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STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket Nos. 69-6-17 Vtec

& 167-12-17 Vtec

Town of Westford v. Theodore Pelkey and 

 Michelle Pelkey 

 **************************************** 

In re Pelkey Zoning Permit Application 

DECISION ON THE MERITS 

Decision on the Merits

Theodore and Michelle Pelkey (hereinafter referred to as “the Pelkeys”) own and occupy 

a 11.32± acre parcel of land along Vermont Route 128 in Westford, Vermont (“the Property”). 

The Property is currently improved with a single-family residence, an attached garage, another 

garage that is not attached to their residence, and a separate, unattached accessory structure. 

When the Town of Westford Development Review Board (“DRB”) denied Appellants’ most recent 

application for authority to construct and use a new 8,000-square-foot garage structure, the 

Pelkeys filed a timely appeal with this Court. The Court assigned Docket No. 167-12-17 Vtec to 

that appeal. We coordinated the appeal with a zoning enforcement action, assigned Docket No. 

69-6-17 Vtec, which the Town of Westford (“Town”) brings against the Pelkeys, alleging that the 

Pelkeys deposited over 50 cubic yards of material and graded the Property without a permit. 

In their efforts to further develop the Property, the Pelkeys have become embroiled in 

multi-layered and multi-year disputes with officials from the Town. We detail those disputes 

below, to the extent that they have resulted in litigation before this Division of our Superior 

Courts and are relevant to the proceedings now before this Court. 

Procedural History 

The Pelkeys have been involved in several land use disputes concerning the Route 128 

Property. See In re Pelkey Final Plat Major Subdivision, Nos. 172-12-12 Vtec, 30-3-12 Vtec (Vt. 
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Super. Ct. Envtl. Div. Dec. 31, 2014) (Durkin, J.); Pelkey Subdivision Amendment, No. 119-9-6 Vtec 

(Vt. Super. Ct. Envtl. Div. June 21, 2017) (Durkin, J.). 

Both the DRB and this Court have previously reviewed several municipal land use 

applications concerning the Pelkeys’ Route 128 Property. For this Court, those reviews began in 

2012, when the Pelkeys filed applications for preliminary and final plat approvals for their prior 

development proposals. The Pelkeys had hoped to subdivide their property into two lots, with 

the rear lot hosting the existing buildings on their property (identified as Lot 2) and the front lot 

to host a new 4,000-square-foot building (identified as Lot 1). To accomplish this development 

plan, the Pelkeys submitted subdivision, conditional use, site plan review, and planned unit 

development (“PUD”) applications. Those applications resulted in approvals issued by this Court, 

with conditions. See Pelkey Final Plat, Nos. 172-12-12 Vtec, 30-3-12 Vtec (Dec. 31, 2014).1 

However, at the time of our most recent trial, we were advised that the Pelkeys had decided not 

to proceed with that subdivision and development.2 

More recently, the Court considered another appeal brought by the Pelkeys from a DRB 

denial of their application to amend the two-lot subdivision that this Court approved on 

December 14, 2014. As the Pelkeys and the Town were preparing for trial, the parties reached 

an agreement that resolved all of their disputes in that appeal. Their agreement was 

memorialized in a Corrected Stipulated V.R.C.P. 58 Judgment Order. See Pelkey Subdivision 

Amendment, No. 119-9-16 Vtec (June 21, 2017).3

 

1

 Docket No. 30-3-12 Vtec concerned the Pelkeys’ application for preliminary subdivision plat approval. 

Docket No. 172-12-12 Vtec concerned the Pelkeys’ application for final plat approval. 

2

 The Pelkeys represented that they were unable to proceed with those subdivision and development plans 

because the DRB Chair refused to sign a mylar copy of the approved subdivision plat in a timely manner. 

3

 The original Stipulated Judgment Order was issued on January 18, 2017. The Pelkeys thereafter filed a 

motion for relief from the original Judgment Order, due to the need for a specific reference in the Judgment Order 

to a site plat prepared by a licensed land surveyor. For this reason, the Court granted the Pelkeys’ motion and issued 

the Corrected Stipulated V.R.C.P. 58 Judgment Order on June 21, 2017. 

This procedural history is more fully explained in an Entry Order the Court recently issued, denying the 

Pelkeys’ additional motion for further relief. See In re Pelkey Subdivision Amendment, No. 119-9-16 Vtec (Vt. Super. 

Ct. Envtl. Div. June 28, 2019) (Durkin, J.) (noting that in support of the original Stipulated Judgment Order, “the 

parties had failed to provide the Court with a site plat that was prepared and certified by a licensed land surveyor. 

State law directs that only a certified site plat can be accepted for recording in a town’s land records. Appellants 

proposed that this deficiency could be corrected by the Court issuing a Corrected Stipulated Judgment Order, with 
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In the present zoning enforcement complaint in Docket No. 69-6-17 Vtec, the Town 

alleges that the Pelkeys have “commenced development” without the proper permit by bringing 

gravel and fill onto their property in excess of 50 cubic yards per year, and leveling the gravel and 

fill in a building area and as part of a proposed access drive. The Town asserts that each of these 

actions constitutes land development that requires a zoning permit. The Pelkeys dispute that 

they have committed the complained-of violations. When the parties could not reconcile their 

differences, the Town served the Pelkeys with a notice of alleged zoning violation and instituted 

a municipal enforcement action. 

The Pelkeys’ appeal from the DRB’s denial of their zoning permit application in Docket 

No. 167-12-17 Vtec concerns the Pelkeys’ goal of constructing an additional garage, access drive, 

and parking area on the portion of the Property closest to Vermont Route 128. After the Town’s 

Zoning Administrator and DRB denied their application, the Pelkeys filed a timely appeal with this 

Court. 

Also in Docket No. 167-12-17 Vtec, the Pelkeys assert that the Corrected Stipulated 

V.R.C.P. 58 Judgment Order in Docket No. 119-9-16 Vtec required the Zoning Administrator to 

automatically grant their pending application for a zoning permit. We address these claims in 

detail in the Conclusions of Law section below. 

The Pelkeys were assisted in these coordinated proceedings by their attorney, Brian P. 

Monaghan, Esq. The Town was assisted by its attorney, John H. Klesch, Esq. No other party 

appeared or participated in either of the coordinated proceedings. 

Based upon the credible evidence presented at the trial on these coordinated Dockets, 

including that which was put into context by a site visit the Court conducted in connection with 

the 2012 appeal, the Court renders the following Findings of Fact, Conclusions of Law, and Order, 

together with a Judgment Order that accompanies this Decision. 

 

 

a certified plat prepared by a licensed land surveyor attached as Exhibit B. The parties’ original non-certified plat 

remained attached to the Corrected Order as Exhibit A.”). 
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Findings of Fact 

I. The Pelkey Property and Surrounding Neighborhood 

1. The Pelkeys reside on an 11.32± acre parcel of land that they own at 2189 Vermont Route 

128 in Westford, Vermont. The Property is currently improved with a single-family residence, an 

attached garage, another garage that is not attached to their residence, and a separate, 

unattached accessory structure. 

2. In the vicinity of the Pelkey Property, Vermont Route 128 travels in a general north/south 

direction. 

3. The Pelkeys’ home is set back about 350 feet from the easterly edge of Route 128. Their 

driveway travels in a general east/west direction from Route 128 to the front of their attached 

garage. The southerly side of the driveway is located about 25 feet from the Property’s southerly 

boundary. 

4. The area in front of the Pelkey home, just east of Route 128, has been open land that was 

grassed and undeveloped. It was this area that the Pelkeys proposed to subdivide into two lots 

in 2012, with the front lot along Route 128 consisting of 2± acres, identified as Lot 1, and upon 

which the Pelkeys once proposed to construct a 4,000-square-foot building that this Court 

approved in its 2014 Merits Decision, referenced above. 

5. The Property is located in the Rural 5 Zoning District (“R-5 District”). The density within 

this zoning district is principally limited to one dwelling unit per five acres according to Section 

242.A of the Town of Westford Land Use and Development Regulations, amended February 18, 

2016 (“2016 Regulations”). 

6. Mr. Pelkey owns and operates several businesses, including an excavation/contracting 

business. Mr. Pelkey sometimes stores some of his excavation equipment in the second, 

unattached garage and in the accessory structure on the Property, as part of their home 

occupation. Mr. Pelkey also uses the second garage to store some of his personal equipment and 

“toys.” 

7. This Court rendered detailed Findings of Fact in its Merits Decision on the Pelkeys’ 2012 

subdivision and development applications. Certain Findings detailed the character of the Pelkeys’ 

Property and their surrounding neighborhood. Since we received no evidence that changes have 
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occurred to the Pelkeys’ Property (other than those complained of in the Town’s enforcement 

action) or the use of nearby properties, we rely upon and incorporate our prior Findings in 

considering the current proceedings. See Pelkey Final Plat, Nos. 172-12-12 Vtec, 30-3-12 Vtec at 

3-4, 8, 9-11 (Dec. 31, 2014). 

II. The Fill and Excavation Activities that Led to the Town’s Enforcement Complaint 

8. Mr. Pelkey enjoys using his excavation equipment at his home to move and reshape the 

gravel, fill, and soil on the Property. His grandson sometimes helps Mr. Pelkey work the soil with 

his equipment. To complete this work, Mr. Pelkey often brings fill and soil onto the Property. 

9. In particular, beginning on or before May 9, 2017, Mr. Pelkey began bringing large 

amounts of gravel, fill, and other earthen material onto the Property and depositing it to the 

north of the driveway and in the vicinity of the designated building area for the former Lot 1. 

10. On or about May 22, 2017, Mr. Pelkey brought additional large quantities of gravel and 

fill onto the Property and also caused excavation equipment to be brought in. He began using 

the equipment, with the help of others, to spread and move the fill, gravel, and other earthen 

material on and around the area once described as Lot 1. The fill and excavation work largely 

occurred in a portion of the former Lot 1 but was not limited to that area. 

11. These fill and excavation activities appeared designed to prepare the site for development 

of a proposed building on the front portion of the Property, at a time when the Pelkeys did not 

have a permit or authority to conduct further development on the Property. 

12. More specifically, the fill and gravel had been spread in a manner to level off a possible 

building site and to prepare an additional driveway or access way to the potential building site 

from the existing home driveway. There was also work done to expand the existing home 

driveway. Mr. Pelkey confirmed that he did this work so that the driveway would be sufficient 

to turn around trucks and trailers he would bring onto the Property. 

13. Photos depicting the piles of gravel and fill deposited on the Property were admitted at 

trial as Town Exhibit K. They accurately depict the fill that Mr. Pelkey had brought onto his 

Property and later spread and graded on his Property during various times in May 2017. 

14. Town officials received one or more complaints concerning what was perceived to be 

unlawful earthen deposits, excavation work, and development on the Property. 
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15. Zoning Administrator Kate Lalley investigated those complaints. Ms. Lalley took the 

photos admitted as Exhibit K. In her first visit to the Property, Administrator Lalley viewed a pile 

of fill and gravel that she determined was not in excess of 50 cubic yards. However, on her return 

to the Property on about May 23, 2017, Ms. Lalley observed that additional fill and gravel had 

been deposited on the Property. Due to her prior experience as a zoning administrator and 

landscape architect, Administrator Lalley credibly determined that the total amount of fill 

deposited on the Property during the month of May 2017 was in excess of 50 yards. 

16. In response to Interrogatories that were admitted at trial as Town Exhibit F, Mr. Pelkey 

admitted that between March 29, 2017, and May 23, 2017, he brought more than 50 cubic yards 

of fill or other earthen materials to the Property. 

17. Mr. Pelkey disputed the Administrator’s estimate of the amount of fill and gravel he had 

brought on the Property in May 2017, but he could not, or would not, provide his own estimate 

of the amount of fill and gravel brought in. The Court determined that Ms. Lalley’s testimony 

and estimate was more credible than that of Mr. Pelkey, and therefore finds that the amount of 

fill and gravel brought onto the Property in May 2017 was in excess of 50 cubic yards. 

18. Administrator Lalley then sent a letter to Mr. and Mrs. Pelkey entitled “NOTICE OF 

ZONING VIOLATION” detailing what she had observed or was otherwise brought to her attention 

concerning the bringing of gravel and fill onto the Property in excess of 50 cubic yards, and 

spreading the fill and gravel in “a large rectangular area” so as to level off and cover that 

rectangular area, all of which constituted “land development,” prior to obtaining a permit, as 

required by the 2016 Regulations. A copy of Administrator Lalley’s letter, dated May 23, 2017, 

was admitted at trial as Town Exhibit I. That letter is hereinafter referred to as “the NOV.” 

19. In the NOV, Administrator Lalley specifically identified the activities that she determined 

were zoning violations and directed the Pelkeys to immediately cease their land development 

activities. The NOV also informed the Pelkeys that they “ha[d] seven (7) days from the date of 

this notice to discontinue these violations and take appropriate remedial action,” including 

returning the site to the condition it was in before the development work began. 

20. Administrator Lalley concluded her NOV by notifying the Pelkeys that if they “failed to 

accomplish the actions directed . . . within seven (7) days . . ., then beginning on the eighth (8) 
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day . . . [they] may be subject to a fine of up to $200.00 per day for each day that each violation 

continues” and that the Town may commence an enforcement action against them. 

21. Finally, the NOV provided notice of the Pelkeys’ right to appeal to the DRB, as long as their 

appeal was filed within 15 days. 

22. There was no evidence presented of the Pelkeys bringing additional gravel or fill onto 

their Property after the NOV, or of continuing to use excavators to move fill and gravel on their 

Property. However, the Pelkeys chose not to remove the unpermitted fill and gravel from the 

Property. They also chose not to return the Property to its original condition, as directed by the 

NOV. 

23. On or about May 30, 2017, Mr. Pelkey contacted the Zoning Administrator to advise her 

that he was going forward with the development of his new building site, and that he had 

scheduled a concrete contractor to pour a slab for his new building in the area of the former 

Lot 1. The Zoning Administrator advised Mr. Pelkey that his planned further development of the 

site would be a further violation of the Regulations and would “only make matters worse” for 

him. Mr. Pelkey became angry and replied to the Administrator: “I’ll see you in Court.” 

24. The Pelkeys chose not to appeal the NOV and allowed the time in which they could appeal 

the NOV to pass. The Town filed a zoning enforcement complaint with the Court on June 1, 2017, 

based upon the unappealed NOV. 

25. The Town was concerned that the Pelkeys would proceed with the pouring of concrete 

for their proposed building prior to receiving a zoning permit that authorized that development. 

So, with its complaint, the Town also filed motions for a preliminary injunction and a temporary 

restraining order. Those motions became moot when the Pelkeys volunteered to cease work on 

the Property. 

III. The Pelkey Zoning Permit Application 

26. Sometime in April or May 2017, the Town gave notice that an amendment had been 

adopted to its Land Use and Development Regulations, and that the amendment would go into 

effect on July 27, 2017. Those amended Regulations are hereinafter referred to as the “2017 

Regulations.” 
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27. On July 10, 2017, the Pelkeys’ engineer, Jeffrey Kershner, submitted a zoning permit 

application on the Pelkeys’ behalf. Copies of that application and attachments were admitted at 

trial as Pelkey Exhibit 2 and Town Exhibit J. The application form describes the proposed new 

building as an 8,000-square-foot garage structure. An unsigned site map attached to the 

application depicts a garage building and a large “Proposed Gravel Drive.” This site map does not 

give the dimensions of the garage or the driveway, nor does it depict parking spaces. 

28. At trial, Mr. Kershner presented a revised site plan embossed with his engineer’s seal as 

an act of certification, which provides more detail than the site map attached to the application. 

A copy of Engineer Kershner’s site plan was admitted at trial as Pelkey Exhibit 4. It details the 

dimensions of the proposed garage as 80’ by 100’ (totaling 8,000 square feet), includes 

topographical information, and depicts the existing Pelkey home, attached garage, unattached 

garage, and accessory structure. Engineer Kershner’s site plan does not include the dimensions 

of the proposed drive to the building and does not delineate parking spaces. 

29. While the site plan does not include the driveway dimensions, the credible evidence at 

trial revealed that the driveway would encompass a total area of 13,000+ square feet. 

30. By comparison, the Pelkey home is much smaller than the proposed garage. The home 

measures 28’ by 52’ and therefore encompasses a 1,456- square-footprint and 2,360 square feet 

of interior space, including the attached garage The home is a Cape-style home (without second 

floor dormers), whereas the proposed new garage may be approximately 35 feet in height at its 

peak. 

31. Pelkey Exhibits 7-1 through 7-8 provide demonstrations of what the proposed additional 

accessory structure may look like, once construction is completed. Screening is to be provided 

by landscape plantings, as depicted in Exhibits 7-5 through 7-8, but the actual plantings will not 

reach the height and fullness of the trees depicted in the Exhibits for as many as ten years or 

more. 

32. Exhibits 7-9 through 7-15 depict nearby properties that have both residences and 

unattached garages or accessory structures. We note that, with one exception, none of the 

nearby accessory structures are as large as the 8,000-square-foot structure that the Pelkeys 
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propose and that none of the accessory structures, again with one exception, are located so 

prominently in the front area of the respective property. 

33. The proposed garage accessory structure, due to its height, size, and location on the lot, 

features much more prominently on the Property than the Pelkey residence. Due to the current 

design and location of the proposed structure, the Pelkey residence will actually appear to be 

subordinate and incidental to the proposed garage structure. 

34. Given the presence of the unattached garage and accessory hoop house that already exist 

on the Property, it will be difficult, if not impossible, for the average observer to identify the 

proposed garage structure as an incidental and subordinate accessory structure to the residence. 

35. The Pelkeys plan to install exterior lighting for the proposed structure that will be similar 

in scope to exterior lighting on an average home. The lighting that they propose was not 

otherwise detailed. 

36. Up to ten vehicles will be parked in undefined locations on the proposed gravel drive. 

37. There will be no outdoor storage except a small trash dumpster on the east side of the 

proposed garage, facing the residence. 

38. The Pelkeys pledge to install a silt fence and other erosion control measures that comply 

with the Town of Westford Stormwater Management Low Impact Development practices and 

the Low Risk Handbook. 

39. When the Pelkeys’ application was submitted to the Zoning Administrator, it was 

substantially identical to the application presented at trial, albeit with some more detailed 

supporting documents, such as the engineer-certified site plan and the depictions of the 

proposed structure and landscaping. 

40. Mr. Pelkey initially refused to disclose the use to which he intended to put this new 

garage. Engineer Kershner referenced Mr. Pelkey’s mono-filament and tanker inspection 

businesses that he currently operates in a rented commercial building in nearby Swanton, 

Vermont, and that it was Mr. Pelkey’s desire to some day move these businesses to the Property, 

so that he would no longer have to pay rent and so that his businesses would be adjacent to his 

home. 
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41. Engineer Kershner advised that seeking a zoning permit for the proposed garage was a 

“baby step” towards Mr. Pelkey’s long-range plans for the Property. 

42. Mr. Pelkey later asserted that he now regards the proposed garage as an “accessory 

structure” to his home, in addition to the accessory structure and garages he already has on his 

Property. 

43. Mr. Pelkey at times stated that he would use this new accessory garage structure in 

connection with his existing home occupation. However, his pending application makes no 

reference to and does not seek approval for a home occupation use. 

44. Mr. Pelkey already is permitted for a separate home occupation use, which is housed in 

the existing accessory structure. 

45. Alternatively, Mr. Pelkey suggested that he intends to use this new accessory garage 

structure to store personal items and equipment from his home occupation, including equipment 

that he currently stores in the existing accessory structure, which is sometimes referred to as a 

“temporary hoop house.” 

46. Mr. Pelkey first installed the temporary hoop house on the Property sometime in 2009; 

he did so without first securing a zoning permit. When his hoop house installation was brought 

to the prior zoning administrator’s attention, she issued a notice of alleged zoning violation on 

November 12, 2009. A copy of that notice was admitted at trial as Town Exhibit S. 

47. Mr. Pelkey chose not to file a timely appeal from the November 2009 notice of violation. 

48. He later submitted an application for the hoop house to be used as an accessory structure 

for his home occupation. That application was approved on May 3, 2010, by the then-zoning 

administrator. A copy of that permit approval was admitted at trial as Town Exhibit C. At some 

point this hoop house was referred to as “temporary,” but it has remained in place for nine years. 

The Town approval does not require it to be taken down. 

49. While the current application does not specify the 8,000-square-foot garage’s intended 

use, Mr. Pelkey advised the Zoning Administrator that he intended to use it to host a home 

occupation. He did not provide any details as to what type of home occupation would occupy 

the new garage structure. 
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50. The Administrator reviewed the application for conformance with the Regulations and 

advised Mr. Pelkey that she could not approve the application as presented. She provided the 

Pelkeys with a written explanation for the six reasons why she could not approve the application. 

Those six reasons are detailed in a note attached to her application denial form. See Town 

Exhibit G at 2. 

51. In summary, the Zoning Administrator listed the following reasons for her denial of the 

Pelkey zoning permit application: 

1. The 2017 Regulations4 require any type of home occupation to be operated in either 

a portion of a residence or an accessory structure.5

2. The proposed garage structure is not “incidental and subordinate in size and overall 

appearance to the” Pelkeys’ residence, as required to be accessory pursuant to the 

2017 Regulations.6 

3. The application does not comply with 2017 Regulations §§ 301 and 330 because it (1) 

fails “to describe the actual use . . . [of the] home occupation, . . . [or] that the 

occupation is customary in residential areas, will not change the character of the area 

and complies with the applicable standards”; and (2) fails to “demonstrate that the 

proposed home occupation will operate within the limits of the Performance 

Standards . . . .” 

4. The site plan does not comply “with any of the Site Design & Engineering Standards in 

Chapter 320 of the Regulations, as required by Section 421.A(1) of the Regulations.” 

5. “Applicants have neither submitted copies of any . . . [state required] permits or 

approvals, nor demonstrated that the State does not require any other permits or 

approvals” which was requested and required by the Zoning Administrator. 

6. Applicants “fail to demonstrate that the proposed garage building and home 

occupation meet the Planning and Design standards for development in the Rural 5 

District.” 

 

4

 The parties dispute whether the 2016 Regulations or the 2017 Regulations apply to the Town’s 

enforcement action or the Pelkeys’ permit application. We address this dispute in our Conclusions of Law section, 

below. 

5

 While not explicitly stated, the Administrator’s language seems to question the propriety of there being 

more than one accessory home occupation structure on one property. 

6

 Both versions of the Regulations include identical definitions for “Structure, Accessory” and for the 

regulation of home occupations. See § 510(18) and § 301 et al., respectively. 
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52. When the Zoning Administrator called Mr. Pelkey to advise him that she felt that she was 

unable to grant his permit application, he advised her that he planned to nonetheless go ahead 

with the construction of the 8,000-square-foot structure immediately and without a permit. 

53. The Pelkeys thereafter appealed the Zoning Administrator’s denial of their application to 

the DRB. When the DRB also denied their application, the Pelkeys appealed to this Court.

IV. The Town’s Claims for Injunctive Relief and Fines 

54. In response to the Pelkeys’ zoning violations, as detailed in the NOV, the Town requested 

assistance from its lawyers to prepare an enforcement complaint, to strategize how best to 

convince the Pelkeys to comply with the NOV and Regulations, and to prosecute the Pelkeys, 

should they choose not to comply. 

55. The Town attorneys detailed the time and expenses incurred in their efforts to respond 

to the Pelkeys’ zoning violations. The attorneys were careful to maintain records for their time 

and expenses incurred for the zoning violations separate from any time and expense they were 

asked to incur in response to the Pelkeys’ various permit application appeals, such as those in 

Docket Nos. 119-9-16 Vtec and 167-12-17 Vtec. 

56. Copies of the attorneys’ detailed billing statements, with confidential information 

redacted, were admitted at trial as Town Exhibit H. A summary of those billing statements was 

admitted at trial as Exhibit Y. 

57. The Selectboard Chair credibly testified that the Selectboard reviewed their attorneys’ 

billing statements concerning the enforcement actions against the Pelkeys, found those billing 

statements to be reasonable, and authorized their payment. No credible evidence was presented 

to contradict the Selectboard Chair’s testimony on these points. The total of these attorney 

billings is $10,294.98 through the billing period ending in February 2018. The Court concludes 

that these attorneys’ fees were reasonable for the services performed, and that there were 

further fees not detailed that were incurred and paid to respond to the Pelkeys’ pre-trial filings, 

and to prepare for and prosecute the trial. 

58. As of the last day of trial testimony, the Pelkeys had still not removed the fill and gravel 

in excess of 50 cubic yards that they caused to be deposited and excavated on their Property in 

the period lasting from March to May 2017. They have failed and refused to return the Property 
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to the condition it existed in before they conducted the unpermitted work in May 2017, and they 

have failed to apply for or receive any permits that authorized the fill deposits or excavation 

work. 

59. The Pelkeys’ non-compliance with the NOV began on May 31, 2017, which marked the 

eighth day after the NOV was issued. Given that the Pelkeys’ non-compliance continued through 

the last day of trial (January 30, 2019), their zoning violations have continued for a total of 610 

days.7 

Conclusions of Law 

We first address the legal claims presented by the Town in its zoning enforcement 

complaint. We follow that analysis with a review of the Pelkeys’ claims in support of their zoning 

permit application. Finally, because we determine that the Pelkeys have committed the zoning 

violations claimed by the Town, and conclude that the Pelkeys have failed to present sufficient 

evidence to show that their zoning permit application complies with all the applicable provisions 

of the Regulations, we also conclude that the Town is entitled to injunctive relief and fines. 

But even before that, we address the parties’ dispute as to which version of the 

Regulations governs the Town’s zoning enforcement claims and which govern the Pelkeys’ permit 

application. When the Town filed its enforcement complaint on June 1, 2017, the Regulations 

then in effect were those that were last amended on February 18, 2016 (which we have referred 

to as the 2016 Regulations). A copy of the 2016 Regulations was admitted at trial as Pelkey Exhibit 

15. We therefore conclude that the 2016 Regulations were those that were in effect at the time 

that the Town filed its enforcement complaint and that the 2016 Regulations therefore govern 

the Town’s enforcement complaint. We note that the difference between the 2016 and 2017 

Regulations appears to be inconsequential with respect to the enforcement action, as the 

applicable provisions are identical. 

 

7

 However, we again note that we received no evidence that the Pelkeys continued to bring additional fill 

and gravel onto their property after issuance of the NOV. 
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Sometime in May or June 2017, the Town gave notice that the Regulations had been 

further amended.8 The amended version went into effect on July 27, 2017. A copy of the 2017 

Regulations was admitted at trial as Pelkey Exhibit 12 and Town Exhibit D. 

We follow a general rule that the governing zoning regulations are those that were in 

effect when a complete application was filed. In re Times & Seasons, LLC, 2011 VT 76, ¶ 12, 190 

Vt. 163 (citations omitted). However, when a Vermont municipality amends its zoning 

regulations, our Legislature has enacted an exception to the general rule. When an ordinance 

amendment is adopted and goes into effect within 150 days of the notice of its “first public 

hearing . . . [concerning the proposed zoning amendments], the administrative officer . . . shall 

review any new application filed after the date of the notice [of first public hearing] under the 

proposed bylaw or amendment and applicable existing bylaws and ordinances.” 24 V.S.A. 

§ 4449(d) (emphasis added); see, e.g., In re Cushing Family, LLC Site Plan Application, No. 61-4-

09 Vtec, slip op. at 6-7 (Vt. Envtl. Ct. Dec. 17, 2009) (Wright, J.). This provision contains two 

caveats that are not relevant here. 

With this statutory mandate in mind, and given that the 2017 Regulations went into effect 

on July 27, 2017, and that the proposed amendment was noticed before the Pelkeys’ application, 

we conclude that the Pelkeys’ application for a zoning permit is governed by the 2017 

Regulations. 

The parties’ dispute concerning the governing Regulations initially appeared confusing, 

since most or all of the substantive provisions that governed the parties’ claims appeared 

identical in the 2016 and 2017 Regulations. Compare Chapters 240 (R-5 District), 300 (Home 

Occupations), 420 (Site Plan Review) and 510 (Definitions) in the 2016 and 2017 Regulations. 

However, one distinction became clearer upon review of the parties’ post-trial briefs: the 2017 

Regulations contain a directive that the Zoning Administrator “must not issue a zoning permit for 

any land use or development” prior to the DRB granting site plan approval, “. . . except for 

(1) [c]onstruction of . . . any development ancillary to a single-family . . . dwelling, including, but 

 

8

 The Town represented that the amendment that distinguishes the 2017 Regulations was noticed “about 

100 days” before the July 27, 2017 effective date. Since no testimony or other evidence was offered to contradict 

this representation, we have adopted it in our Factual Finding ¶ 26. 
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not limited to an accessory dwelling or home occupation that does not include a structure of 

more than 1,000 square feet.” 2017 Regulations § 421.A. The 2016 Regulations include a nearly 

identical exception that does not limit the exception to an accessory dwelling or home occupation 

of less than 1,000 square feet. See 2016 Regulations § 421.A. The consequence of this difference 

is that, under the 2017 Regulations, the Pelkeys’ application involving an 8,000-square-foot 

structure requires site plan approval from the DRB before the Zoning Administrator can issue a 

permit. The 2016 Regulations would exempt the structure from site plan review, regardless of 

its size. 

The Pelkeys assert that the 2016 Regulations govern all legal issues presented. The Town 

appears to agree that its enforcement complaint is governed by the 2016 Regulations. However, 

for the reasons stated above, we conclude that under 24 V.S.A. § 4449(d), the 2017 Regulations 

govern the Pelkey application now before this Court. 

Having so concluded, we now discuss the merits of the Town’s enforcement action, the 

Pelkeys’ permit application, and the Town’s request for relief. 

I. The Town’s Enforcement Action 

The 2016 Regulations specifically direct that “[a]ll development and subdivision of land 

must conform to these regulations” and that any development “requires a zoning permit issued 

by the Administrative Officer unless it is specifically exempted in Chapter 110.”9 2016 

Regulations §§ 103.A, 103.B. Some of the specific types of development requiring a permit 

include “[m]ining, excavating, filling, or grading land.” 2016 Regulations § 103.A(2). 

We are further guided in our analysis by an exemption to the permit requirement, which 

excludes the following: 

Minor grading, filling, excavating, clearing, or similar types of land disturbance . . . 

that is incidental to a lawful use and that does not involve adding, removing, or 

moving more than 50 cubic yards of material to, from, or within a lot in any 

calendar year.” 

2016 Regulations § 111.A(14). 

 

9

 The exemptions listed in the 2016 Regulations are not applicable to the violations alleged by the Town or 

to the development and use proposed by the Pelkeys in their permit application. 
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Because Mr. Pelkey admitted in his responses to the Town’s Interrogatories (admitted as 

Town Exhibit F) that he had moved more than 50 cubic yards of fill and gravel onto and around 

his Property between March and May 2017, we conclude that this exemption does not apply and 

the Pelkeys were required to obtain a zoning permit for their 2017 fill and gravel work. Further, 

we found the testimony of the Zoning Administrator most credible and persuasive. Administrator 

Lalley stated that by her estimate, which was informed by her observations and experience as a 

zoning administrator and landscape architect, the material exceeded 50 cubic yards. 

We also note that this exemption only applies to work encompassing less than 50 cubic 

yards that is “incidental to a lawful use.” Id. The credible evidence convinces this Court that Mr. 

Pelkey was moving and grading the gravel and fill he brought onto his Property to begin the initial 

development of the site to host his 8,000-square-foot garage, a structure for which he had not 

yet secured a zoning permit. Thus, any of his fill and gravel work cannot be regarded as 

“incidental to a lawful use.” For this additional reason, we conclude that the Pelkeys were in 

violation of the requirements of the 2016 Regulations. 

A further procedural fact confirms our legal conclusions: the Pelkeys failed to file a timely 

appeal from the NOV served upon them by the Zoning Administrator. By failing to timely 

challenge the NOV in an appeal, the Pelkeys gave up their right to contest the allegations 

contained in the NOV. See 24 V.S.A. § 4472(d) (directing that when an interested person fails to 

file a timely appeal, that person “shall be bound by that decision or act”); see also In re Newton 

Enterprises, 167 Vt. 459, 463 (1998). 

For all these reasons, we conclude that Mr. and Mrs. Pelkey allowed the noticed zoning 

violations to occur on their Property, including (a) commencing land development without a 

required zoning permit; (b) commencing land development outside of the approved building 

envelope; (c) changing or adding a use on their Property without prior approval pursuant to § 243 

of the 2016 Regulations (defining the allowed use standards for the R-5 District); and (d) made 

changes to the site on their Property without prior approval under Chapters 240 and 320 of the 

2016 Regulations. 
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We detail what consequences will arise as a result of the zoning violations that the Pelkeys 

committed in Section III, below. Prior to detailing those consequences, we believe it appropriate 

to evaluate the Pelkeys’ zoning permit application. 

II. The Pelkeys’ Zoning Permit Application 

The Pelkeys originally presented thirty Questions in their Statement of Questions, filed on 

January 16, 2018. Then, at the beginning of our first day of trial, on January 29, 2019, the Pelkeys 

withdrew fourteen Questions, thereby leaving Questions 1–6, 8, 10, 12–14, 16–17, and 21–23 for 

the Court to adjudicate. Most of the Pelkeys’ remaining Questions are presented as challenges 

to the propriety of the DRB’s actions in the permit application proceedings below. Only Question 

6 and Question 8, though general in nature, present issues that this Court can assess in its de 

novo review of the Pelkeys’ permit application. See In re Appeal of Yates, No. 158-9-04 Vtec, slip 

op. at 8-9, 11-12 (Vt. Envtl. Ct. Apr. 17, 2017) (Durkin, J.) (describing this Court’s de novo 

standard); 10 V.S.A. § 8504(h) (providing for de novo review); V.R.E.C.P. 5(g) (same). 

A. Whether the Project Required DRB Approval (Question 6) 

The Pelkeys present several arguments to support their claim that the Zoning 

Administrator should have approved their permit application automatically and did not need to 

refer the application to the DRB, and that this Court should automatically approve that 

application now. The answer to this Question determines the standards this Court must apply to 

the application in this review. Due to the relevance of the history of the parties’ disputes and 

litigation, we first look to the last appeal by the Pelkeys that was adjudicated by this Court. 

In that prior appeal, the Pelkeys and the Town came to an agreement that allowed this 

Court to grant the Pelkeys’ application to modify their previously approved building envelope in 

their subdivided Lot 1. See Pelkey Subdivision Amendment, No. 119-9-16 Vtec (June 21, 2017). 

The parties’ settlement also anticipated that the Pelkeys would file a further application for 

authority to develop the building area on Lot 1, although the Pelkeys had not yet submitted that 

application and had not yet disclosed their specific development plans. Id. 

The Town has a somewhat unique mechanism to assess whether to approve a proposed 

development; that mechanism incorporates a point system to assess whether the proposed 

development meets or exceeds certain conditional use review criteria. See 2017 Regulations 
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§ 244.C(4). Those provisions require that a proposed development “must attain a final score of 

27 or more points (out of a possible 40) to be approved by the Development Review Board.” 

2017 Regulations § 244.C(3). 

We cite to these provisions to provide a better understanding of the parties’ settlement 

in the prior appeal (Docket No. 119-9-16 Vtec). As part of their settlement, the parties 

incorporated some of their settlement terms into a Corrected Stipulated V.R.C.P. 58 Judgment 

Order, which this Court signed and filed on June 21, 2017. 

As part of those settlement terms, the parties agreed, and the Court adopted, that “[a]ny 

future application, revised as follows, achieves a [minimum] score of 23 points under Section 244 

. . . .” Pelkey Subdivision Amendment, No. 119-9-16 Vtec at 1 (June 21, 2017). Crucial to the 

present appeal, under ¶ 5 of the Corrected Stipulated Judgment Order, the 23-point system is 

not binding on either party for any Pelkey application that requires approval from the DRB and 

not just the Zoning Administrator. 

The listed revisions address site conditions and improvements; they do not specify any 

details as to the development that might be proposed. Id. We understand that the parties 

intended to set a base line for the point assessment if the Pelkeys meet those general conditions. 

To secure a zoning permit from the Zoning Administrator pursuant to the Order, when additional 

DRB review is not required, the Pelkeys are required to submit an application that conforms to 

the 23 directive in the Corrected Stipulated Judgment Order, and then further present evidence 

to convince the Administrator that their new application also complies “with the Westford Land 

Use and Development Regulations in effect at the time the [Pelkeys] submit a complete 

application.” Id. at 1. 

Given our analysis above concerning the directive of 24 V.S.A. § 4449(d), we must 

conclude that the 2017 Regulations were in effect when the Pelkeys filed their complete 

application on July 1, 2017. 

As we noted above in our discussion of the one substantive distinction between the 2016 

and 2017 Regulations, a Zoning Administrator is directed by both versions of the Regulations to 

“not issue a zoning permit for any land use or development” without site plan review from the 

DRB, but certain exceptions apply. Regulations § 421.A (emphasis added). In the 2016 
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Regulations, one exception to the prohibition against the Administrator issuing a zoning permit 

is for “[c]onstruction of a single-family . . . dwelling, or any development ancillary to a singlefamily . . . dwelling, including, but not limited to a home occupation or accessory dwelling.” 2016 

Regulations § 421.A(1). The 2017 Regulations contain an identical exception but limit the 

exception to “an accessory dwelling or home occupation that does not involve a structure of 

more than 1,000 square feet.” 2017 Regulations § 421.A(1) (emphasis added). In sum, under the 

2017 Regulations, structures of more than 1,000 square feet that are proposed as part of a home 

occupation do not get the benefit of the § 421.A(1) exception and must undergo DRB review. 

Because we have concluded that the 2017 Regulations govern the pending application, 

we apply the size limitation on the § 421.A(1) exception. We therefore conclude that the Zoning 

Administrator alone could not grant a zoning permit for the Pelkeys’ proposed garage, since it 

involves an 8,000-square-foot structure. The Pelkey application needed to be considered by the 

DRB pursuant to ¶ 5 of the Corrected Stipulated Judgment Order and § 421.A. As discussed 

further below, this is determinative of the standards we apply in our appellate review. 

B. Whether the Project satisfies the 23-Point Criteria of the Corrected Order (Question 8) 

The next Question that the Pelkeys pose in their Statement of Questions that is subject 

to our review is their Question 8: does the proposed garage, access drive, and parking “satisfy 

the 23-point criteria in ¶ 3 of the Corrected Stipulated Judgment Order[?]” 

Our prior analysis allows us to succinctly answer this Question. By its terms, ¶ 3 of the 

Corrected Stipulated Judgment Order is only applicable when the application “does not require 

approval by the Westford Development Review Board . . . .” Since the 2017 Regulations prohibit 

the Zoning Administrator from issuing a zoning permit when “an accessory dwelling or home 

occupation . . . involve[s] a structure of more than 1,000 square feet,” the provision in the 

Corrected Stipulated Judgment Order that incorporates the 23-point system is not applicable to 

the review of the application that the Pelkeys submitted. Since the Zoning Administrator is 

barred from independently issuing a zoning permit for a garage of the size the Pelkeys proposed, 

their only recourse was to seek review by the DRB. 

We therefore answer the Pelkeys’ Question 8 in the negative, since we conclude that the 

application and site plan that they presented was not entitled to the 23-point assessment that 
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the parties established in the Corrected Stipulated Judgment Order from Docket No. 119-9-16 

Vtec. 

C. Whether the Proposed Garage Qualifies as an Accessory Structure

Given the preceding conclusions, we must evaluate the Pelkeys’ application under the 

2017 Regulations without the benefit from the § 421.A(1) exception and the 23-point system of 

the Corrected Stipulated Judgment Order. 

In our initial review of the Pelkeys’ application and their legal arguments in support of it, 

we are troubled by the Pelkeys’ admission that they did not specifically request approval in their 

application to operate a home occupation from the proposed 8,000-square-foot garage, and by 

their assurance that, even though their application does not request it, we can consider such a 

request in this appeal. An application sets the parameters of the jurisdiction enjoyed by a zoning 

administrator, which in turn defines the jurisdiction of the appropriate municipal panel and this 

Court on appeal. See In re JLD Props. – Wal-Mart St. Albans, Nos. 242-10-06 Vtec, 92-5-07 Vtec, 

& 116-6-08 Vtec, slip op. at 17-18 (Vt. Envtl. Ct. Mar. 16, 2009) (Durkin, J.); 10 V.S.A. § 8504(h); 

V.R.E.C.P. 5(g). However, having reviewed the Zoning Administrator’s denial of the application 

(Town Exhibit G) and the DRB denial of the application, which is part of the record on appeal, we 

conclude that the Pelkeys must have orally requested that the Administrator consider a home 

occupation request, and that the Administrator in the first instance, and the DRB on appeal, 

considered a request for home occupation approval. 

To receive home occupation approval, an applicant must show conformance to § 301 of 

the 2017 Regulations. One of the criteria incorporated into the home occupation analysis is 

conformance with the Performance Standards found in § 330. See 2017 Regulations §§ 301.B(4) 

and 301.C(4). As a threshold matter, the Pelkeys force us to conclude that they have failed to 

provide sufficient detail about their proposed garage or their intended use to allow us to conduct 

an analysis of their conformance to the Performance Standards. 

The Pelkeys first argue that since they already operate a home occupation from their 

temporary hoop house accessory structure they should automatically be allowed to operate a 

home occupation from their new proposed 8,000-square-foot garage. We find no support in the 

2017 Regulations or the enabling statutes to support this argument. First, since the Pelkeys offer 
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no assurance that they intend to discontinue the use of their existing accessory structure, 

measuring about 1,400 square feet, we can only conclude that the new garage would be used in 

addition to, and not instead of, their existing accessory structure. Second, the Pelkeys have been 

reluctant to detail what use, home occupation or otherwise, would be conducted in their new 

garage. Mr. Pelkey first declined to detail what the garage would be used for; at one point, his 

engineer explained that getting this garage permitted was “the first baby step” in getting 

approval to move his businesses from Swanton to his Property. 

The Pelkeys have not provided details as to the nature of the new home occupation to be 

conducted in the new garage, or specific information on what equipment or other items would 

be stored in this new garage. Without this information, we cannot be assured that the 

construction and use of this new, 8,000-square-foot garage will “not regularly generate customer 

or truck traffic that would alter the character of the area or negatively impact the use of adjacent 

property.” 2017 Regulations §§ 301.B(2) and 301.C(2). In short, the Pelkeys’ vague and varying 

testimony left us wondering what the future use of this garage would actually be. 

The Pelkeys have represented at various times that eight to ten vehicles may be parked 

on the access drive to the new garage, but they have not detailed why there would be up to ten 

vehicles at the garage. We therefore have no way of discerning the employees, visitors, or others 

who will be frequenting the garage, or what traffic impacts may be generated by the Pelkeys’ use 

of this garage. 

The Pelkeys’ characterization of their proposed garage as an “accessory structure” 

presents further challenges for their application. The 2017 Regulations define an accessory 

structure as “a structure that is incidental and subordinate in size and overall appearance to the 

principal structure on the same lot.” 2017 Regulations § 511.A(2). The parties agree that the 

principal structure on the Pelkeys’ Property is their 2,360-square-foot home (including the 

attached garage). Based upon the evidence presented at trial and witness testimony, there is 

nothing about the proposed garage that is incidental and subordinate in size and overall 

appearance to the Pelkeys’ residence. The residence is less than a third of the square footage of 

the proposed garage. Current views of the Pelkey home will be obscured or effectively blocked 

by the proposed garage, due to the garage’s size and prominent location on the front portion of 
-22- 

the Property. In fact, we anticipate that, if the Court were to grant this application and the garage 

were to be built, many if not all new visitors to the Pelkey Property would assume that the garage 

was the primary structure on the Property, with a residence behind it as an incidental accessory 

structure. 

We are further troubled that the Pelkeys and their engineer hedged their descriptions of 

the proposed garage, noting at trial that the design “has not yet been finalized.” We were not 

presented with an exact peak height of the garage and were only offered demonstrative exhibits 

of what the garage “might look like.” In short, we were not provided with the basic specificity 

necessary to render conclusions about whether the proposed garage would conform to § 301 of 

the 2017 Regulations. Based on what we have seen, however, we cannot conclude that the 

proposed garage would qualify as an accessory structure, as defined by § 511.A(2) of the 2017 

Regulations. 

For these reasons, we must DENY the Pelkeys’ zoning permit application. 

III. The Town’s Claims for Injunctive Relief and Fines 

We now come to the final analysis required in the pending proceedings. Given that we 

have concluded that the Pelkeys violated the 2016 Regulations, as described in the NOV, we must 

determine how to respond to the Town’s request for injunctive relief and fines. See 24 V.S.A. 

§ 4451(a) (providing for a maximum fine of $200.00 per day for each zoning offense); 24 V.S.A. 

§ 4452 (providing for injunctive relief). 

In assessing the Town’s claims, we are guided by the Uniform Environmental Law 

Enforcement Act. 10 V.S.A. §§ 8001, et seq. While the Act is specifically applicable to 

enforcement actions brought by the Vermont Agency of Natural Resources and the Vermont 

Natural Resources Board, we have previously relied upon the Act when determining how to 

assess claims by Vermont municipalities that have brought enforcement actions under their 

zoning regulations. See, e.g., City of Burlington v. Muir, No. 117-8-13 Vtec, slip op. at 6-8 (Vt. 

Super. Ct. Envtl. Div. Jan. 23, 2015) (Walsh, J.). 

We first note that we received no testimony or other evidence that the Pelkeys continued 

to bring additional fill and gravel onto their Property after being served with the NOV. However, 

because of Mr. Pelkey’s comments to the Zoning Administrator regarding his intent to proceed 
-23- 

without a permit, we conclude that an injunction is warranted, especially since there was no 

evidence presented that the Pelkeys have returned the site to its original condition, as the 

Administrator directed in the NOV. We therefore include in our Order an injunction barring the 

Pelkeys from bringing further fill, gravel, or other earthen material onto their Property in excess 

of 50 cubic yards per year without first receiving a permit from the Town authorizing them to do 

so. We further direct that within 30 days of this Decision, the Pelkeys shall remove the gravel, 

fill, and other earthen material from their building site, and lay topsoil on the building site and 

access drive, along with seed and mulch. 

As to the Town’s claim for fines, we compare the circumstances presented by this matter 

to the subsections of 10 V.S.A. § 8010(b), part of the aforementioned Uniform Environmental 

Law Enforcement Act, for guidance and note the following: 

(1) We did not receive evidence of an actual or potential impact on public health, safety, or 

welfare that has occurred as a result of the Pelkeys’ zoning violations. 

(2) We find that there was some evidence of mitigating circumstances, in that it appears that 

the Pelkeys ceased bringing substantial amounts of additional fill onto the Property after 

receiving the NOV. We are also disturbed by the animosity between the Pelkeys and the 

Town officials with whom they have interacted, but conclude that Mr. Pelkey has 

contributed to this animosity, and continues to do so by his sometimes-unfounded 

accusations against Town officials. 

(3) The Pelkeys, particularly Mr. Pelkey, knew and had reason to know that their actions 

constituted zoning violations. The evidence further showed that Mr. Pelkey has at times 

exhibited a disregard for the Regulations and the obligation of any Town resident to abide 

by those Regulations. He built the temporary hoop house without first receiving a zoning 

permit and has been the subject of two previous notices of zoning violations. Mr. Pelkey 

also advised the Zoning Administrator that he planned to go forward with his current 

construction activities without a permit. This perhaps represents the most egregious 

aggravating factor when assessing the proper fines to impose on the Pelkeys. 

(4) As noted above, either the Pelkeys or Mr. Pelkey alone have been the subject of two prior 

notices of alleged zoning violations. We also take into consideration here Mr. Pelkey’s 

asserted intention of continuing to construct without complying with the applicable 

zoning regulations. 

(5) [This subsection of 10 V.S.A § 8010(b) has been repealed and we therefore do not 

consider it.] 

(6) We conclude that there is a likelihood that the Pelkeys may again fail to comply with the 

Regulations, unless the fine imposed is of a significant level to help deter future noncompliance. 
-24- 

(7) The Town has incurred attorneys’ fees and expenses of $10,294.98, solely related to the 

Pelkeys’ zoning violations, and only through the billing period ending in February 2018. 

Since that date, the Town’s attorneys were called upon to present the enforcement 

complaint to the Court; conduct trial preparation, discovery, and motion practice; and 

participate in the two-day trial. We fully expect that the Town’s fees and expenses for 

the enforcement action alone were much greater than the total presented. 

(8) While the violation that continues (i.e., the un-permitted fill and gravel remaining on the 

Property) is somewhat minor in the realm of zoning violations, it continued through the 

end of our trial on January 30, 2019, and perhaps continues through this day. 

The Pelkeys’ violations have continued for a total of 610 days. Given the considerations 

detailed above, we conclude that the Pelkeys’ actions and zoning violations warrant a fine of 

$25.00 per day, bringing the total fine owed to the Town of Westford by Mr. and Mrs. Pelkey to 

$15,250.00. 

Order 

For all the reasons stated above, we DENY Theodore and Michelle Pelkey’s zoning permit 

application for authority to construct an 8,000-square-foot accessory structure/garage on the 

front portion of their Property at 2189 Vermont Route 128 in Westford, Vermont. We further 

order Mr. and Mrs. Pelkey, who are jointly and severally liable, to pay to the Town of Westford 

the sum of $15,250.00. 

Lastly, we hereby enjoin Mr. and Mrs. Pelkey from bringing further fill, gravel, or other 

earthen material onto their Property in excess of 50 cubic yards per year without first receiving 

a permit from the Town authorizing them to do so. We further direct that within 30 days of this 

Decision, the Pelkeys shall remove the gravel, fill, and other earthen material from their building 

site, and lay topsoil on the building site and access drive, along with seed and mulch. 

This completes the current proceedings before this Court. A Judgment Order 

accompanies this Merits Decision. 

Electronically signed in Brattleboro, Vermont, on July 25, 2019, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division