On July 27, 1984, the Shedds conveyed by warranty deed = to Allen Simoneau and Sal Wiggin a 5.78-acre parcel of land with frontage on = Route 104A, directly easterly of the Van Brocklin (former Parah) lot. In that deed, the Shedds stated t= hat the Simoneau/Wiggin parcel was Asubject to a certain right-of-way to be used in common = by the Grantors, their heirs and assigns, and others,@ and described the >right-of-way=3D as being Alocated along the westerly line@ of the Simoneau/Wiggin lot^{^[3]}.

In 1985, the Youngs, owners of one of the back lots with access by this easement, sou= ght ZBA approval of improvements on their property. The ZBA approval was first denied= and later granted, subject to proof that the easement serving their property w= as at least 25 feet in width. At t= he request of Lawrence Young, on June 24, 1985, the Shedds and Allen Simoneau= and Sal Wiggin (but not Van Brocklin) entered into an agreement stating it was= their understanding that the right-of-way referred to in the Shedd-to-Simoneau/W= iggin deed Ahas been, is, and shall be twenty-five (25) feet in wid= th over its entire length.@ It is th= is agreement that Appellant argues was Afraudulent.@

Because Van Brocklin was not a party to that agreement,= we note that the signatories to that agreement only had authority to agree ab= out the width of the easement as it extended over what was then the Simoneau/W= iggin property (and onto the Shedd property), as those were the owners of the la= nd underlying the easement. The= ir agreement could not and did not purport to extend the easement onto what w= as then the triangular deeded parcel of Van Brocklin land. However, only the Franklin Superi= or Court then had or now has jurisdiction to locate that easement on the ground. In any event, nothin= g about their agreement as to the width of the easement demonstrates that it was o= btained through fraud.

Less than a month later, on July 15, 1985, Van Brocklin= , the Youngs and the Shedds, (but not Simoneau and Wiggin), entered into a separ= ate agreement providing that the center line of the right-of-way was the center line of the then-existing traveled way (gravel drive). If, as alleged in the Superior Co= urt proceedings, Van Brocklin was unaware of the earlier 25-foot-width agreement b= etween his neighbors when he agreed to the location of the centerline, any ground= s for an argument that this centerline-location agreement was fraudulently procu= red should have been made to the Superior Court, the only court with jurisdict= ion over any such argument. The = fact that no such argument appears to have been made in either the 1986 or the = 1999 Superior Court cases cannot be remedied in this Court.

By this time in 1985, it appears that the then-owners o= f the properties, that is, at least Van Brocklin, Simoneau and Wiggin, and the S= hedds (their common grantors), disagreed as to whether the traveled way was loca= ted on Van Brocklin property or on Simoneau/Wiggin property, and possibly also disagreed as to whether the underlying easement was located on Van Brocklin property or on Simoneau/Wiggin property, or in part on both properties.

In 1986, Van Brocklin brought an action in Franklin Sup= erior Court to resolve those questions. <= /span>Van Brocklin v. Shedd, Franklin Superior Court Docket No. S301-86 Fc. We do not have before us the file= in that 1986 action that might reveal whether the parties addressed the distinction between the width and location of the traveled way as opposed = to or as compared with the width and location of the underlying easement. If the two 1985 agreements were o= n their face mutually incompatible as they affected the first hundred feet of the gravel drive, from Route 104A to the rear of the house, that argument shou= ld have been made to the Superior Court, the only court with jurisdiction over it. In their 1986 litigation= , the then-parties could have resolved whether the agreement about the width of = the easement (which would have had to have extended the easement onto Simoneau/Wiggin property to avoid affecting the deeded Van Brocklin triang= le, as Van Brocklin was not a signatory to it) was incompatible with the agree= ment as to the location of the centerline of the easement (which Simoneau and W= iggin had not signed.)

= In any event, that litigation, Van Brocklin v. Shedd, Docket No. S301-= 86 Fc, was settled in 1988 by an agreement among Van Brocklin, the Shedds, Simoneau and Wiggin. The sur= vey that resulted from that settlement established the location of the travele= d way (gravel drive) within the Van Brocklin parcel, established the new property line, and obligated the users of that access not to expand it any farther = to the west than its then-present location.&= nbsp; In that settlement, the Shedds and Simoneau and Wiggin quitclaimed = to Van Brocklin all right and title they had to any property westerly of the = newly surveyed easterly property line of the Van Brocklin parcel, which was established just to the east of the traveled way (and included additional = land so that the water supply for the Van Brocklin parcel formerly on Shedd land would be located on Van Brocklin land).&n= bsp; That settlement was, however, silent as to the location of the trav= eled way (the gravel drive shown on the 1988 survey) within the easement, and d= oes not appear to have vacated or withdrawn or superseded either of the 1985 agreements. Any need on the = part of those litigating parties or their successors to reopen that settlement to clarify the location of the traveled way within the easement, or the locat= ion of the easement on the ground, should have been addressed or should be addressed to the Franklin Superior Court.= This Court has no jurisdiction to affect a Superior Court settlemen= t or judgment, whether issued eighteen years ago or more recently. <= /span>

In 1992, Van Brocklin deeded the parcel to another owne= r, who quitclaimed it in 1996 to Appellant Bowman.

In 1996, Appellant filed the present appeal of a grant = of zoning approval to Appellee-Applicants Ackerman, claiming that their acces= s to Route 104A was not at least 25 feet in width. After an evidentiary hearing at w= hich only the Town was represented by counsel, the Environmental Court issued a decision that the Ackerman property had access by a right-of-way or easeme= nt at least 25 feet in width (although finding the traveled way to be narrower), based on the June 24, 1985 agreement, and concluding that Appellee-Applica= nts Ackerman were entitled to th= eir permit. The Vermont Supreme = Court upheld that decision in a three-justice-panel decision in March of 1998. The Environmental Court had no jurisdiction then, and still has no jurisdiction, to reform either of the = 1985 agreements or to reopen or otherwise alter the 1988 settlement of Van Brocklin v. Shedd. The Environmental Court did not and could not locate that easement on the grou= nd, or rule on the location of the gravel drive within the easement, or on whe= ther some portion of the easterly side of the easement was located on Simoneau/Wiggin property. Al= l that it had before it to decide, and that it did decide on March 7, 1997, was t= hat Appellee-Applicants Ackerman had met their burden of proof under the Zoning Regulations to show that they had access to their property by a 25-foot-wi= de easement. Nothing about the subsequent litigation in Superior Court or the Supreme Court has changed t= hat fact.

In 1999, Appellant filed an action to quiet title and f= or declaratory judgment in Franklin Superior Court to establish the property rights that were outside the Environmental Court=3Ds jurisdiction, and to prevent the Ackermans from exten= ding the traveled way farther to the west, that is, closer to Appellant Bowman<= /span>=3Ds house. = Bowman v. Ackerman, et al., Docket No. S217-99 Fc. In that litigation, the Franklin Superior Court accepted the 25-foot-width of the underlying easement as found by the Environmental Cou= rt from the 1985 agreement. The Verm= ont Supreme Court affirmed the Franklin Superior Court=3Ds reliance on the Environmental Court=3Ds finding regarding the width of the right-of-way, see = Bowman v. Ackerman, et al., Docket No. 2003-133 (October 2, 2003) (mem.), as = well as the Franklin Superior Court=3Ds dismissal of Simoneau and Wiggin from that litigation= .

However, accepting that width for the easement did not locate the easement on the ground in relation to the traveled way. It was up to the Superior Court a= nd not the Environmental Court to determine the effect of the 1988 settlement on = the earlier 1985 agreements, and whether to take evidence on or reopen the 1988 settle= ment to establish the location of the ten-to-fourteen-foot-wide traveled way (g= ravel drive)within the twenty-five-foot-wide easement. The fact that it did not do so an= d that the Supreme Court upheld its decision is not within the jurisdiction of this C= ourt to address.

Accordingly, based on the foregoing, Appellant=3Ds Motion for Relief from Judgment, seeking to reopen th= is Environmental Court appeal, is DENIED.&nb= sp; The above-captioned case remains concluded and we therefore do not = reach Appellant=3Ds motion for summary judgment.

Rule 11 Sanctions and Timeliness

Although Appellant has brought these issues to Superior Court as well as to this Court, and the Supreme Court has upheld both lower courts, his filing of the motion for renewed relief from this Court= =3Ds March 1997 decision is not frivolous or presented for= an improper purpose so as to warrant V.R.C.P. 11 sanctions, it merely reflect= s an unrepresented party=3Ds lack of understanding of the scope of Environmental C= ourt jurisdiction. Appellant was entitled to use every effort to try to bring his issues regarding the widt= h, location and use of the easement before a court with jurisdiction to decide them. Although the Environme= ntal Court does have jurisdiction to determine whether a permit applicant has m= et all the requirements of the zoning ordinance, including whether the permit applicants have met their burden of proof that they have access to their property over an easement of a certain minimum width, it does not have jurisdiction to determine the underlying property rights of the affected parties. However, at t= he time of this Court=3Ds 1997 decision and order, this Court had not yet had occasion to make that distinction clear in a court ruling. See, e.g., Appeal of Co= le, 174-10-01 Vtec (Vt. Envtl. Ct., May 12, 2003).

Appellant=3Ds motion for relief from judgment was originally made shortly after the Superior Court decision relying on the Environmental Cou= rt=3Ds decision, and therefore was timely when made. This Court postponed it until aft= er the appeal to the Supreme Court of the related Superior Court action would have been concluded, as the issues in that appeal could have affected Appellant= =3Ds perceived need for reconsideration in the present appeal. Appellant=3Ds renewed motion was timely after the Supreme Court=3Ds ruling on the Superior Court appeal.

Accordingly, Appellees=3D Motion for Rule 11 Sanctions is DENIED.

Because the 1988 settlement prohibited the expansion of= the gravel drive westerly of its extent as of the 1988 survey, it may be to the advantage of the parties to use the assistance of a mediator to see if the= y can come up with a resolution to govern the relationship of these properties a= nd the use of the traveled way into the future, and to avoid future litigatio= n in Environmental or Superior Court.

We also note that we have scheduled a conference for Ju= ly 5, 2005, with Mr. Bowman and the Town=3Ds attorney to discuss Docket No. 163-10-01 Vtec; notice enclosed for the participating parties in that separate appeal.=

Done at Berlin, Vermont, this 21^st day of Ju= ne, 2005.

_________________________________________________<= /o:p>

Merideth Wright

Environmental Judge