-of-way of the trail, or whether 

Appellees= garage improperly encroaches on that right-of-way. Such a dispute may be within the 

jurisdiction of the Superior Court, but is beyond the jurisdiction of Environmental Court.

All the questions raised in the statement of questions have been addressed by the existing orders 

in this case. Appellant appears to believe that this Court can also address issues as to whether the 

garage encroaches in the town highway right-of-way. However, those issues are not the subject 
of the zoning ordinance and therefore do not come within the zoning enforcement powers of the 

zoning administrator. If construction of the garage within the town highway right-of-way 

infringes upon the Town= s rights to use that right-of-way, the public= s rights to use that rightof-way, Appellant= s rights to use that right-of-way, or the rights to use that right-of-way of 

purchasers of lots in Appellant= s subdivision, such rights are property rights not regulated by 

zoning and therefore within the jurisdiction of Superior Court and not this Court. 

Accordingly, the motion to dismiss the remainder of the appeal as moot is GRANTED. 

However, this dismissal is without prejudice to Appellant= s pursuing the question of 

construction within the right-of-way in any appropriate forum. 

Done at Barre, Vermont, this 10th day of December, 2001.

___________________

Merideth Wright 

Environmental Judge