Appeal of Madden ( 2005 )

STATE OF VERMONT
ENVIRONMENTAL COURT
}
Appeal of Madden } Docket Nos:
} 105-6-04 Vtec (from 4/27/04 ZBA Decision)
} 119-7-04 Vtec (from 6/3/04 Planning Comm. Decision)
}
Decision and Order
This appeal came up for a merits hearing on April 13, 2005. The Appellant, John A.G.
Madden, appeared pro se. The Town of New Haven (“Town”) participated in these proceedings
through its attorney, James H. Ouimette. Appellee-Applicant State of Vermont, Department of
Buildings & General Services (“State”), was represented by Attorneys William H. Rice and Jeff W.
Lively. Appellee-Applicants Peter Norris, Sr. & Peter Norris, Jr. (“Norrises”) were represented by
Attorney Donald R. Powers. At times in this Decision, the State and the Norrises are collectively
referred to as Appellee-Applicants.
Both pending appeals relate to the development of a parcel of land located on the
easterly side of U.S. Route 7 in New Haven, Vermont. Docket No. 105-0-04 Vtec concerns an
amended subdivision approval that the New Haven Zoning Board of Adjustment (“ZBA”) granted
the Appellee-Applicants. Docket No. 119-7-04 Vtec concerns the State’s site plan, approved by
the New Haven Planning Commission (“Planning Commission”), to construct and maintain a new
Vermont State Police barracks and related facilities on Lots 2 and 3 of the Norrises’ subdivision,
with a related communications tower on Lot 1.
The proposed development has also been the subject of other judicial proceedings.[1]
The first—Docket No. 186-11-01 Vtec—concerned the first appeal by Mr. Madden of a
subdivision approval issued to the Norrises by the ZBA for a four (4) lot subdivision. That appeal
was the subject of Findings of Fact and an Order filed November 22, 2002. Those Findings and
the Order were appealed by Mr. Madden to the Vermont Supreme Court, which upheld this
Court’s Decision to grant Appellee-Applicants subdivision approval. See In re Madden, No. 03-
121 (Vt. July 18, 2003) (unpublished mem.).
Mr. Madden also appealed the first site plan approval granted to the State by the
Planning Commission (see Docket No. 213-11-01 Vtec). This Court dismissed that appeal as
moot in its Decision of March 14, 2002, after the State gave notice that it did not intend to go
forward with this approved site plan.
Mr. Madden also appealed a subsequent site plan approval issued to the State in Docket
No. 36-3-04 Vtec. That appeal was also dismissed as moot once Mr. Madden appealed the site
plan approval at issue in this Decision—Docket No. 119-7-04 Vtec.
Based upon the evidence presented at the hearing,[2] the Court makes the following
Findings of Fact and Conclusions of Law.
Findings of Fact
1. The Appellee-Applicants’ most recent subdivision approval from the ZBA actually is an
amendment to the subdivision plan approved by this Court in Docket No. 186-11-01 Vtec
and affirmed by the Vermont Supreme Court in In re Madden, No. 03-121 (Vt. July 18,
2003) (unpublished mem.). The changes to the subdivision plan most recently approved
by the ZBA consisted of the following: (a) realignment of the curb cut on to U.S. Route 7,
so that it was directly across Route 7 from another curb cut to the west for Dog Team
Road; (b) realignment of the interior driveway to serve Lots 2 and 3 (i.e. the lots
purchased by the State); and (c) minor changes to the location of the easement
encumbering Lot 1 for the siting of and access to a communications tower.[3]
2. The ZBA considered the Applicants’ amended subdivision plan at its April 27, 2004
meeting. That meeting was warned and noticed, as evidenced by Appellee-Applicants’
Exhibits 15 and 16.
3. Mr. Madden has posed identical Questions Presented in both pending appeals,
challenging the sufficiency of notice and questioning the general legality of the respective
subdivision and site plan approvals.
4. The Planning Commission considered the State’s most recent site plan at its June 3,
2004 meeting. That meeting was warned and noticed, as evidenced by Appellee-
Applicants’ Exhibits 19 and 20.
5. The Town has not enacted provisions for the location of state owned property, as
contemplated by both 24 V.S.A. §4409[4] and §518 of the New Haven Zoning Ordinance
(which language is identical). Thus, the only aspects of the proposed site plan under
review in these proceedings are “size, height, . . . , setbacks, . . . , off-street parking, . . . ,
[and] landscaping or screening requirements . . . .”[5]
6. Appellee-Applicants have acquired the necessary state permits for both the amended
subdivision (including curb cuts onto Route 7) and for the State’s proposed land use (i.e.
an Act 250 permit). In connection with the latter state permit, the Appellee-Applicants
were required to locate the communications tower that is necessary for the State Police
facility as far away from Route 7 as possible to minimize its visual impact from the traffic
corridor.
7. The proposed communications tower is now located on Lot 1, which Peter Norris will
retain, subject to an easement for siting and access to the tower. Such access runs
along the revised interior drive shown on Appellee-Applicants’ revised site plan. See Ex.
2-B.
8. The changes to the Route 7 curb cut were made to minimize the different intersections on
Route 7 in this neighborhood. The change allows for a common intersection to be used
both by visitors to the proposed site and motorists using Dog Team Road.
9. The credible evidence suggests that the proposed siting of the State Police barracks and
related facilities will not materially degrade the safety of this section of Route 7. In fact,
the uncontroverted testimony was that safety on Route 7 may increase due to the
proximity of the proposed State Police facilities.
10. The Town Zoning Ordinance identifies the proposed project area as mostly in the
highway commercial (HC) district, which is generally identified in this neighborhood as
being 1,000 feet from the center line of Route 7. Lots 2 and 3 are completely within the
HC district. While most of Lot 1 is similarly zoned, a thin sliver on the rear (i.e. easterly)
boundary is in one of the rural agricultural (RA) districts.
11. The neighboring properties include commercial and retail establishments. While not
abutting the subject property, there are some residences in the surrounding
neighborhood, including Appellant’s primary residence.
12. The size, height, and setbacks of the proposed structures are in conformance with the
applicable town regulations.
13. The proposed off-street parking and landscaping also conform to town regulations and do
not create an undue adverse impact on the neighborhood.
Conclusions of Law
As was previously held by this Court, we must apply the Town Regulations to the facts
presented to us. In Re Appeal of Madden, Docket No. 186-11-01 Vtec (Vt. Envtl. Ct. Jan. 18,
2002), aff’d In re Madden, No. 03-121 (Vt. July 18, 2003) (unpublished mem.) (citing Chioffi v.
Winooksi Zoning Board, 151 Vt. 9,13 (1989)). In doing so, we conclude that the amendments to
Appellee-Applicants’ subdivision plan contain only minor revisions that are in conformance with
the Town subdivision regulations.
Further, in reviewing the State’s site plan, we conclude that it complies with all applicable
provisions of the Town Ordinance and 24 V.S.A. §4409 (2003). The proposed structures do not
exceed the applicable height, size, or setback restrictions. The site has been designed with
sufficient landscaping, building color tones, and off-street parking so as to minimize the impact to
the surrounding neighborhood. The proposed structures will blend in well with the existing
commercial and retail facilities in the surrounding neighborhood. The presence of a State Police
facility in the neighborhood has a greater likelihood to enhance, rather than diminish, the safety
for nearby residences.
We therefore APPROVE Appellee-Applicants’ site plan in Docket No. 119-7-04 Vtec and
GRANT the Appellee-Applicants’ application for an amended subdivision permit in Docket No.
105-6-04 Vtec.[6]
________________________________ April ____, 2005
Thomas S. Durkin Date
Environmental Judge
Date _________ copies sent to:
Clerk’s Initials: __________
John A.G. Madden
Attorney James H. Ouimette
Attorney Donald R. Powers
Attorney William H. Rice
Attorney Jeff W. Lively
[1] All previous and pending Environmental Court proceedings are titled “Appeal of Madden”.
Each new appeal was given a new Docket number.
[2] Appellant chose to not present any evidence during his case in chief. Appellant did cross
examine all witnesses presented by the Appellee-Appellants and, just prior to the commencement
of the merits hearing, filed a summary entitled “A Brief”. While not admitted as evidence, we
considered this summary when determining these Findings.
[3] Appellant also suggested through his cross-examination that some changes were made to lot
dimensions and lot size, but the State’s evidence clarified that the rear boundary lines remained
the same and that there were no material changes in the lot sizes.
[4] The parties agreed and we so find that 24 V.S.A. §4409 (2003) applies to this site plan review
case and not its successor section: 24 V.S.A. §4413 (2004).
[5] Other aspects of a site plan may be regulated under both the ordinance and statute, but are
not applicable in this case. See In re Appeal of Department of Buildings and General Services,
176 Vt. 4; 2003 VT 92 (2003).
[6] Appellee-Applicants also received a zoning permit from the Town Zoning Administrator. See
Ex. 10. Since Appellant chose not to appeal this previously issued zoning permit, its validity is
not a question preserved for challenge in this Court.