1 Ann Fiorenza, Robert Fiorenza, Martin Kuehne, Willia m Stuono, Charles

Goodnight, Sarah Goodrich, Lori Stevens, David Babb ott, Elisa Nelson, and Catherine Suiter.

1 STATE OF VERMONT

ENVIRONMENTAL COURT
} In re: Kaminsky House Replacement Application } Docke t No. 269-11-06 Vtec (Appeal of Fiorenza, etal. ) } }

Decision and Order on Motion to Dismiss The above-captioned case was filed as an appeal fro m a decision of the Development Review Board (DRB) of the City of Burlington, approv ing Appellee-Applicants Gary Kaminsky and Christine Kaminsky’s application to de molish an existing single-family
house at 125 South Cove Road in the Waterfront Resi dential Low Density zoning district and replace it with a new, much larger single-famil y house, swimming pool, and associated site modifications. Appellee-Applicants are repres ented by Carl H. Lisman, Esq.; the City of Burlington is represented by Kimberlee J. Sturte vant, Esq. Appellee-Applicants have moved to dismiss the appeal. This appeal was filed on November 22, 2006 by a gro up of ten persons 1 , each of whom signed the notice of appeal, which claimed sta nding as a group under 24 V.S.A. §4465(b)(4). The group had not filed a petition wh en this matter was pending before the DRB, as required by §4465(b)(4) for group standing under that section. On December 12, 2006, one of the ten group members, Sarah Goodrich, notified the Court that she was withdrawing from the appeal. Before the time had elapsed within which to schedul e the initial conference in this matter, on December 13, 2006, the Court on its own motion issued an entry order noting2

that the withdrawal would bring the group below the number required for party status under 24 V.S.A. §4465(b)(4). That order stated tha t “any of the other members of the group wishing to pursue the appeal as an individual appel lant under [24 V.S.A.] §4465(b)(3) shall file a statement of their grounds for standing unde r that section” by December 29, 2006. On December 14, 2006, Ann Fiorenza, Robert Fiorenza , Charles Goodnight and Elisa Nelson filed entries of appearance on their own beh alf, but did not file statements of why they believed they qualified for party status under 24 V.S.A. §4465(b)(3). An unsigned Statement of Questions was also filed on the same d ay, under a cover letter requesting a delay in the appeal for the purpose of pursuing med iation, signed by Elisa Nelson “on behalf of” seven of the original members of the gro up: Ann Fiorenza, Robert Fiorenza, Martin Kuehne, William Stuono, Charles Goodnight, Lor i Stevens, and Catherine Suiter. No explanation in that or the January 18, 2007 cove r letter discussed below explains why David Babbott is no longer listed as a potential ap pellant. On December 28, 2006, Donna L. Parrish, of 19 Dunde r Road, filed a request to “join the appeal” of the DRB decision at issue in this ma tter “under 24 V.S.A. §4465(b)(4).” By fax on December 29, 2006, followed by an original filed on January 3, 2007, Linda S. Borman, of 169 South Cove Road, filed an identicall y-worded request. Neither of these requests stated any facts as to the criteria for pa rty status under either §4465(b)(4) or §4465(b)(3). On January 9, 2007, Appellee-Applicants moved to di smiss the appeal. The Court held an in-person conference at the Costello Courth ouse in Burlington on January 10, 2007, at which Attorney Lisman appeared for the Appellee- Applicants, and Attorney Sturtevant appeared for the City. Of the individuals seeking party status, only Ms. Nelson and Mr. Stuono appeared for the conference. At the conference, the Court explained the differen ce between party status under §§4465(b)(3) and (b)(4) and that a (b)(4) group wou ld in any event have had to have filed3

a petition, as provided in that section, when this matter was pending before the DRB. The Court explained generally that a group of unreprese nted appellants could select spokespersons to participate in pretrial proceeding s (indeed, §4465(b)(4) requires this), but that a non-attorney could not represent another ind ividual. Because the motion to dismiss was already pending, a nd because most of the potential individual appellants were not present inCourt, the Court set a deadline of January 19, 2007, for any further filings on any indi viduals’ claims for party status under §4465(b)(3), as well as their responses to the moti on to dismiss, and issued a written entry order on January 12, 2007 that was sent to all the potential individual appellants and to the two additional people who had requested to “join inthe appeal.” On January 18, 2007, Ms. Nelson again wrote a letter to the Court constituting her response to the motion to dismiss. None of the oth er parties filed an argument in response to the motion to dismiss. Like the December 14, 200 6 letter, this letter was signed only by
Ms. Nelson but stated that it was “on behalf of” si x of the original members of the group: Ann Fiorenza, Robert Fiorenza, Martin Kuehne, Willi am Stuono, Charles Goodnight, and Catherine Suiter, plus the two people who had filed requests to “join in” the appeal: Donna
Parrish and Linda Borman. No mention was made of L ori Stevens or David Babbott. The January 18 letter stated that all of the “conti nuing appellants would like to proceed” under §4465(b)(3), stating that: We all live directly on South Cove Road, or on Aust in Drive which is the only access to South Cove Road. Our property will be gr eatly affected by this project. We all also have a deeded interest in the South Cove Beach and Recreation area, which is only 200 feet from the subject property. Additionally, we are members of the South Cove Asso ciation, whose primary function is to manage and protect our neighborhood. Also on January 18, 2007, the following individuals filed requests for party status to “continue to appeal the DRB ruling as an individual appellant” under §4465(b)(3): William4

Stuono, Martin Kuehne, Ann Fiorenza, Robert Fiorenz a, Catherine Suiter, Charles Goodnight, and Elise Nelson. While the separate st atements contain much substantiallyidentical material, they also state the individuals ’ specific arguments and will be addressed separately below. First, neither David Babbott nor Lori Stevens provi ded the filings required by the court orders, even by the extended deadline. Theref ore, they are dismissed as parties. As Appellee-Applicants note in their March 7, 2007 memorandum, the timely filing of a notice of appeal by a qualified appellant is j urisdictional. In the present case, at the time of the filing of the notice of appeal, the appe llant was a group of ten persons filing under 24 V.S.A. §4465(b)(4). They did not initiall y file the appeal as individuals due to incorrect information given the group by the City’s representatives; therefore, although the failure of the group as a group to have filed the p etition required under that section prevents the appeal from proceeding with the §4465( b)(4) group appellant, they were given the opportunity to convert the appeal to one filed by qualified individuals under §4465(b)(3), as it would have resulted in manifest injustice if those qualified individuals’ rights to appeal were disallowed. 10 V.S.A. §8504( b)(2)(C); V.R.E.C.P. 1. Appellee-Applicants argue that the failure of the r emaining group members to file their claims for individual party status by the ori ginal deadline of December 29, 2006 should result in the dismissal of the appeal. Howe ver, as became apparent in the in-person conference on January 10, 2007, the group appellant s mistakenly attempted instead to add two more members to the group by the filings of Donna Parrish and Linda Borman, which were made by the original deadline. As a result of the conference, the Court extended the deadline by one week (from the date of the entry or der issued two days after the conference), and such new filings as were made were made within that extended deadline. Accordingly, the motion to dismiss the individual ap peals as untimely is DENIED. However, not all of the members of the original app ellant group have demonstrated2 The DRB decision attached to the notice of appeal did not list the people who had

participated in the October 23, 2006 hearing, althoug h the list of interested parties provided by the City includes Mr. Stuono and Mr. Kuehne, fro m which we may deduce that they did, in fact, participate. However, see requirementin first partial paragraph on page 9, below.

3 Unlike a group which has party status under 24 V. S.A. §4465(b)(4), a general philosophical position on proposed development, or a n individual’s position as a citizen of the municipality, is not sufficient to meet this requirement.

4Based on the DRB decision, it appears that the dim ensional requirements for the WRL district and the Design Review criteria are app licable to this case, and that the DRB, and hence this Court, may impose conditions relatin g to blasting. The Design Review criteria include §6.1.10(a), addressing the relatio nship of the proposal to its environment, including to established neighborhood patterns, and §6.1.10(c) addressing open space, including its visibility for persons passing or ove rlooking the project site from neighboring properties. The parties have not provided the Cour t with any applicable standards from the Ordinance that may be pertinent to stormwater r unoff, property values, energy usage, the view of the property from the lake, or the pote ntial for future conversion of the house to multi-family use. Unless a criterion in the Ord inance applicable to this project relates to the effects of stormwater runoff, property value s, energy usage, the view of the property

5 party status as an individual appellant, even assuming 2 that they all participated as required in the proceedings before the DRB. To have party status as an individual appellant, a person must meet all three of these elements for individual party status under 24 V.S.A . §4465(b)(3), as well as the requirement from 24 V.S.A. §4471(a) that the person had partici pated before the DRB, which consists of “offering, through oral or written testimony, eviden ce or a statement of concern relating to the subject of the proceeding.” 24 V.S.A. §4471 (a). That is, each individual’s claim for party status must 1) explain specifically where tha t person owns or occupies property in the immediate neighborhood of the project; 2) expla in what physical or environmental impact on that person’s interest 3 is claimed to result from the project, under the s tandards from the zoning ordinance applicable to the project ; 4and must 3) allege that the DRBfrom the lake, or the potential for future conversi on of the house to multi-family use, those

issues are not before the Court in this appeal and cannot be considered.

5 Please advise the Court of any objection to this judicial notice or any inaccuracy in the street map or the locations of various addre sses. The parties should be prepared to present a neighborhood map in evidence if any issue s arise for trial as to these locations.

6 decision, if confirmed, will not be in accord with the policies, purposes, or terms of the City’s municipal plan or zoning ordinance. Each of the filings adequately makes out the claim, for the purposes of determining standing, that the decision, if confirmed, will notbe in accord with the policies, purposes, or terms of the City’s municipal plan or zoning ord inance. However, Appellee-Applicants are correct that the parties do not cite specifical ly to provisions of the plan or ordinance. The issues in any appeal are defined by those raise d in the statement of questions, which are subject to motions to dismiss as beyond the sco pe of the zoning ordinance; any remaining issues, of course, must be supported by evi dence in the de novo trial. As neither the Appellants nor Appellee-Applicants p rovided a map to orient the Court, the Court hereby takes judicial notice 5 of the street map of Burlington. South Cove Road is a loop road extending southerly from AustinDrive, with an easterly and a westerly outlet onto Austin Drive. The westerly portion of the loop road is the closest roadway to Lake Champlain at that location. The project prope rty (125 South Cove Road), 128 South Cove Road, and 169 South Cove Road are located on the westerly portion of the loop road;
169 South Cove Road is located close to or at the s outherly end of the westerly portion of the loop. 241 South Cove Road is located on the ea sterly portion of the loop road, close to and somewhat southerly of the project property and of 128 South Cove Road. 352 South Cove Road is located on the easterly portion of the loop road northerly of the project property. Dunder Road is a dead-end road extendingsoutherly from Austin Drive, roughly parallel to and easterly of the easterly po rtion of the loop road. 145 Austin Drive6 It is not clear to the Court from the parties’ fi lings whether it is the individual

homeowners or the South Cove Association that owns the community beach. The Statement of Questions did not specifically address any effect on water quality from the proposed project, although Question 2 does ask whether the proposal “with its extensive lot coverage” will “negatively impact” the neighbor hood swimming beach. If the standards in the Zoning Ordinance applicable to thi s application were to address the effect of the proposed project on water quality or the bea ch, and if the individual Appellants (as opposed to the homeowners’ association) have an own ership interest in the beach, then each of them might have qualified for standing for that reason. However, the parties have not come forward with support for standing on that basis.

7 and 155 Austin Drive are located farther easterly a long Austin Drive, beyond its
intersection with Dunder Road. William Stuono owns a house at 128 South Cove Road, directly across South Cove Road from the proposed project, within the immediat e neighborhood of the proposed project. He also owns what he characterizes as a d eeded interest 6 in the community beach, located some 200 feet from the project property. T he potential for an effect on his interest due to the size and design of the proposed project in relation to its surroundings, from blasting necessary to build the lower level of the proposed house, and from the effect on the views of Lake Champlain between the houses on S outh Cove Road and from his house, is sufficient for his party status as an appellant. Martin Kuehne occupies and/or owns a house at 169 S outh Cove Road, southerly along South Cove Road four lots from the proposed p roject, within the immediate neighborhood of the proposed project. The potentia l for an effect on his interest due to the size and design of the proposed project in relationto its surroundings, and from the effect on the views of Lake Champlain between the houses n ear to his on South Cove Road, is sufficient for his party status as an appellant. Ann and Robert Fiorenza each signed an identically- worded statement and will be discussed together. They own a house at 241 South Cove Road on the easterly portion of7But see footnote 6 above.

8

the loop road close to and somewhat southerly of th e project property and of 128 South Cove Road, within the immediate neighborhood of the proposed project. They also are what they characterize as “part owner[s] of the Ass ociation waterfront and beach access area.” The potential for an effect on their intere st due to the size and design of the proposed project in relation to its surroundings, a nd from the effect on the views of Lake Champlain between the houses on South Cove Road (an d if they have a view of the proposed house and the lake from the rear of their property), is sufficient for their party status as appellants.
Catherine Suiter owns a house at 352 South Cove Roa d, located on the easterly portion of the loop road northerly of the project p roperty, within the immediate neighborhood of the proposed project. While she do es not allege that she can see the proposed project from her property or from the road way near her property, the potential
for an effect on her interest due to the size and d esign of the proposed project in relation to its surroundings, or due to blasting necessary t o build the proposed project, is sufficient for her party status as an appellant. Elise Nelson occupies a house at 155 Austin Drive a nd is what she characterizes as a “part owner of the Association waterfront and bea ch access area.” Similarly, Charles Goodnight owns a house at 145 Austin Drive and is w hat he also characterizes as a “part
owner of the Association waterfront and beach acces s area.” Neither of these potential appellants has shown that they own or occupy proper ty “in the immediate neighborhood” of the project, nor have they shown a “physical or environmental impact” on that person’s interest other than that of residents of the genera l area or of the city generally. 78 Please note that if any of these individuals has factual knowledge pertinent to the

issues for trial, the remaining Appellants may callthem as witnesses at trial, without regard to whether they qualify for party status.

9 See footnote 8, above.

9 Accordingly they must be dismissed as parties appel lant. 8
Donna Parrish and Linda Borman filed too late to ha ve party status as appellants. As the appeal is not dismissed, we will consider th eir requests for party status as interested parties; 9 however, they have not yet shown that they meet th e standards in §4465(b)(3) for party status. Therefore, the Court will not rule o n their request to participate until and unless they demonstrate their qualifications under §4465(b)(3).

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellee-Applicants’ Motion to Dismiss certain of the Appellants is hereby GRANTED: David Babbott, Lori Stevens, Charles Goodnight, and Elise Nelson are hereby DISMISSED as parties appellant, as they have not shown that they meet the requirements for standing under 24 V.S.A. §4465(b)(3). However, Appellee-Applicants’ Motion to Dismiss the appeal as a whole is DENIED at this time. Each of the following Appellants: Wi lliam Stuono, Martin Kuehne, Ann and Robert Fiorenza, and Catherine Suiter, may continue with the appeal under 24 V.S.A. §4465(b)(3), subject to that Appellant’s demonstrat ing that he or she participated in the DRB proceeding on October 23, 2006, as required by 24 V.S.A. §4471(a). And see In re Appeal of Carroll, 2007 VT 19. Accordingly, on or before April 9, 20 07, each of these remaining Appellants wishing to proceed with this a ppeal shall file an affidavit with the Court describing their participation as defined in 24 V.S.A. §4471(a). Failure to file or failure to have participated will result in that Ap pellant’s dismissal from the appeal.10

On or before April 9, 2007, Linda S. Borman and Donna L. Parrish shall inform the Court in writing whether or not they wish to pursue interested party status in this appeal; if so, by that date they shall each file a statemen t showing how they meet the requirements of 24 V.S.A. §4465(b)(3). As the statement of questions filed on December 14, 2006 was unsigned, Appellants Stuono, Kuehne, Fiorenza and Suiter shall file a st atement of questions (which may be filed on behalf of all of them if they all sign it) on or before April 9, 2007. It may not contain any additional questions beyond those filed in the orig inal appeal of the group, In re Appeals
of Garen, 174 Vt. 151, 156 (2002), but may contain fewer qu estions. Please also note that policy questions beyond the scope of the Zoning Ord inance may be subject to dismissal by the Court, either on its own motion or a motion fro m the applicants. Accordingly, the remaining Appellants may wish to consult with an at torney before filing the required statement. A telephone conference has been schedul ed for April 16, 2007 (notice enclosed)
to consider mediation and to schedule this matter f or trial.

Done at Berlin, Vermont, this 28 thday of March, 2007.

_________________________________________________ Merideth Wright Environmental Judge