Tasha Tudor & Family, Inc. CU Permit

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Tasha Tudor & Family, Inc. } Docket No. 112-6-09 Vtec
Conditional Use Permit }
(Appeal of Thomas Tudor) }
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Decision and Order on Motion to Stay
This is an on-the-record appeal1 filed on June 16, 2009 from a decision of the
Development Review Board (DRB) of the Town of Marlboro, granting conditional use
approval to Tasha Tudor and Family, Inc., to operate a Museum/Gallery and Retreat
Facility at the 9.8-acre parcel at 299 Raven Road. Appellant Thomas Tudor is an
attorney (not admitted in Vermont) who is representing himself in this matter.
Appellee-Applicant Tasha Tudor and Family, Inc. is represented by Amy Tudor,2 who
is not an attorney. The Town of Marlboro is represented by Paul S. Gillies, Esq.
Appellant owns an interest in adjoining property at 407 Raven Road. Together
with his Notice of Appeal, Appellant filed a document entitled “Petition for Relief in
Law and Equity” and moved for a stay of the DRB’s approval, pending resolution of
this appeal. Appellee-Applicant filed a response to the motion; the Town has not taken
a position on the motion.
Condition 2 of the DRB decision regulates bus tours. It allows up to fifteen bus
1
Please note that this appeal is not de novo, contrary to several references to it as such
in Appellant’s petition. See 10 V.S.A. § 8504(h)(1); compare V.R.E.C.P. 5(g), with
V.R.E.C.P. 5(h)(1).
2
Please note footnote 1 of this Court’s entry order issued July 29, 2009 (which may
have crossed in the mail with Ms. Tudor’s filing of her opposition to the motion to stay),
regarding whether Ms. Tudor has entered her appearance on her own behalf or on
behalf of the corporation.
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tours per year, but no more than two bus tours on any day, during a season between
May 1 and October 31 of each year. It prohibits bus parking on town roads, and
prohibits idling of buses. Condition 3 of the DRB decision regulates events involving
participants arriving by automobile. It allows up to eight day-long events per year, and
also restricts such events to a season between May 1 and October 31 of each year, and to
no more than two such events per day. It restricts such events to involving no more
than ten automobiles per event. Condition 4 of the DRB decision requires portable
toilet facilities to be provided, adequate for the numbers of people attending the tours
or events.
In the response to the motion for stay filed on August 3, 2009 by Amy Tudor on
behalf of the corporation, she has stated that no further bus tours are scheduled for
calendar year 2009, that two ten-car tours are scheduled for September 12, 2009, and
that portable toilets will be rented for the day in compliance with the DRB approval.
The response did not state whether the September 12 events are the only remaining
such events planned for the 2009 season. Because the annual season ends October 31,
2009, the motion for stay is only applicable to the September 12 events and to any
subsequent events involving participants arriving by automobile.
To rule on a motion for stay pursuant to V.R.E.C.P. 5(e), the Court must
consider the following factors, which the Supreme Court has
characterized as helpful generalizations in the context of analyzing Public
Service Board orders: (1) the likelihood of success of the appealing party
on the merits, (2) whether the party seeking the stay will suffer
irreparable injury if the stay is not granted, (3) whether the issuance of a
stay will substantially harm other parties, and (4) the location of the best
interests of the public. In re Tariff Filing of New England Tel. & Tel. Co.,
145 Vt. 309, 311 (1984) (citing In re Allied Power & Light Co., 132 Vt. 554,
556 (1974)); see In re: Entergy Nuclear/Vermont Yankee Thermal
Discharge Permit Amendment, Docket No. 89-4-06 Vtec, slip op. at 3 (Vt.
Envtl. Ct., June 6, 2007) [(Wright, J.)].
In re Northern Cmty. Inv. Corp. (Appeals of Curtis), Nos. 123-6-07 Vtec, 128-6-07 Vtec,
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152-7-07 Vtec, slip op. at 2 (Vt. Envtl. Ct. Aug. 30, 2007) (Durkin, J.).
Appellant has not shown his likelihood of success on the merits. Success on the
merits of an on-the-record appeal requires the Court to determine that the DRB’s
decision was not supported by substantial evidence in the record as a whole, or was
otherwise defective. Until the Court receives a copy of the Marlboro Zoning
Regulations and either listens to the audio tapes of the hearings or reads the transcripts
not yet provided, the Court cannot make a determination as to the likelihood of success
on the merits.
Appellant has not shown what irreparable injury could result to his interest in
the neighboring property as a result of the September 12, 2009 events or any subsequent
events before the end of October of 2009 involving participants arriving by automobile.
Appellee-Applicant has not shown that it would suffer substantial harm due to
the cancellation of the two September 12, 2009 events. Presumably it would suffer at
least some financial harm due to the loss of fees for the events, as reflected on Appellee-
Applicant’s website referenced in Appellant’s petition. Nevertheless, as Appellee-
Applicant made no claim of substantial harm to it if the stay were granted, the Court
has not given any weight to this factor.
Appellant has not shown that the best interests of the public requires a stay of
the DRB’s approval for the remainder of the 2009 season.
Based upon factors 1, 2, and 4, therefore, Appellant’s motion for stay must be
denied.
However, to minimize the possibility that unscheduled and uninvited visitors
might arrive at the property by bus or car during the pendency of this appeal, Appellee-
Applicant shall clearly provide information on any printed publicity materials, and on
any electronic website or email communications, to the effect that visits to the property
are by prior arrangement only.
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The schedule established by the July 29, 2009 scheduling order requires
mediation to be concluded by September 18, 2009. If it is not successful in resolving this
dispute, the parties’ initial briefs are due to be submitted by September 30, 2009, with
any responses to be filed by October 14, 2009, so that the Court will have the matter
fully submitted to it by mid-October. Based on this schedule, the parties can expect that
a decision on the merits of the appeal will be issued sufficiently in advance of the May 1
beginning of the 2010 season. If the schedule is extended to affect the 2010 operating
season, Appellant may, of course, renew his motion for stay.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellant’s motion for a stay of the DRB’s approval is DENIED.
Done at Berlin, Vermont, this 4th day of August, 2009.
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Merideth Wright
Environmental Judge
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