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STATE OF VERMONT 

ENVIRONMENTAL COURT 

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Randolph Town Office Zoning Appeal } Docket No. 106-6-05 Vtec 

 (Appeal of Rydjeski) } 

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Decision and Order

Letita H. Rydjeski appeals from the decisions of the Town of Randolph (Town) 

Development Review Board (DRB) granting site plan approval and a zoning permit to 

Appellee-Applicant Town for the renovation and expansion of their municipal office 

building on 7 Summer Street in the Town’s Commercial zoning district. Appellant 

appears and represents herself; the Town is represented by Peter M. Nowlan, Esq.; and 

William J. Kevan and Interested Person Leigh R. Wright appeared and represent 

themselves. 

This appeal is on-the-record, since the Town has adopted and implemented the 

procedures necessary for such appeals, pursuant to 24 V.S.A. §§ 4471 and 4472. Mr. 

Wright and the Town have filed briefs on the merits of this appeal for the Court’s 

consideration. William J. Kevan has also filed a motion to intervene, pursuant to 10 

V.S.A. § 8504(n). Appellant and Mr. Kevan also filed a “Motion for de Novo 

Proceedings,” asserting that a trial de novo is warranted because the tape recording of 

the hearings was allegedly inaudible and was not transcribed. 

I. Summary Issues

Appellant’s Statement of Questions raises a variety of issues in seven questions, 

almost all of which are not appropriate for our consideration in this permit appeal 

proceeding. Appellant’s first Question, labeled Question A, asks, “Why is the proposed 

addition now placed over an existing VCP sewer?” Appellant neither cites nor refers to 

any provisions in the Town’s Zoning or Subdivision Regulations prohibiting the 
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placement of the proposed addition over an existing sewer. Moreover, Appellant never 

expresses concern about the sewer in her letters or responsive motions to the Court. In 

the absence of any specific reference to a bylaw or regulatory provision being violated 

by building the proposed addition on top of a municipal sewer, and being unable to 

find such provision ourselves, the Court declines to answer that question, and it is 

hereby DISMISSED. 

Appellant’s second Question, actually labeled Question 1, concerns why the 

Town presented different plans to the DRB for the proposed addition to the municipal 

office building than were presented to the public at a November 2, 2004 bond issue vote 

for the same addition. Similarly, Appellant’s fourth Question, labeled Question 3, also 

concerns a change in plans from those presented at the time of a municipal bond issue 

vote. While we sympathize with Appellant’s position, we cannot address this specific 

concern because our review of the DRB’s decision in this on-the-record appeal is limited 

to the application presented to the DRB below. We cannot address matters beyond the 

Town’s current plans and applications, as presented to the DRB. 

This Court does not have jurisdiction to review decisions of a Town Selectboard 

or issues of public indebtedness arising under Chapter 53 of Title 24 relating to the 

impropriety of a bond issue, a vote on a particular bond issue, or on the plans 

submitted pursuant to a bond issue vote. Our jurisdiction is limited to certain appeals, 

as articulated in 4 V.S.A. § 1001 (2005): 

10 V.S.A. Chapters 201 and 220 and matters arising under 24 V.S.A. 

Chapters 201 and 220 and matters arising under 24 V.SA. Chapter 117 and 

Chapter 61, subchapter 12. In addition, the judges shall have original 

jurisdiction to revoke permits under 10 V.S.A. Chapter 151. 

Appellant’s allegations relating to the impropriety of the Town’s bond issue for 

improvements to the municipal offices are therefore not within this Court’s jurisdiction. 
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Appellant’s remaining questions for our review, Questions 2, 4, 5, and 6, concern 

the Town’s planned removal of a flowering crab apple tree located to the south of the 

existing municipal office building in the middle of green space adjacent to the existing 

municipal offices. The crab apple tree is labeled on the Town’s site plan as “existing 20′′ 

apple” tree and is considered a public shade tree under the control of the Town’s tree 

warden. See 24 V.S.A. § 2502. 

Although the Randolph tree warden also happens to be the Town Zoning 

Administrator, the Legislature has limited our jurisdiction to those provisions of the 

Vermont Statutes Annotated enumerated in 4 V.S.A. § 1001. Decisions of tree wardens 

are not reviewable in this Court, as they arise under Chapter 67 of Title 24. Appellant 

may find the relief she seeks in Superior Court. However, we cannot make an advisory 

statement as to whether an action in Superior Court will succeed or even be heard. 

Accordingly, we have no jurisdiction over Appellant’s remaining Questions, relating to 

the crab apple tree, specifically Questions 2, 4, 5, and 6. 

II. Kevan Intervention Request

Before reviewing the Town’s decision on the proposed municipal office building 

addition, we must first address Mr. Kevan’s motion to intervene under 10 V.S.A. 

§ 8504(n). Section 8504(n) sets out six instances when it is permissible for a person to 

intervene. As we have already ruled in our July 15, 2005 Entry Order, Mr. Kevan does 

not meet sub-sections 1, 2, or 5, as he did not appear in the action appealed from, is not 

a party of right under 10 V.S.A. § 8502(5), and does not qualify as an interested person 

under 24 V.S.A. § 4465. Subsection 3 and 4 are similarly inapplicable because Mr. 

Kevan is not a member of the natural resources board or a panel of that board, nor is he 

a “person aggrieved” under 10 V.S.A. § 8502(7) because this is not an appeal of an act or 

decision by a district commission or coordinator, the secretary of the Agency of Natural 

Resources, the environmental court, or the supreme court. 
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The only possible avenue for allowing Mr. Kevan to intervene in this proceeding 

is whether he would be allowed to intervene under the standards established by the 

Vermont Rules of Civil Procedure (V.R.C.P.). 10 V.S.A. § 8504(n)(6). V.R.C.P. 24 allows 

a party to intervene when a statute confers an unconditional right to intervene, which is 

not the case here, or when the potential intervener can demonstrate an interest relating 

to the property which is the subject of this action and where the disposition of the action 

may as a practical matter impair or impede the potential intervener’s ability to protect 

that interest, unless the potential intervener’s interest is adequately represented by 

existing parties. V.R.C.P. 24(a). 

Mr. Kevan’s interest related to property at issue in this appeal is a mortgage 

interest in the property of Russell Royce at 13 Summer Street. Mr. Royce is the record 

title holder of that property, but Mr. Kevan holds a mortgage interest. In Town of 

Sandgate v. Colehamer, 156 Vt. 77, 81-83 (1990), our Supreme Court held that the 

interest of a possessor of property who made mortgage payments on that property on 

behalf of the titleholder was an insufficient interest for standing to appeal a zoning 

decision under 24 V.S.A. § 4464(b) (now § 4465). We find the Court’s reasoning 

instructive and find that Mr. Kevan cannot intervene under V.R.C.P. 24(a) and 10 V.S.A. 

§ 8504(n)(6) because any disposition relating to the Town’s expansion of their municipal 

office building will not directly affect Mr. Kevan‘s mortgage interest in the property at 

13 Summer Street. Moreover, Mr. Kevan’s interests are already adequately represented 

by Appellant who lives at 6 Summer Street, which is closer to the Town’s municipal 

office than the property in which Mr. Kevan holds a mortgage interest. Mr. Kevan’s 

motion to intervene under 10 V.S.A. § 8504(n) is hereby DENIED. 

III. Factual Background

In an on-the-record appeal, the factual findings of the administrative body below 

are given great weight, although they are not conclusive. This Court must determine if 
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substantial evidence exists in the record as a whole from which the factual findings of 

the DRB might reasonably be inferred. See In re Town of Sherburne, 154 Vt. 596, 604-05 

(1990); Appeal of Lussier and No., Docket No. 116-5-02 Vtec (Vt. Envtl. Ct., Sept. 16,

2002). If there is conflicting evidence, the DRB is the body charged with weighing this 

evidence. Appeal of Doyle, Docket No. 100-5-02 Vtec (Vt. Envtl. Ct., Jan. 21, 2003). This 

Court will not disturb factual findings rendered by an appropriate municipal panel if 

supported by substantial evidence in the record as a whole. Id. 

Upon consideration of the record and the parties’ memoranda, the Court 

determines that the following DRB factual findings are supported by substantial 

evidence in the record.*

1. On March 30, 2005, the Town submitted a substantially complete zoning 

permit and site plan approval application to the DRB for an expansion of the Town’s 

municipal offices on their 19,403 square-foot lot located at 7 Summer Street. Municipal 

office buildings are a conditional use in the Commercial District, see Zoning 

Regulations, at 37 (Chart of Permitted and Conditional Uses), but because the Town’s 

proposal is an expansion of an existing use, conditional use approval is not required. 

2. The Town proposes constructing a 3,207 square-foot addition southerly of 

the existing 2,170 square-foot municipal office building. The new building would thus 

have a total footprint of 5,377 square feet, which leads to a lot coverage of 

approximately 28%. The DRB sets the maximum lot coverage during site plan review. 

3. The DRB sets the front, side, and rear setback requirements for the 

Commercial District during site plan review. Zoning Regulations § 6.7.2. The shortest 

setbacks for the municipal office building are 22 feet between the front of the building 

and Summer Street and between the municipal office building and the post office 

property to the south. 

 

*

 Appellant’s challenge to the adequacy of the record is discussed in more detail below, in conjunction 

with our consideration of Appellant’s motion for a de novo hearing.
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4. Off-street parking for the municipal office building is sufficient. One offstreet parking space is required for every 250 square feet of gross floor area, Zoning 

Regulations § 5.14.3. The proposed municipal building has a gross floor area of 7,447 

square feet, so thirty off street spaces are required. The adjacent parking lot contains a 

total of seventy-four parking spaces. The only change proposed for that parking lot is a 

relocation of the handicapped spaces so that they are closer to the proposed pedestrian 

access to comply with the Americans with Disabilities Act. 

5. The area surrounding the proposed municipal office expansion consists of 

densely mixed residential and commercial uses, which will be mostly unaffected by the 

Town’s proposed addition. To the extent that the proposed expansion will result in a 

reduction in lighting and decreased safety on Summer Street, the Town proposes 

mitigating the loss of lighting by adding replacement lighting to bring street lighting to 

a level equal or greater than what currently exists. To the extent that the municipal 

office expansion results in the loss of green space and a crab apple tree, the Town will 

plant new crab apple trees along the southern side of the building and new hackberry 

trees along Summer Street. 

IV. Discussion

Appellant has not adequately contested the DRB’s decision by raising proper 

questions for review in her Statement of Questions, but she does raise judiciable issues 

in her responses to the Town’s motion for judgment that we will address here for the 

sake of fairness to Appellant and Interested Person Wright. First, Appellant alleges that 

the DRB violated the procedural requirements of the Municipal Administrative 

Procedure Act, 24 V.S.A. §§ 1201–10 (2005), because no transcript was provided and 

because the recording of the DRB’s hearings on the Town’s application is inaudible. 

She further argues that there are not sufficient facts in the record to support a finding 

that the Town’s proposed municipal office expansion is “of such a location and in such 
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size and character that it will be in harmony with the appropriate and orderly 

development of the surrounding area.” Zoning Regulations § 4.1(b). Lastly, Appellant 

argues that the Town’s application is not in conformance with numerous statements of 

the Town Plan. 

Appellant argues that language in Town Plan suggesting public involvement in 

reviewing the municipal building committee’s recommendations on the municipal 

office building expansion was not followed. Appellant’s allegations may have merit in 

that the Town’s building committee may not have consulted the public; however, 

hortatory provisions in a Town Plan such as these have no regulatory effect unless 

specifically incorporated in the Town’s Zoning Regulations. Appeal of Waters, Docket 

No. 186-10-03 Vtec, slip op. at 7 (Vt. Envtl. Ct., Mar. 17, 2004). As our Supreme Court 

has stated, “Although the plan may recommend many desirable approaches to 

municipal development, only those provisions incorporated in the bylaws are legally 

enforceable.” Kalakowski v. John A. Russell Corp., 137 Vt. 219, 225-26 (1979). This Plan 

statement was not incorporated into the Zoning Regulations. Thus, the Town’s 

building committee is not required to consult with the public before pursuing changes 

to the municipal office building. 

Appellant also argues that the Town has not developed an “adequate record” in 

accordance with 24 V.S.A. § 4471(b) and the Municipal Administrative Procedure Act 

because the recording of the DRB proceedings below are inaudible and could not be 

transcribed. MAPA requires that the proceedings below be recorded and also requires 

that “[t]ranscriptions of the proceedings of contested hearings shall be made upon the 

request [of] and upon payment of the reasonable costs of transcription by any party.” 

24 V.S.A. § 1209 (emphasis added). Thus, the MAPA requires municipal hearings to be 

recorded and that recording must be of a high enough quality to be capable of being 

transcribed. See Appeal of Walters, Docket No. 206-11-03 Vtec, slip op. at 2-3 (Vt. Envtl. 

Ct., Oct. 8, 2004). 
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In the instant case, the DRB recorded the hearing on audio cassette. Contrary to 

Appellant’s suggestion, after listening to the recording of the DRB hearing of April 26, 

2005, submitted on August 10, 2005, the Court finds the recording to be clearly audible, 

capable of being transcribed, and in compliance with the provision of the Municipal 

Administrative Procedure Act requiring the hearing “to be recorded.” 24 V.S.A. 

§ 1205(c). There is no requirement that the DRB’s hearings be transcribed in the absence 

of a request and subsequent payment of the costs of the transcription. 24 V.S.A. 

§ 1209(f). Appellant’s motion for a de novo hearing is therefore DENIED. 

Finally, Appellant argues that there is insufficient evidence in the record to 

support a finding consistent with Zoning Regulations § 4.1(b) that the proposed 

development is “of such a location and in such size and character that it will be in 

harmony with the appropriate and orderly development of the surrounding area.” As 

stated above, this Court will not disturb factual findings rendered by an appropriate 

municipal panel if supported by substantial evidence in the record as a whole. Appeal 

of Doyle, Docket No. 100-5-02 Vtec. 

The DRB found in its Notice of Decision that the character of the area 

surrounding the municipal office building is “dense mixture” of residential and 

commercial uses. Finding of Fact 12. The adjacent property to the south contains the 

Town’s post office. Finding of Fact 14. Submissions in the record indicate that other 

surrounding properties include office, residential, commercial, and church uses. 

Additional Information for Site Plan Review, at 2. 

According to the submitted Floor Plan, the Town’s proposed addition is a onestory addition with a basement. The Exterior Elevation Plan submitted also indicates 

that the proposed expansion incorporates the design of the existing municipal office 

building with the addition of a clock tower and complies with handicapped accessibility 

requirements, Finding of Fact 1. The Town proposes adding replacement lighting to 

mitigate the impact of lighting lost by construction of the addition. Finding of Fact 15. 
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The Town also proposes to screen the unsightly dumpster on all four sides. Finding of 

Fact 11. 

From our review of the record and the Town’s Notice of Decision, we find 

substantial evidence in the record from which the Town could conclude that the 

proposed expansion of the existing municipal office building is in such a location and of 

such a size to be in harmony with the appropriate and orderly development of the 

surrounding area. Zoning Regulations § 4.1(b). 

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that the decisions of the Town of Randolph Development Review Board granting site 

plan review approval and a zoning permit for the Town’s proposed expansion of their 

municipal office building at 7 Summer Street is AFFIRMED, as the DRB decisions are 

supported by substantial evidence in the record as a whole. Appellant’s motion for a de

novo hearing and Mr. Kevan’s motion to intervene are DENIED. Because the 

remaining questions in Appellant’s Statement of Questions raise issues not appropriate 

for this Court’s consideration, they are dismissed from this appeal. The consequence of 

all these decisions is that no questions remain outstanding. This appeal is therefore 

concluded. 

Done at Berlin, Vermont, this 30th day of March, 2006. 

 

 Thomas S. Durkin, Environmental Judge