                                     State of Vermont
                          Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Willowell Foundation Conditional Use Permit                     Docket No. 142-10-12 Vtec

Title: Motion for Summary Judgment (Filing No. 1)
Filed: June 18, 2013
Filed By: Appellant Samuel H. Burr
Response filed 7/5/13 by Cross-Appellant Willowell Foundation, Inc.


 ___ Granted                  X Denied               ___ Other

        Samuel H. Burr (Appellant) appeals a decision of the Town of Monkton Development
Review Board (DRB) approving, with conditions, an application by the Willowell Foundation,
Inc. (Willowell) to construct a community center and related improvements on Willowell’s 229.8
acre parcel on Briston Road in Monkton, Vermont. Willowell has filed a cross-appeal in this
matter. Appellant’s pending motion for summary judgment concerns the failure of all parties to
produce the May 2000 decision by the Town of Monkton Planning Commission approving the
subdivision creating the current Willowell lot. Appellant contends that unless Willowell
produces that decision, this Court should deny Willowell’s conditional use application. Based
on the reasons described below, we deny Appellant’s motion for summary judgment.
                                      Factual Background
       For the sole purpose of putting the pending motion into context, the Court recites the
following facts, which it understands to be undisputed unless otherwise noted:
   1.    Willowell has applied for a conditional use permit for a facility to host its offices, a
         preschool with two classrooms, an art gallery, a multi-purpose room, a library that
         incorporates an existing silo, a teaching kitchen, and a caretaker’s apartment on a 229.8
         acre parcel of land identified as Lot #6 of the Perry Flint & Hartshell Co. Subdivision
         in Monkton, Vermont (the Property).
   2.    Hartshell Co., Inc. and Perry R. Flint conveyed the Property to Willowell by warranty
         deed dated August 3, 2005.
   3.    Hartshell Co., Inc. and Perry R. Flint created the subdivision containing the Property
         prior to conveying the Property to Willowell. The Monkton Planning Commission
         approved the subdivision and the Chair of the Planning Commission signed the
         approved plat depicting the subdivision.
   4.    Above the Chair’s signature on the plat, the plat states: “Approved by resolution of the
         Town of Monkton Planning Commission, Vermont, on the 28th day of May, 2000,
In re Willowell Foundation, Inc. Cond. Use, No. 142-10-12 Vtec (EO on Mot. for Summ. J.) (8-19-13)   Pg. 2 of 3.


          subject to all requirements and conditions of said resolution.”1 Cross-Appellant’s Ex.
          A.
    5.    No party has filed a written resolution or decision approving the subdivision with this
          Court, and both Appellant and Willowell assert that no such resolution or decision can
          be found in the Town’s land records, lister’s records, or planning and zoning records.
                                                 Discussion
        Currently before the Court is Appellant’s motion for summary judgment. We will grant
summary judgment to a moving party (here, Appellant) upon a showing that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). The parties have not raised any disputes of material
fact regarding the pending motion. Instead, this matter hinges upon a dispute of law, and it is
therefore appropriate for a motion for summary judgment.
       Appellant asserts that because Willowell bears the burden of demonstrating that its
proposed use meets conditional use standards, Willowell also bears the burden of proving that
it complies with any restrictions placed on the use of the Property by the Planning Commission
during the original subdivision approval. No party in this appeal has produced a written
decision of the Planning Commission approving the subdivision of the Hartshell Co., Inc. and
Perry R. Flint property or placing restrictions on the use of the parcels within the subdivision,
however. If such a written decision ever existed, Appellant and Willowell suggest the Town no
longer has a record of it. Accordingly, Appellant claims that Willowell cannot meet its burden
of proving that it complies with the unknown terms—if any—of the subdivision approval.
Appellant suggests that Willowell must therefore either leave its property undeveloped or
apply to the DRB, which has replaced the Town Planning Commission, for “clarification” of the
unknown subdivision restrictions.
         We find Appellant’s arguments unpersuasive. In reviewing Willowell’s conditional use
application, this Court will conduct its review according to the Town’s conditional use
standards. To the extent raised by parties in their Statements of Questions, we will also review
any other restrictions placed on the use of the Property that are brought to the attention of the
Court. We will not, however, require Willowell to prove that it complies with unknown
restrictions allegedly contained in a document that no party can produce, nor will we suspend
Willowell’s development rights until such a document is found.2 Accordingly, we DENY
Appellant’s motion for summary judgment.




1 There appears to be some confusion over when the Chair of the Planning Commission signed the plat.
The copy of the plat provided to this Court as Cross-Appellant’s Exhibit A states that the plat was
approved by resolution of the Town Planning Commission on May 28, 2000. However, the signature of
the Chair on the plat is dated May 28, 2002. The plat also notes that it was revised by surveyor Ronald
LaRose in 2002. Whether the plat was approved and signed in 2000 or 2002 does not affect our conclusion
in this order, however.
2 We also note that this Court has no authority to disturb the finality of a subdivision decision of the
Town Planning Commission issued over ten years ago by requiring Willowell to reapply for subdivision
approval with the DRB.
In re Willowell Foundation, Inc. Cond. Use, No. 142-10-12 Vtec (EO on Mot. for Summ. J.) (8-19-13)       Pg. 3 of 3.


        Appellant also seeks a new discovery schedule and additional discovery time to find the
missing decision. We DECLINE to grant more time for discovery, as we understand that the
parties have already expended significant efforts attempting to find the missing decision.



_________________________________________             August 19, 2013
       Thomas G. Walsh, Judge                            Date
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Date copies sent to: ____________                                             Clerk's Initials _______
Copies sent to:
  James W. Runcie, Attorney for Appellant Samuel H. Burr
  Rendol F. Barlow, Attorney for Cross-Appellant Willowell Foundation, Inc.
  Liam L. Murphy and Damien J. Leonard, Attorneys for Town of Monkton
  Philip C. Woodward, Attorney for Interested Persons Andrew Higbee Jr. and Sheryl Knauth
