STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Town of Richmond }

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Docket No. 44-3-03 Vtec

Decision and Order on 

Appellees= Motion to Dismiss for Lack of Standing and Appellant= s Motion for Clarification

Appellant Town of Richmond (Town) appealed from a decision of the Development Review Board 

(DRB) of the Town of Richmond granting a variance to Appellee-Applicants Patricia Dee and 

Victor Rossi. Appellant Town is represented by Mark L. Sperry, Esq.; Appellee-Applicants Victor 

and Patricia Rossi are represented by David W.M. Conard, Esq.

Appellee-Applicants moved the Court to dismiss the Town= s appeal for lack of standing. By entry 

order on August 26, 2003 the Court denied that motion; however, Appellee-Applicants requested 

and the Court granted their motion to reconsider the August 26, 2003 entry order to allow them 

time to file a reply memorandum as discussed in a previous telephone conference. Appellant 

Town moved for clarification of the August 2003 Entry Order. Appellee-Applicants own and reside 

in an old three-bedroom farm house located on the south side of Thompson Road in Richmond 

Village. The variance at issue in the present appeal would allow them to build an addition on the 

west side of the house, a portion of which would be within the front setback under the Zoning 

Regulations. 

Appellee-Applicants argue that the Town has no standing to appeal the DRB= s decision in 

granting the variance, citing Sabourin v. Town of Essex, 146 Vt. 419, 420-21 (1985) and Rossetti 

v. Chittenden County Transportation Authority, 165 Vt. 61, 66 (1990). In those decisions, the 

Vermont Supreme Court ruled that a town may not bring an appeal challenging the wisdom of a 

zoning board= s decision, but that a town may appeal a decision of its zoning board if the town 

plan or a town bylaw is at issue. See 24 V.S.A. ' 4464(b)(2).

In the present case, neither party suggests that the town plan is at issue. The Zoning Regulations 

are A at issue@ only if the town claims that the DRB has exceeded its authority or misconstrued 

a bylaw provision. See Rossetti, 165 Vt. at 66. 

All five subsections of ' 8.4.4 of the Richmond Zoning Regulations (which generally tracks the 

statutory variance requirements in 24 V.S.A. ' 4468(a)) must be met in order for the DRB, and 

hence this Court, to grant a variance. Subsection 8.4.4(b) requires a finding that, A because of 

such physical circumstances or conditions, there is no possibility that the property can be 

developed in strict conformity with the provisions of these Zoning Regulations and that the 

authorization of a variance is therefore necessary to enable the reasonable use of the property.@

Subsection 8.4.4(e) requires that A the variance, if authorized, shall represent the minimum 

variance that shall afford relief and shall represent the least deviation possible from these Zoning 

Regulations and from the Town Plan.@
In Sabourin, the board A expressly considered each of the five requisite criteria set forth in the 

statute,@ and the Court therefore concluded that the bylaws were not A at issue,@ but only the 

wisdom of the board= s decision. Sabourin, 146 Vt. at 420. By contrast, in the present case, the 

DRB only made two factual findings, both of which pertain only to the first of the five variance 

criteria: that A the parcel of land owned by the applicants had a unique shape that limits any 

proposed addition@ and that A there are wet lands restricting the development to the rear.@ The 

DRB did not address whether the existing residential use being made of the property was a 

reasonable use (' 8.4.4(b)), nor did it address whether an addition could be built onto the side and 

back of the house that would constitute a lesser deviation from the Zoning Regulations. ' 8.4.4(e).

Due to the very limited factual findings and entirely conclusory recitations of the variance criteria 

in the DRB decision, the Court cannot here determine whether or not the DRB actually 

considered all five of the variance criteria; that is, whether it acted within the ambit of its variance 

authority. In the present case, the Town claims that the DRB exceeded its authority and 

misconstrued the law by applying the wrong variance standard in the decision on appeal, or, 

rather, by failing to apply some of the five criteria for a variance. The Town therefore has standing 

to bring this appeal, as its claim is that the DRB misconstrued the Zoning Regulations. 

Accordingly, based on the foregoing, Appellee-Applicants= Motion to Dismiss for Lack of 

Standing is DENIED. 

In additionally, the Town seeks clarification of the August 26, 2003 Entry Order as to whether the 

appeal involves the interpretation of Criterion 2 or Criterion 3 of the variance criteria. The Town=

s Statement of Questions raises the issue of whether the property is already being put to a 

reasonable use, which is the second, not the third, of the five variance criteria. We agree that the 

August 2003 Entry Order contains a clerical error. The second sentence of the August 2003 Entry 

Order is corrected to read as follows (corrections in bold type): 

The Town has standing to address the interpretation of criterion 2 (' 8.4.4(b)) of the variance 

criteria; that is, in that sense the Town= s zoning ordinance is > at issue.=

See V.R.C.P. 60(a) (clerical mistakes may be corrected by the court at any time of its own 

initiative or on the motion of any party).

The remaining hearing on the merits of the variance application is scheduled for 9 a.m. on 

November 6, 2003 at the Costello Courthouse, 32 Cherry Street, Burlington. Please advise the 

Court on or before October 17, 2003 whether that hearing will be needed or whether the parties 

will submit the remaining issues on agreed facts, and whether the parties request a telephone 

conference in advance of the hearing.

Done at Barre, Vermont, this 7th day of October, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes