M/.\R 2 1'2012
State of Vermont -
VERMONT
Superior Court- Environmental Division
SUPER|OR COURT
ENVIRONMENTAL DIVlSlCN ``
ENTRY REGARDING MOTI()N
In re NVe Conditional Use Permit Docket No 75-4-09 Vtec
(Appeal from Town of Ferrisburgh Zoning Board of Appeals decision)
Title: Motion for Summary ]udgment (Filing No., 5)
Filed: September 21, 2011
Filed By: Appellant Steve Lowther
Response: None
_ Granted __)_(_ Denied __Other
_ Steve Lowther (”Neighbor”) has filed a motion seeking summary judgment on
Question 1 of hi.s Statement of Questions: ”Whether there was proper public notice of the
subject conditional use application?” Neighbor alleges that notice for the Town of Ferrisburgh
Zonin_g Board of A-ppeals' (”the ZBA”) April 1, 2009 hearing on Edythe Nye’ s (”Applicant”)
zoning permit application W_as materially defective and that remand to the ZBA for a properly
noticed hearing is required. Neither Appli_cant nor any other party appearing in this matter has
filed a response to Neighbor’ s motion.
We will only grant a party’ s request for summary judgment evenif it is unopposed, if
the party shoWs, with ”pleadings, depositions, answers ``to interrogatories,' and admissions on
file, together with the affidavits, if any, referred to in the statements [of material facts] required
by Rule 56(c)(2 ), ” that ”there is no genuine issue as to any material fact" and that the party is
”entitled to judgment as a matter of law. " V. R. C. P. 56(c)(3) (2011) (amended ]an 23, 2011)1; see
'V.R.E.C.P. 3. We apply this standard When considering Neighbor’ s unopposed motion and the
factual allegations included in his statement of material facts
Procedural History
The following procedural history and facts are undisputed On October 29, 2008,
'Applicant applied for a zoning permit for a ”Home occupation or Accessory use 'B’”
(Application '#08-099) to use part of a garage for a Woodworl2004 VT 53, il 17,
177 Vt. 38 (stating that a municipal panel can ”continue
[a] 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.”); see also Woodstock Comm. Trust, lnc., and -
Housing Vt. Planned Unit Dev., No. 263~11-06, slip op. at 15-16 (Vt. Envtl. Ct. May 10, 2007)
(Wright, ].) (concluding that adjoining landowners Were not entitled to receive separate notice
for a continued hearing when the time and place for the subsequent day of hearing was
announced during a prior day of hearing).
'Although Neighbor argues that the published notice for the April 1, 2009 hearing fails to
meet the requirements of 24 V.S.A. § 4464(a)(1), we conclude that separate notice Was not
necessary for that day of the hearing rl``he April 1, 2009 ”hearing”t was not a separate hearing
but was instead effectively a continuation of the hearing that began on December 3, 2008. We
reach this conclusion for the following two reasons
First, While they have different numbers, Applications #08-099 ,and#09-011 are
essentially the same application The two applications Were submitted by the same applicant
and they seek the same permit for the same use on the same property. The only difference is
that Application #09-011 includes additional minor details, such as noting the zoning district,
the parcel size, and the deed reference, that are not included in Application #08-099. The ZBA
also appears to have considered the applications to be the same. The ZBA’s announcement on
' April 1, 2009 that it was considering Application #09-011 Was a formality. T.he ZBA took into
account information gathered in connection with Application #08-099-in particular a site
inspection and decibel testing for noise concerns-when issuing its decision on Application
#09~011. (See Appellant’s Mot. for Summ. l., Ex. 9, filed September 21, 2011.)
Second, Neighbor, and anyone else in attendance at the l\/larch 4, 2009 day of hearing for
, Application #08-0899, Was given notice that the hearing would be continued on April 1, 2009 at '
7 :05 pm. Although the meeting minutes do not reflect that the ZBA Chair explicitly indicated
that the continued hearing Would take place in the same location, We understand that the
location Was implied Neighbor does not assert that this notice for recessing and continuing the
hearing Was inadequate; nor does he argue that the Written notice he received for the initial day
of hearing, December 3, 2008, was insufficient Thus, under the guidance of 1 V.S.A. § 312(c)'(4),
we regard these notices, in combination, to have provided adequate notice for the April 1, 2009
day of hearing.4
4 Although We conclude that the notice for the April 1, 2009 day of hearing was adequate, we caution the
ZBA that defects in notice are to be taken seriously and that those defects that make a posting or notice 7
”materially misleading in content" require remand See 24 V.S.A. § 4464(a)(5). Here, if the only notice for
the April 1, 2009 day of hearing Was the notice published in the Addison Countv lndependent, we would
not conclude that its typographical error (listing the date for the hearing as April 11, 2009 instead of April
1, 2009) is such a defect April 11, 2009 was a Saturday, and a reasonable``person Would inquire With the .
Town as to Whether the date was correct or was a typographical error. However, we encourage the ZBA
to take greater care When announcing public hearing dates. '
Nze Conditz'onal Use Permz``t No. 75-4-09 Vtec (EO on Moz‘ion for Summa)y Jua"gment) Pg 4 of 4
' We also note that the meeting minutes for the April 1, 2009 day of hearing reflect that
Neighbor actually attended the meeting and provided public comments regarding Applicant's
proposed use. (See Appellant’s Mot. for Summ. ]., EX. 9, filed September 21, 2011.) The purpose
of the notice provisions is to inform interested persons of a proposed action and to give them a
reasonable opportunity to express their support or opposition See Town of Mendon V. Ezzo,
129 Vt. 351, 357-58 (1971) (interpreting a previous version of 24 V.S.A. § 4464(a), formerly
codified as 24 V.S.A. § 4447). Despite Neighbor’s argument that the notice for the meeting on
April 1, 2009 Was inadequate, he was informed about Applicant’s proposal and he took
advantage of the opportunity to provide comments on that proposal during the meeting
Conclusion '
Because Neighbor’s factual allegations, and his supporting affidavit and exhibits ,' show
that he is not entitled to judgment as a matter of law on Question 1, we must DENY Neighbor’s
motion. `` ‘ ~' ~
Pursuant to the September 27, 2011 Entry Order We issued in this matter, the matter was
placed on inactive status pending resolution of a related Superior Court matter in the Addison
Unit of the Civil Division, Docl