1 STATE OF VERMONT

ENVIRONMENTAL COURT

} } In re: } Chandler Repair and Home Industry Application } Doc ket No: 79-4-07 Vtec (Appeal of Chandler) } }

Decision and Order on Motion for Reconsideration of Dismissal Order Appellant Charles Chandler appealed from a decisionof the Development Review Board (DRB) of the Town of Newfane issued on April 10, 2007. Appellant represents himself; the Town of Newfane is represented by Samu el Hunt Angell, Esq. Appellant has moved for reconsideration of the Court’s June 6, 20 07 dismissal order, requesting reinstatement of the appeal.

On December 6, 2006, this Court issued a final deci sion in Docket No. 25-2-06 Vtec relating to the same property as in the above-capti oned appeal; that decision has been appealed to the Supreme Court. The decision made i t clear that it was only the dual use of the property that was being disapproved, based onthe conclusion that the property is
too small to maintain botha commercial and a residential use on the same pro perty. The
decision noted that the fact that a commercial use was once approved for a property does not make that property irrevocably commercial; thatis, under the Newfane zoning ordinance at issue in that case, an applicant may a pply to discontinue a commercial use and
revert to a residential use. The decision noted th at Appellant remained free to file with the Zoning Administrator future applications for other alternative uses of the property. The decision did not address whether any particular pro posal by Mr. Chandler could qualify2

as a home occupation or a home industry, it only sta ted that Mr. Chandler could file an application for such a proposal to be considered inthe first instance by the Zoning Administrator and, if necessary, by the DRB. A lat er entry order at the end of 2006 in Docket 25-2-06 Vtec stated that it would be up to the Zoning Administrator, or the DRB on appeal from the Zoning Administrator, to determine i n the first instance the conditions under which the use of the property might or might not be able to qualify as a home occupation or home industry as part of a residentia l use, or to rule on any other new proposal. At some time in early 2007 Appellant filed a new zo ning permit application, No. 2007/01, which was denied by the Zoning Administrat or. Neither the application nor the Zoning Administrator’s decision has been provided t o the Court. The Development Review Board convened a hearing on March 19, 2007 t o consider Appellant’s appeal of the Zoning Administrator’s decision, and issued a writt en decision denying the appeal on April 10, 2007. The DRB decision described the application as beingone “to make changes to the property at 1075 Rt. 30 and to establish a home ind ustry,” and described the Zoning Administrator’s “basis for denial” as being “Sectio n VI, paragraphs 6100, 4411 and 4410 of the Town of Newfane Zoning Bylaws.” The DRB decisi on denied the appeal on the basis
that it had “determined that a Site Visit was neces sary to identify and understand the facts related to the appeal,” and that in the absence of A ppellant’s consent to a site visit, “the DRB had no basis for” ruling on the appeal. The DR B decision stated the four DRB members who participated in the decision, but did n ot reflect any vote taken by the DRB,
did not state the factual bases for the DRB decisio n (other than its inability to take a site visit) and did not state any conclusions related to the review standards. Appellant filed the above-captioned appeal, which received Docket No. 79 -4-07 Vtec.1 Checks dated June 11, 2207, providing the filing fe e for the present appeal or, alternatively, for an

appeal to the Vermont Supreme Court, contain an add ress for Chandler Electric Company as P.O. Box 8085 , Brattleboro, VT 05304. The Court has not been aske d to use that address for Appellant and has not don e so.
3 The notice of appeal shows Appellant’s address 1 as “1075 Rt. 30, Newfane, Vermont
05345.” That address was entered in the Court’s do cketing system as his address for the purposes of receiving mail from the Court, and all court-issued orders and notices in this matter have been sent to him at that address. Appe llant requested waiver of the filing fee, arguing that the new appeal was a “continuation” of Docket No. 25-2-06 Vtec, and stating that the only “new evidence” (comparing his former application that was the subject of Docket No. 25-2-06 Vtec and the application that wa s the subject of the new appeal) was that Appellant “now resides at 1075 Route 30, Newfa ne, VT,” the location of the property at issue in both appeals. By an entry order issued on April 25, 2007, the Cou rt noted that Docket No.25-2-06 Vtec not only had been concluded in this Court but had been appealed to the Vermont Supreme Court, and that no appeal relating to these parties or this property was pending
before the Environmental Court. In that order the Court stated that Docket No. 79-4-07 Vtec would ordinarily require a new filing fee, but allowed time for the Town to come in as a party and allowed until May 11, 2007 for the p arties to determine whether they would prefer to remand the matter for a site visit to occ ur, if necessary under the terms of a court order, before the Court would rule on the request fo r waiver of the filing fee. Appellant filed the Statement of Questions and Atto rney Angell entered his appearance on behalf of the Town. On May 11, 2007, a s the parties had not filed anything regarding remand with the Court, the Court schedule d the initial pretrial conference in this matter for May 21, 2007, to be held by telephone. Both the April 25 entry order and the May 11 notice of the May 21 pretrial conference wer e sent to Appellant at the 1075 Route 30, Newfane, 05345, address. Both parties participate d in the conference.4

At the May 21, 2007 telephone conference, the parti es discussed the issues with the Court, and discussed the payment of the filing fee, which Appellant stated his intention to send to the Court. He inquired as to the amount an d Judge Wright told him he could check with the staff of the court to verify the amount. The Court did not set a deadline for payment of the filing fee orally at the conference, did not direct Appellant to call the court staff regarding the filing fee amount, and did not state that the court staff would call him to tell him the filing fee amount. Rather, the Cour t issued a scheduling order on May 23,
2007. The May 23, 2007 scheduling order required the filing fee to be paid so that it would be received at the Court by June 1, 2007, or the ap peal would be entered as dismissed. The scheduling order also allowed the parties to file a ny motions for summary judgment regarding question 2 of the Statement of Questions, if the matter was not dismissed, by June 21, 2007, with responses to be filed within 15 days of the date of filing of the motion. As the Court received no filing fee, on June 6, 200 7, the Court issued a brief entry order attaching a copy of the May 23, 2007 scheduling order (mistakenly referring to it as having been issued on May 29) and dismissing the ap peal for failure to file the filing fee. On June 13, 2007, Appellant filed an “Emergency Mot ion to Reconsider” the dismissal order, stating that he had not received a copy of the May 23, 2007 scheduling
order until it had been sent as an attachment to th e dismissal order. He enclosed a check for the filing fee, dated June 11, 2007, and also e nclosed a notice of appeal to the Supreme Court and a separate check for the Supreme Court fi ling fee, presumably to be used if the
reconsideration motion were denied. The Town filed a brief memorandum in opposition to the motion to reconsider, simply stating that th e motion does not meet the criteria of
either V.R.C.P 59 or V.R.C.P. 60. Failure to file the filing fee with the notice of a ppeal was not jurisdictional; rather, the appeal was dismissed solely due to Appellant’s apparent non-compliance with the May5

23, 2007 scheduling order. While there is a presum ption that a properly-addressed letter that is mailed is received in due course, it is a r ebuttable presumption. E.g. , Estey v.
Leveille , 119 Vt. 438, 439 (1957). As in Estey , if we were to hold a hearing regarding the circumstances of Appellant’s receipt or lack of rec eipt of the May 23, 2007 court order, no contrary evidence has been suggested that would cou nter Appellant’s assertion of nonreceipt. Moreover, Vermont jurisprudence strongly f avors the resolution of cases on their merits, Desjarlais v. Gilman , 143 Vt. 154, 158-9 (1983), whether through summary judgment or after a necessary evidentiary hearing. The Cour t will reach the issue of the adequacy of the DRB’s decision in this matter, which is the subj ect of the appeal and of Appellant’s motion for summary judgment. Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellant’s Motion for Reconsideration of the Dismi ssal Order is GRANTED; the dismissal of the above-captioned appeal is hereby vacated. T he Court will deposit Appellant’s June 11, 2007 check for the filing fee for the above-cap tioned appeal. On or before August 17, 2007, the Town may respond to Appellant’s motion for summary judgment. We are also returning to Appellant his notice of ap peal to the Supreme Court and his check for the Supreme Court filing fee. Any pa rty wishing to appeal the present decision and order should file a new notice of appe al or motion to take an interlocutory appeal, accompanied by the appropriate filing fee.

Done at Berlin, Vermont, this 27 thday of July, 2007.

_________________________________________________ Merideth Wright Environmental Judge