Woodstock Community Trust, Inc. & Housing Vt. PUD ( 2007 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
Woodstock Community Trust, Inc., and }
Housing Vermont Planned Unit Development } Docket No. 263-11-06 Vtec
(Appeal of Roy, et al.) }
}
Decision and Order on Motions to Dismiss and for Partial Summary Judgment
Appellants David Roy, Richard Roy, Michael Hirschbuhl, Tod Minotti, and Mark
Stanglin (Appellants) appealed from a decision of the Development Review Board (DRB)
of the Town of Woodstock issued on November 3, 2006. The decision first granted
reconsideration (by a 5-to-2 vote) of the DRB’s April 7, 2006 denial of an application
submitted by Appellee-Applicants (Applicants) Woodstock Community Trust, Inc. and
Housing Vermont for preliminary approval1 of a Planned Residential Development2
located at 473 Woodstock Road, and then granted preliminary approval of the application
by a 4-to-3 vote.
1
The zoning ordinance has not been provided. The materials refer to the
application as being for “preliminary plat” approval, “preliminary” planned development
approval, or “preliminary conditional use and site plan approval.” The type of application
affects the notice requirements imposed by 24 V.S.A. §4464(a)(1) as compared with those
imposed by §4464(a)(2).
2
The application asks for approval of a PRD, although Applicants’ attorney stated
at least at the October 24, 2006 hearing that the project does not request the waiver of any
of the regulations that would otherwise be applicable to a multiple building residential
project. There is no dispute that the project proposes 36 units of affordable housing in 13
to 15 residential style buildings ranging from duplex to 4-unit structures, with
approximately ten units to be owner-occupied and the remainder to be rental units,
clustered on a portion of a 7.51-acre parcel.
1
Appellants are represented by Kaveh S. Shahi, Esq.; Appellee-Applicants are
represented Daniel C. Hershenson, Esq.; and the Town of Woodstock is represented by
Todd C. Steadman, Esq. Questions 3, 7, and 11 of the Statement of Questions were
dismissed in a December 5, 2006 order of the Court, as this is a de novo proceeding. The
Town has moved to dismiss Questions 4 and 8 of Appellants’ Statement of Questions.
Appellants and the Town have each moved for summary judgment on Questions 1, 2, 5,
and 6 of Appellants’ Statement of Questions. The following facts are undisputed unless
otherwise noted.
On January 26, 2006, Applicants filed Application #T-3683-06 for preliminary
approval of a 36-unit Planned Residential Development (PRD) located at 473 Woodstock
Road in a Residential Medium Density zoning district of the Town of Woodstock. The DRB
held public hearings on the application on February 28, 2006 and March 28, 2006. The DRB
holds its regularly-scheduled meetings on the fourth Tuesday of each month. At the March
28, 2006 public hearing, the DRB unanimously voted to deny the application as presented;
the DRB issued its written Notice of Decision denying the application on April 7, 2006.
On April 14, 2006, within the time for appeal of the April 7, 2006 decision, Applicant
submitted a letter to the Town Planner requesting that the DRB reconsider its denial of the
application. At its regularly-scheduled meeting on April 25, 2006, the DRB must have
discussed the letter and scheduled the matter for hearing at the May 23, 2006 hearing of the
DRB, because paragraph 3 on page 1 of the DRB’s June 1, 2006 Notice of Decision on the
reconsideration states that the issue of reconsideration was “continued to tonight [that is,
the May 23, 2006 hearing] under certain conditions: that abutters be notified and that a full
board be present.” As the May 23, 2006 hearing would occur after the time for appeal
would have expired, on May 4, 2006 Applicants also filed an appeal to this court of the
April 7, 2006 decision; this appeal received Docket No. 99-5-06 Vtec.
At the May 23, 2006 hearing the DRB reviewed approximately twenty letters
2
addressing the reconsideration request, but the DRB does not appear to have taken any
evidence or testimony about whether to reconsider. The DRB voted 7-to-0 to grant the
reconsideration, that is, to reopen the hearing on the merits of the application for
preliminary approval of the PRD proposal. Directly after that vote the DRB proceeded to
take testimony from representatives of the Applicant, from Appellant Minotti, and from
others not now involved in this litigation. The DRB then closed the testimony, deliberated,
and voted 6-to-1 to grant preliminary approval to the application. In its written decision
issued June 1, 2006, the DRB noted that certain “concerns” would be addressed at what it
characterized as “the formal application stage;” it listed these issues as: “density, mass,
architectural compatibility, traffic, landscaping, lighting, parking, pedestrian needs, and
being sensitive to the immediate neighborhood.” The DRB issued two separate written
decisions on June 1, 2006, one granting reconsideration and one granting preliminary
approval3 of the application.
On June 30, 2006, Appellants filed an appeal to this court of the June 1, 2006
decisions; this appeal received Docket No. 152-6-06 Vtec. After the initial conference was
held in Docket No. 152-6-06 Vtec pursuant to V.R.E.C.P. 2(d), on August 17, 2006, the Town
requested the Court to remand Docket No. 152-6-06 Vtec pursuant to V.R.E.C.P. 5(i). The
Town recognized that the DRB’s hearing in May had not been properly noticed or
conducted in accordance with the principles discussed in In re: Appeal of Dunn, et al.,
Docket No. 2-1-98 Vtec (Vt. Envtl. Ct., Mar. 8, 1999), and requested the remand to allow the
DRB to properly warn the public hearing and take evidence. Appellants filed with the
3
Docket No. 99-5-06 Vtec (the appeal of the denial of preliminary approval) was
dismissed by the Court (without prejudice to further proceedings on the application) after
the DRB issued its June 1, 2006 grant of preliminary approval. Woodstock Community
Trust, Inc. and Housing Vermont have moved to reinstate Docket No. 99-5-06 Vtec to bring
the merits of the application before this Court.
3
Court their agreement to the remand of Docket No. 152-6-06 Vtec, as long as their rights
were preserved to raise all issues in a future appeal. The Court granted the remand, stating
in its entry order that any new appeal from the remanded proceedings would be a new
case with a new docket number, but that if such an appeal were to be filed, “appellants who
were parties to [Docket No. 152-6-06 Vtec] or Docket No. 99-5-06 Vtec may raise any issues
[in the new appeal that] they could have raised in those respective appeals.”
In the remanded proceedings before the DRB, on August 30, 2006, Applicants filed
a new application for preliminary approval of the same 36-unit PUD that was the subject
of the earlier application (although the project was renamed the Grange Hill project and
the application was assigned a new application number: #T-3767-06).
The DRB scheduled a public hearing on the application for September 26, 2006, and
mailed a notice of the hearing to adjoining property owners. A copy of the notice is
appended to this decision.
The notice stated that the purpose of the hearing was “to consider zoning
application: T-3767-06 filed by [Applicants] seeking Preliminary Conditional Use & Site
Plan Approval” and, in the text of the notice, stated that the hearing was:
To determine whether or not the TDRB should reconsider the Preliminary
Application of Woodstock Community Trust Inc., in which Preliminary
Approval per Section 313C.2 was sought for the Planned Development of 36
units of Affordable Owner Occupied (+/-10) and Rental (+/-26) Housing in 13-
15 Residential Style Buildings ranging from duplex to fourplex structures.
If it is determined that the TDRB will reconsider the Preliminary Application,
then a hearing will immediately follow during which the Preliminary
Application will be reconsidered. The Board will accept evidence and
argument on both matters.
The notice also contained a warning that: “participation in this local proceeding is a
prerequisite to the right to take any subsequent appeal,” and that such an appeal must be
filed within thirty days of the date of the decision. It stated that a “copy of the application
4
and additional information” was available for review at the Zoning and Planning Office,
and gave a telephone number to call “if you have any questions or concerns regarding this
application.”
At the scheduled public hearing of the DRB held on September 26, 2006, only four
of the seven DRB members were present. Under 24 V.S.A. §4461(a), four of the seven
members, that is, a majority of the DRB, is a quorum allowing the DRB to proceed to
conduct the hearing. However, also under §4461(a), any action of the DRB “shall be taken
by the concurrence of a majority of the members” of the DRB, so that at that hearing all
four members who were present would have had to have agreed in order to take any
action.
The DRB took testimony on the request to reconsider, closed the testimony,
deliberated, and voted. The vote was 3-to-1 in favor of reconsideration, so that it was not
effective as a DRB action under §4461(a). The DRB therefore treated the vote as “non-
binding” and stated at the public hearing that the request for reconsideration would be
“continued to the next meeting,” that is, to the regularly-scheduled October meeting, “for
further deliberation when more TDRB members are present.”
No additional notice of the October DRB meeting was sent to the adjoining
landowners. As described in the November 3, 2006 DRB decision, Attorney Shahi had sent
the DRB two letters between the September 2006 and the October 24, 2006 hearings,
arguing that “reconsideration was not an option” and stating that a revised personal notice
of the October hearing had not been sent to adjoining landowners. On September 29, 2006,
in a letter to the Town’s attorney, and on October 17, 2006, in a letter to the Chair of the
DRB, Attorney Shahi also expressed his clients’ objections to the prospective participation
of any absent DRB members in the continued hearing if they had already decided their
prospective votes in favor of reconsideration. Attorney Shahi, Appellant Hirschbuhl,
Appellant Minotti, and one of the Appellants Roy attended and spoke at the October 24,
5
2006 hearing.
At the October 24, 2006 hearing, all seven of the DRB members were present. The
DRB reopened the evidentiary portion of the hearing on whether to reconsider, took
additional evidence and arguments, including from Attorney Shahi and from Appellants
Hirschbuhl, Minotti, and Roy, deliberated, and then voted 5-to-2 in favor of granting the
request for reconsideration, that is, to reopen the hearing on preliminary approval.
At the October 24, 2006 hearing, after voting to reconsider, the DRB proceeded
immediately to what it characterized as the “rehearing” on the merits of the preliminary
application. After taking additional evidence and hearing arguments, the DRB voted 4-to-3
in favor of granting preliminary approval for Applicants’ proposed planned development
project. The DRB issued a single written decision on November 3, 2006, the first section of
which granted reconsideration, and the second section of which granted preliminary
approval of the application. These decisions are the subject of the present appeal, Docket
No. 263-11-06 Vtec.
Motion to Dismiss Questions 4 and 8
The Town moved to dismiss Questions 4 and 8, which ask whether the DRB
“improperly utilized” the “‘reconsideration’ procedure” (Question 4) or the “re-hearing on
‘reconsideration’ procedure” (Question 8) to allow the applicant “to circumvent the proper
appeal process” applicable to the March 2006 denial decision.
In granting the remand of Docket No. 152-6-06 Vtec, the Court specifically allowed
Appellants, as parties to the remanded Docket No. 152-6-06 Vtec, or to the dismissed-as-
moot Docket No. 99-5-06 Vtec, to raise any issues in the present appeal that they could have
raised in those two former appeals. While the Town may be correct that the motivation or
intent of the DRB members is not necessarily relevant in a de novo appeal, Questions 4 and
8 do not focus on the motivation or intent of the DRB, rather, they raise issues of whether
6
a DRB may reconsider a denial decision at all. These issues were within the scope of
Docket No. 152-6-06 Vtec and therefore may be raised by Appellants in the present appeal.
They do not entirely duplicate Question 1 or Question 9, although there is some overlap.
Accordingly, Questions 4 and 8 are within the scope of the present appeal, and the
Town’s Motion to Dismiss them is DENIED.
Cross-Motions for Summary Judgment on Questions 1, 2, 5, and 6
Questions 1, 2, 5, and 6 raise issues of whether the DRB was authorized under the
applicable law to ‘reconsider’ its earlier decision of March 28, 2006; whether it followed
proper procedure in proceeding with a hearing on whether to reconsider; whether the DRB
was authorized under the law to hold a hearing on the application for preliminary
approval immediately following its decision to grant reconsideration, without additional
notification; and whether it followed proper procedure in conducting that hearing on the
application for preliminary approval. With respect to the procedure used in conducting
both hearings, Questions 2 and 6 specifically include but are not limited to whether a notice
of hearing was provided, whether it was adequate, and whether it contained sufficient
explanation as to the nature of the hearing and its potential consequences. With respect to
the conduct of the hearings,4 Questions 2 and 6 specifically include but are not limited to
whether the participants were given the opportunity to present testimony and other
evidence.
4
The procedures required by the Vermont Municipal Administrative Procedure
Act, 24 V.S.A. §1201 et seq., are not applicable to these proceedings, as the Town of
Woodstock has not elected to proceed under that statute or to have its decisions reviewed
on the record. Rather, a de novo standard of review applies in this Court to the decisions
of this DRB. 10 V.S.A. §8504(h).
7
Question 1 of the Statement of Questions
Appellants argue that a DRB may not reconsider a decision once it has voted, and
that no remand or reconsideration provision is found in the enabling statute. We must
consider the DRB’s April–May reconsideration (which resulted in the June 1, 2006 decision
appealed to the Court in Docket No. 152-6-06 Vtec), separately from the DRB’s
September–October reconsideration (which resulted in the November decision appealed
to the Court in the present appeal), as the latter decision resulted from the remand
procedure explicitly provided in V.R.E.C.P. 5(i). And see 24 V.S.A. §4464(a)(5), final
sentence.
Without regard to the remand procedure contemplated by V.R.E.C.P. 5(i), a DRB is
entitled to reconsider its own decision, with certain limitations as to the appropriate time
frame and procedure. First, by specifically providing that a DRB may reject a request for
reconsideration out of hand (that is, without holding a hearing) if it involves no new facts
or issues, 24 V.S.A. §4470(a) (20045) implicitly recognizes that a DRB may entertain and
grant a request for reconsideration. Nothing in §4473 alters this conclusion.
Moreover, prior to the enactment of the statutory amendments effective in 2004, this
procedural question was fully analyzed in In re: Appeal of Dunn, et al., Docket No. 2-1-98
Vtec (Vt. Envtl. Ct., March 8, 1999); that reasoning remains sound. Prior to this Court’s
decision in Dunn, the Vermont Supreme Court in Nash v. Warren Zoning Board of
Adjustment, 153 Vt. 108, 114 (1989), had allowed a municipal zoning authority to reopen
a proceeding sua sponte (but within the thirty-day appeal period), to hold a newly-warned
hearing to receive new evidence, and to issue a new decision.
5
Prior to the statutory amendments effective in 2004, the former language (codified
in former §4470(b)) specifically provided for such procedure applicable to successive
appeals taken to the DRB, but did not apply it to requests made directly to the DRB for
reconsideration of its own decisions.
8
The Supreme Court recognizes that, in Vermont, a municipal panel making a land
use decision “is a board of lay[persons], carrying out a proceeding intended to offer redress
without insistence on technical procedural rules,” In re Crescent Beach Ass'n, 126 Vt. 140,
141 (1966), although it must be held to basic requirements, including that of making
adequate findings to advise the parties of what was decided and “how a board’s decision
was reached based on the evidence submitted.” In re Appeal of Leikert, Docket No. 2004-
213 (Vt. Supreme Ct., Nov. 10, 2004) (three-justice panel), slip op. at 2, and cases cited
therein.
In general, as discussed in In re Maple Tree Place, 156 Vt. 494, 499–500 (1991), it is
better practice to allow a municipal panel to correct its own mistakes in the first instance,
rather than to require such mistakes to be dealt with by the court on appeal, especially as
the Court is “beyond its role as an appellate tribunal, even under a de novo review
standard, to start addressing new issues never presented to the [municipal panel] and on
which interested persons have not spoken in the local process.” Id. at 500.
In Dunn this Court noted that a balance must be struck between the value of
allowing a municipal panel to reopen and correct its own decisions, and the right of
litigants “to a reasonably prompt certainty of decision at the municipal level, so that they
can act on or appeal a granted or denied permit.” Id., slip op. at 4–5. Thus, as in that case,
if a municipal panel decides sua sponte to reopen a decision, it must decide to do so and
notify the parties of that decision before the time has expired for an appeal of the original
decision, so that no party would be disadvantaged either by failing to take a timely appeal
or by acting on the permit after the time has expired for an appeal to be filed. Also see
Nash, 153 Vt. at 114, n.6. Further (at least prior to the Vermont Supreme Court’s adoption
of V.R.E.C.P. 5(i) under the authority of 24 V.S.A. §4471(a) (“as the supreme court may by
rule provide”)), the municipal panel’s decision to reopen “must be supported by good
cause.” In re Maple Tree Place, 156 Vt. at 502.
9
This Court in Dunn balanced these policy considerations as they existed prior to the
2004 statutory amendments, and set out the procedure for a municipal panel properly to
reopen or reconsider one of its decisions, in the absence of an appeal to or a remand from
this Court. The essential elements of that process are that the participants in the local
process must be made aware of the potential for reopening the original decision prior to
the expiration of the time for appeal of that original decision. The panel must then provide
proper statutory notice of the hearing to be held on the merits of the reopened decision.
At the hearing to be held on the merits of the reopened decision, the panel must allow all
interested parties to present any additional evidence and argument at the hearing on the
reopened decision.
Nothing about a DRB’s decision to reconsider “circumvents” the “proper” appeal
process; it simply returns the DRB’s proceedings on the application to the point before the
DRB would have voted on the merits of the application. Particularly when an application
is in its “preliminary” phase, such reconsideration may allow a municipal panel to
complete its responsibilities before the matter is taken up by the Court, and reduce the
number of intermediate appeals taken during successive phases of a single proceeding.
See, generally, the discussion of preliminary plat review in In re Appeal of Carroll, 2007 VT
19, ¶¶13, 16.
However, as the parties were not given the opportunity to address Question 4 of the
Statement of Questions on summary judgment we will not rule on it in this decision (just
as, with regard to a V.R.C.P. 12(b) motion to dismiss or 12(c) motion for judgment on the
pleadings, conversion to summary judgment must be done with notice and the opportunity
for responses). Please be prepared to discuss it at the conference scheduled in the final
paragraph of this decision.
In the present case, in the first round of reconsideration prior to this Court’s remand
of Docket No. 152-6-06 Vtec, while the DRB did have authority to reopen its April 7, 2006
10
decision, and did act on that authority by scheduling the hearing on reconsideration prior
to the expiration of the appeal period, the DRB failed to allow the interested parties to
present additional evidence, as well as argument, at the hearing on the merits of the
reopened decision. Appellants’ initial appeal of the June 1, 2006 decision of the DRB
granting preliminary plat approval (Docket No. 152-6-06 Vtec) properly raised that issue.
The parties recognized the procedural deficiencies6 that resulted in the request to remand
the matter to be done properly by the DRB. If the Court had considered that issue on
summary judgment in Docket No. 152-6-06 Vtec and had ruled in Appellants’ favor, that
consideration would only have taken a longer time to reach the same result: to vacate the
DRB decision on the merits of the reopened preliminary approval decision and to remand
the matter to the DRB for it properly to notice and conduct that hearing. 24 V.S.A.
§4464(a)(5).
Once the June DRB reconsidered decision granting preliminary approval was under
appeal to this Court in Docket No. 152-6-06 Vtec, however, that appeal was governed by
the Vermont Rules for Environmental Court Proceedings, which have their statutory basis
in 24 V.S.A. §4471(a) with respect to municipal appeals, as well as in 4 V.S.A. §1001(g).
Those rules provide that “[a]t the request of the tribunal appealed from, the court, at any
time prior to judgment, may remand the case to that tribunal for its reconsideration.”
V.R.E.C.P. 5(i). This Court granted the request for remand in an Entry Order dated August
25, 2006, noting that in any future appeal from the DRB proceedings after remand, the
parties to Docket No. 152-6-06 Vtec or Docket No. 99-5-06 Vtec could raise in such new
appeal (that is, the present appeal) “any issues they could have raised in those respective
appeals.”
6
To the extent that Questions 2 and 6 of the Statement of Questions refer to the
procedures for the May 2006 hearing leading to the June 1, 2006 decision, they are moot at
the present time, due to the remand.
11
As V.R.E.C.P. 5(i) explicitly provides for a remand for reconsideration at the request
of the DRB “at any time prior to judgment,” the mere occurrence of reconsideration by the
DRB in September and October of 2006, could not “circumvent” the “proper appeal
process.” Rather, remand for reconsideration pursuant to V.R.E.C.P. 5(i) is now an integral
part of that process. Accordingly, summary judgment must be granted in favor of the
Town and of Applicants on Question 1 of the Statement of Questions: the DRB was
authorized under applicable law to reconsider its denial of preliminary approval, both
when it initially decided to do so, and after remand of Docket No. 152-6-06 Vtec by this
Court.
Questions 2, 5, and 6 of the Statement of Questions
The motions for summary judgment on Questions 2, 5, and 6 of the Statement of
Questions raise issues regarding the adequacy of such notice7 as was provided to adjoining
landowners and to other potentially interested parties of the public hearing held on
September 26, 2006 and continued to October 24, 2006.
The statutory requirements for public notice of warned public hearings are found
in 24 V.S.A. §4464(a)(1) and (2), depending on the type of application. The parties’
arguments refer to §4464(a)(2) and do not argue that §4464(a)(1) was applicable to this
7
Questions 2, 5, and 6 are stated in broader terms than merely raising issues as to
adequacy of notice. To the extent that they address whether the hearings were properly
conducted, such issues are not before the Court as these appeals are de novo. However,
the issue of whether the DRB could warn and hold a hearing on the application for
preliminary approval immediately following and contingent on its decision to grant
reconsideration, without additional notification, is before the Court on the present motions.
At the conference scheduled in the final paragraph of this decision, the parties should be
prepared to address whether anything remains of Questions 2, 5, or 6 after the present
decision.
12
application for preliminary approval.8
Section 4464(a)(2) requires the municipality to give public notice not less than seven
days prior to the hearing, by posting the date, place, and purpose of the hearing in three
or more public places and by written notification “to the applicant and to the owners of all
properties adjoining” the subject property. The written notification is required to “include
a description of the proposed project and shall be accompanied by information that clearly
informs the recipient where additional information may be obtained, and that participation
in the local proceeding is a prerequisite to the right to take any subsequent appeal.”
The notice of the September 26, 2006 hearing states the date and place of the
hearing, informs the recipient where additional information may be obtained, and advises
that participation in the local proceeding is a prerequisite to the right to take any
subsequent appeal. Appellants do not argue that the notice was not properly posted, nor
do they claim that the notice of the September 26, 2006 hearing was not mailed to the
adjoining landowners.
Rather, Appellants argue that the notice of the September 26, 2006 hearing was
inadequate because its description of the proposed project failed to provide an explanation
of the ‘reconsideration’ process, failed to state the decision that would be reconsidered,
failed to state the basis for the reconsideration process or what would constitute grounds
for reconsideration, and failed to explain that the hearing on whether to reconsider was
being combined with a contingent rehearing on the merits of the application in the event
reconsideration were to be granted.
The statute only requires a description of the proposed project, not any description
of the proposed action on the agenda of the hearing. Nevertheless, the notice of the
8
In addition to the requirements of §4464(a)(2), §4464(a)(1) requires publication of
the date, place, and purpose of the hearing in a local newspaper, and sets an advance notice
period of at least fifteen days prior to the hearing.
13
September 26, 2006 hearing was adequate under both interpretations. It gave the names
of the applicants, the current application number, and both the address and the tax number
for the property. It described the project fully as “the Planned Development of 36 units of
Affordable Owner Occupied (+/- 10) and Rental (+/- 26) Housing in 13–15 Residential Style
Buildings ranging from duplex to fourplex structures.” The notice provided the additional
information that the hearing was “to determine whether or not [t]he []DRB should
reconsider the Preliminary Application of Woodstock Community Trust, Inc., in which
Preliminary Approval per Section 313C.2 [of the zoning ordinance] was sought for the
Planned Development” as described. The notice provided the further additional
information about the sequence of the hearing that “[i]f it is determined that the []DRB will
reconsider the Preliminary Application, then a hearing will immediately follow during
which the Preliminary Application will be reconsidered,” that is, on the merits of the
application, and advised the reader that the DRB “will accept evidence and argument on
both matters.”
Moreover, the statute does not require that any of that additional information be
included in the notice, beyond the description of the project itself, which was satisfied in
the notice. Rather, the notice must only “clearly inform[] the recipient about where
additional information can be obtained,” 24 V.S.A. §4464(a)(2)(B), so that any potentially
interested party could find out more about what was to be dealt with at the hearing
regarding the particular project. The notice met this standard; if any information was
lacking from the notice itself, the notice was effective to put any potentially interested
party, including Appellants, on notice to inquire at the Zoning and Planning Office, or by
calling the telephone number provided on the notice.
Not only was the notice of the September 26, 2006 hearing sufficient to satisfy the
14
statute,9 but it represented at least a reasonable effort to provide adequate notice and was
not “materially misleading in content.” 24 V.S.A. §4464(a)(5) provides that “[n]o defect in
the form or substance of any requirements in [§4464(a)(2)] shall invalidate the action of the
[DRB] where reasonable efforts are made to provide adequate posting and notice” if such
defects are not “materially misleading in content.”
The September 26, 2006 public hearing was then continued “to the next meeting.”
The parties do not dispute that the regularly-scheduled meetings of the DRB are held on
the third Tuesday of every month at 7:30 at the Town Hall, nor that the next meeting after
the September 26 hearing was on October 24, 2006. At the September 26, 2006 DRB
meeting, the Zoning Administrator announced October 24, 2006 as the date of the next DRB
meeting. The only remaining issue is whether a new written notice of the continued date
for the hearing had to have been sent to the adjoining landowners.
A continued hearing does not require separate notice, so long as participants at the
first hearing are informed10 as to when and where the continued hearing will take place.
In re McEwing Services, LLC, 2004 VT 53, ¶17 (stating that “the board may continue the
9
In any event, the statutory remedy under 24 V.S.A. §4464(a)(5) for even defective
notice resulting in “invalid” action of the DRB is that “the action shall be remanded to the
[DRB] to provide new posting and notice, hold a new hearing, and take a new action.” That
is, if the notice had been defective, the remedy would have been yet another remand for
the DRB to try once again, not the denial of the application. The statute, as well as case law,
demonstrates a preference for deciding cases on their merits, if possible. V.R.E.C.P. 1;
Desjarlais v. Gilman, 143 Vt. 154, 158–59 (1983); and see, e.g., Appeal of V.G. General Store,
Inc., Docket No. 84-5-04 Vtec (Vt. Envtl. Ct., May 26, 2006), slip op. at 4; In re: Appeal of
Jenness & Berrie, Docket No. 134-7-04 Vtec (Vt. Envtl. Ct., Sept. 20, 2006), slip op. at 2.
10
Unlike in Town of Randolph v. Estate of White, 166 Vt. 280, 283 (1997), the
participants received adequate personal notice of the September hearing to advise them of
their rights and allow them to participate. Those who appeared in September received
adequate notice of the continuation date; those who declined to appear in September were
not entitled to any additional notice.
15
hearing and reconvene it at a later date, as long as it announces at adjournment the time
and place where the hearing will be reconvened”); 1 V.S.A. §312(c)(4).
Appellants ask the Court to interpret the statement that the hearing was being
continued “for further deliberation when more TDRB members are present,” to mean that
the DRB’s continuation of the hearing “to the next meeting” was actually intended to
continue it to some uncertain future date, because it could not be known in advance
whether more than four DRB members would be present at the next regularly-scheduled
meeting on October 24, 2006.
Such an interpretation goes beyond the bounds of the common sense which should
be used in evaluating the actions of lay municipal boards. See In re Maple Tree Place, 156
Vt. at 499, 502. The DRB’s statement that the September 26, 2006 hearing on this project
would be continued to “the next meeting” was made in the context of the Zoning
Administrator’s announcement that the next meeting would take place on October 24, 2006
and the fact that the Town’s website and its annual report state that DRB regular meetings
are held on the third Tuesday of every month at 7:30 at the Town Hall. It sufficed to
provide participants at the September 2006 hearing with the required notice that the
hearing would continue at the same place on Tuesday, October 24, 2006, at 7:30 P.M. The
DRB’s action complied with the requirement of McEwing and 1 V.S.A. §312(c)(4) that “the
time and place for the adjourned meeting [be] announced before the meeting adjourns.”
Further, Attorney Shahi wrote two letters on behalf of his clients requesting that two
board members be disqualified from participating in the continued hearing, one on
September 29, 2006 to the Town’s attorney, and one on October 17, 2006 to the Chair of the
DRB, showing that he was aware that the hearing would continue on that date. More
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importantly, Attorney Shahi, Appellant Hirschbuhl, Appellant Minotti, and one of11 the
Appellants Roy attended and spoke at12 the October 24, 2006 hearing. No confusion or
prejudice to Appellants resulted from the continuation of the September 26, 2006 hearing
to October 24, 2006.
With regard to the DRB’s procedure of scheduling both hearings for the same
meeting of the DRB, with the second hearing (on the merits of the preliminary application)
contingent on a positive vote to reopen the matter, the notice adequately warned any
potential participants of the procedure that would be followed. In particular, it adequately
warned that the hearing on the merits of the preliminary application would occur on the
same meeting date, contingent on (and immediately after) the vote on whether to
reconsider. Nothing in the enabling statute precludes such a practice. Appellants did in
fact participate on the merits of the preliminary application, and were therefore not
disadvantaged by the notice.
As the DRB only meets once a month, it is understandable that the DRB did not
want to delay its consideration of the merits of the preliminary application to a month (or
more) after it would have voted on whether to reopen. However, in general it may be
better practice to schedule such proceedings for separate meetings of the DRB, to avoid any
appearance or suggestion of an already-determined result on the question of whether to
reopen.
11
The minutes or statements of testimony contained in the November 3, 2006
written decision only refer to the witnesses by their last names.
12
As no party is seeking the dismissal of Appellant Stanglin (or the second
Appellant Roy) for failing to meet the requirement of 24 V.S.A. §4471(a) to participate (by
submitting evidence or a statement of concern, either orally or in writing), we conclude that
they had the opportunity to attend the meeting and to submit evidence or statements in
writing.
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Accordingly, summary judgment must be granted in favor of the Town and of
Applicants on Questions 2, 5, and 6 of the Statement of Questions.
Based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town’s
Motion to Dismiss Questions 4 and 8 of the Statement of Questions is DENIED; and that
summary judgment is GRANTED in favor of the Town and Applicants on Questions 1, 2,
5, and 6 of the Statement of Questions.
We have scheduled a telephone conference (see enclosed notice), at which the parties
should be prepared to discuss whether any facts are in dispute as to Questions 4, 8, and 9
of the Statement of Questions, or whether those questions may also be resolved as a matter
of law. The parties should also be prepared to discuss whether the trial on the merits of the
preliminary application, as stated at least in Question 10 of Appellants’ Statement of
Questions, should be coordinated with any appeal of the DRB’s action on the final
application now pending before the DRB. The parties shall inform this Court when the
final application is ruled on by the DRB. Further, unless and until Questions 8 and 9 are
ruled on adversely to Appellee-Applicants, their original appeal of the denial (Docket No.
99-5-06 Vtec) remains moot. Accordingly, their motion to reinstate the original appeal is
denied at this time, without prejudice to their filing such a motion again in the future (see
enclosed entry order in that docket number).
Done at Berlin, Vermont, this 10th day of May, 2007.
_________________________________________________
Merideth Wright
Environmental Judge
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