                                          STATE OF VERMONT
                                        ENVIRONMENTAL COURT

                                                            }
In re: Leiter Subdivision Permit                            }                      Docket No. 85-4-07 Vtec
(Appeal of Stimson)                                         }
                                                            }

                                        Decision on Pending Motions

         This appeal concerns an approval granted by the Town of Woodstock Development
Review Board for a two-lot subdivision of land. The abutting property owner, William P.
Stimson (“Appellant”), filed a timely appeal of that permit. Now pending before the Court are
Applicants’ motion for summary judgment or dismissal and Appellant’s motion for partial
summary judgment and request to stay these proceedings. Applicants are represented by Kaveh
S. Shahi, Esq.; Appellant represents himself.
                                               Background Facts
         We recite the following material facts, solely for the purpose of reviewing the pending
motions; our recitations of these facts are not final factual findings. See Blake v. Nationwide
Ins. Co., 2006 VT 48, ¶21 (citing Fritzeen v. Trudell Consulting Engineers, Inc., 170 Vt. 632,
633 (2000) (mem.)). In our analysis of the respective pending motions, we view the facts
material to that specific motion in a light most favorable to the non-moving party. See Lively v.
Northfield Savings Bank, 2007 VT 110, ¶5 (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44,
48 (1990)).
1.       Applicants, James and Suzanne Leiter, assert that they own 16.96+/- acres of land1 in the
Town of Woodstock, Vermont. The property is located in the Residential Five Acre Zoning
District (“R-5 District”). The property is located at 27035 Church Hill Road, and is identified as
parcel 08.01.10.
2.       Appellant, William Stimson, owns 4.16 acres of land adjacent to the Leiters' property,
also in the R-5 District. This property was originally two separate tracts of land that were
1
   As is noted in more detail below, several of the issues Appellant raises in his Amended Statement of Questions
pertain to a boundary dispute between the parties along their joint boundary line that runs in a general northwesterly
to southeasterly direction. Appellant submitted a marked-up copy of Applicants’ site map, solely to illustrate the
parties’ boundary dispute.
   It appears that the source of the parties’ dispute is the location of a single boundary line; whether it runs along a
partial stone wall or to the northeast of that partial stone wall. The width of this disputed area appears to be too
narrow to accurately measure, based upon the scale on the photocopied site map supplied by Appellant.


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acquired by Mr. Stimson’s parents in two separate transactions, the first in 1971 and the second
in 1972. Both Stimson deeds are recorded in the Woodstock Land Records. The land was
originally conveyed in two equal shares as tenancies in common to Stimson’s parents as trustees
of their respective trusts. In 2004, Stimson became the trustee of those trusts. In 2005, Stimson
acquired the property in his individual name. This deed is also recorded in the Woodstock Land
Records.    The property is located at 27033 Church Hill Road, and is identified as parcel
08.01.08.
3.     On February 15, 2007, the Leiters submitted an application to the Town of Woodstock
Development Review Board (“DRB”) to subdivide the 16.96-acre parcel into two lots. One
parcel is proposed to be 10.94 acres, and the other parcel to be 6.02 acres. The DRB, on the
same day, deemed the application complete and assigned the application number T-3825-07.
The application was signed by Suzanne Leiter alone.
5.     The DRB held a meeting on March 27, 2007, at which the Leiters’ application was
considered. Mr. Stimson was given notice of the meeting and attended to voice his concerns
over the subdivision plans. At that meeting, Stimson expressed his claim to a portion of the land
to be developed. Stimson did not have a land survey with him at that DRB meeting to support
his claim and has not submitted such a survey to this Court to date.
6.     On March 27, 2007, prior to the DRB meeting, Mr. Stimson filed an action in Windsor
Superior Court in which he sought to resolve his boundary dispute. The Leiters were named as
defendants in that action. The action was based on the dispute over a portion of the parties’ joint
boundary line. See William Stimson v. James Leiter and Suzanne Leiter, Docket No. 233-3-07
Wrcv (Windsor Sup. Ct.).
7.     On March 30, 2007, the DRB approved the subdivision plan with the condition that “[I]f
the survey was found not to be legal or accurate, then the applicant must submit a new
application.” Id. at 2.
8.     On April 20, 2007, Stimson filed a Notice of Appeal in this Court. The Leiters filed their
Motion for Summary Judgment and/or to Dismiss on July 25, 2007. Stimson filed a Cross-
Motion for Partial Summary Judgment and Stay on August 27, 2007. Each party has filed an
objection to their opponent’s pending motion. These motions are now ripe for the Court’s
consideration.




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                                                  Discussion
        Summary judgment is appropriate when “there is no genuine issue as to any material fact
and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). When both
parties move for summary judgment, each motion is to be analyzed giving the opposing party the
benefit of all reasonable doubts and inferences. Alpine Haven Property Owners Ass’n, Inc. v.
Deptula, 175 Vt. 559, 561, (2003). In determining whether a dispute over a material fact exists,
a court must accept as true all material allegations made by the opposing party, so long as they
are supported by affidavits or other evidentiary material. See White v. Quechee Lakes
Landowners’ Ass’n, 170 Vt. 25, 28 (1999) (citing Chapman v. Sparta, 167 Vt. 157, 159 (1997)).
        Applicants have moved for summary judgment on all issues raised in Appellant’s
Statement of Questions. Appellant has moved for summary judgment on Question 2 alone. The
following is our summary of the issues raised in Appellant Stimson’s Amended Statement of
Questions, all of which we are asked to address in the course of disposing the pending motions:
1.      Do Applicants have sufficient evidence of title or other authority to develop the entire
        subject property as proposed, particularly since a cloud has been asserted upon the title to
        a portion of their property and has been presented to the Superior Court for final
        adjudication?
2.      Since a quiet title action has been presented to the Windsor Superior Court, should this
        Court forestall its review of the pending subdivision application until after the Superior
        Court resolves the parties’ boundary dispute?2
3.      Where the map accompanying the application does not correctly set forth the boundaries
        of the Leiter parcel, do the application papers fail to satisfy the requirements of the
        Woodstock Zoning Regulations (“Regulations”)?
4.      Is the application form legally sufficient, since it only contains the signature of Suzanne
        Leiter?
5.      Where a portion of the Leiter parcel lies within the “steep slope” and “shallow soils”
        overlay district, should this Court deny the application due to concerns over suitable
        sewage disposal, access for emergency vehicles, drainage, and erosion control, since such
        concerns are not addressed in the application and supporting documents now before this
2
  We assume that Appellant’s recommendation includes a suggestion that if an appeal were taken from the Superior
Court’s determination of the boundary dispute, this Court should delay its consideration of the pending application
until after the resolution of the boundary dispute becomes final.


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          Court? In the alternative, Appellant asks whether one or more conditions addressing
          these concerns should be attached to any approval of the application.
6.        Can a subdivision application be found to be in conformance with the Regulations
          pertaining to steep slopes and shallow soils when it is not accompanied by a site plan
          containing topographical information and depicting the specific location of the steep
          slopes and shallow soils, particularly since the Regulations require an assessment of the
          proposed development in relation to the site’s natural features?

Questions 1, 2, and 3
          The main issue raised in these Questions concerns the parties’ boundary dispute and the
relevancy of the outcome of the Superior Court action to the Environmental Court proceedings.
Specifically, one course along the northwesterly/southeasterly boundary line separating
Appellant’s and Applicants’ property is in dispute. From the documents submitted by Appellant,
it appears that the boundary in dispute is in the northeast corner of Applicants’ property.
Appellant claims to own a narrow strip of land to the northeast of the remnants of a stone wall;3
Applicants’ site plan shows this narrow strip of land as belonging to Applicants. Both parties
acknowledge that an action to quiet title is pending in the Windsor Superior Court regarding the
strip of land in question, and that the parties are ready for trial on this issue.
          There is no suggestion here that this Court has concurrent jurisdiction with the Superior
Court to resolve the parties’ boundary disputes. However, ownership issues are sometimes
intertwined with issues within this Court’s jurisdiction. In municipal zoning application appeals,
this Court has repeatedly stated that an applicant has the initial burden to produce some evidence
of title or an interest in the property to be developed. Clermont Terrace Site Plan and Zoning
Permit Approvals (Appeal of Curtis), Docket Nos. 46-2-05 Vtec and 72-4-05 Vtec, slip op. at 6
(Vt. Envtl. Ct. Mar. 22, 2006); Appeal of Monty, Docket Nos. 7-1-04 Vtec and 47-3-04 Vtec (Vt.
Envtl. Ct. Jan. 24, 2006); Appeal of Van Nostrand, Docket Nos. 209-11-04 Vtec and 101-5-05
Vtec (Vt. Envtl. Ct. Jan. 13, 2006); Appeal of Cole, Docket Nos. 174-10-01 Vtec and 47-3-04
Vtec (Vt. Envtl. Ct. May 2, 2003); and Appeal of Bowman, Docket No. 70-5-96 Vtec (Vt. Envtl.
Ct. June. 21, 2005).
          There is a delicate balance between the evaluation of this initial threshold burden and the
Court’s jurisdictional limitations. Once some evidence has been put forth on an applicant’s
3
    See Footnote 1, above.


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interests and right to develop the property, “further claims to title, or claims attacking the same
must go to the appropriate Superior Court.” See Monty, Docket Nos. 7-1-04 Vtec and 47-3-04
Vtec slip op. at 6-7 (Vt. Envtl. Ct. Jan. 24, 2006) (quoting Van Nostrand, Docket Nos. 209-11-04
Vtec and 101-5-05 Vtec slip op. at 9 (Vt. Envtl. Ct. Jan. 13, 2006)). The threshold burden an
applicant must meet is relatively low; we know of no requirement in the applicable state statutes
or municipal regulations that an applicant submit affidavits to meet this burden, as Appellant
suggests.
        Mr. and Mrs. Leiter represent through their application that they own the lot that they are
seeking to subdivide. Their claim to ownership is also reflected in statements and affidavits they
have supplied to this Court. Reference has been made to a survey, not yet put into evidence by
Applicants, which presumably sets forth the boundaries of the Leiters’ parcel. Appellant has
submitted a copy of this survey, solely for the purpose of supporting his contention that a portion
of the property claimed by Applicants is in dispute. However, Appellant has not come forward
with evidence showing his ownership of a material portion of the Leiter parcel.4                             While
Appellant has convinced us that a boundary dispute exists between the parties, his assertions in
support of summary judgment fall short in two regards: first, he fails to provide evidence to
show that a material portion of Applicants’ land suffers under a cloud of title, thereby
challenging the threshold evidentiary foundation of the Leiters’ application. Second, even if we
were to assume for the sake of our review of the pending motions that the narrow strip of land
along the remnants of the stone wall was owned by Appellant and not Applicants, there has been
no evidence presented that such a narrow strip of land being removed from the pending
application would be a fatal deficiency.5
        Thus, particularly when we view the facts in a light most favorable to Applicants, we
cannot say on the record before us that Applicants will be unable at trial to meet their threshold
burden of producing the requisite evidence of ownership of the property they wish to subdivide.

4
   See Footnote 1, above. In this context, we would regard Appellant’s claim to title as “material” if there was
evidence presented that without the disputed portion of land, Applicants proposed subdivision could not conform
with the applicable Regulations. However, we caution that, since such evidence is not before us, we cannot
determine what would constitute a “material” land dispute and whether such a dispute would result in dismissal of
the pending application, particularly on summary judgment.
5
   The single course in dispute, running nearly parallel to the stone wall remnants, appears to be less than 383 feet
long. The length of the stone wall remnants, the width of the disputed parcel and its acreage cannot be ascertained
from the evidence provided. The Court looks forward to the presentation of evidence at trial on these points, as well
as evidence on whether a condition for requiring submission of a corrected survey, with or without an amended
application, would be appropriate under the Regulations.


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          While we have no intention of venturing beyond this Court’s subject matter jurisdictional
limits, we find it difficult to see how, based upon the evidence presented here, the parties’
boundary dispute could materially impact upon the pending subdivision application, whatever
the outcome of the Superior Court proceedings.
          Appellant offers a Massachusetts case, among others, in support of the proposition that a
subdivision should not be approved where it included land not owned by the applicant. See
Kuklinska v. Planning Bd. of Wakefield, 256 N.E.2d 601, 605 (Mass. 1970). This case does not
appear instructive in this matter. The opinion reports the determination of the Massachusetts
Supreme Judicial Court in three consolidated cases: two separate appeals of a municipal
subdivision approval by Anna Kuklinska and Mary Kuklinsky, plus a trespass and quiet title
action by Mary Kuklinsky. In rendering its decision, the Massachusetts Supreme Judicial Court
reversed the trial court’s determination that the disputed narrow strip of land belonged to the
developer; the Supreme Court determined that the record lacked sufficient evidence to support
the trial court’s conclusion and was erroneously based upon a Land Court determination in which
Mary Kuklinsky was not given notice or an opportunity to participate. Thus, while the case
caption suggests that Kuklinska v. Planning Bd. of Wakefield announced a determination in a
municipal land use appeal, the substance of the decision announces a determination in a quiet
title and trespass action, with a focus on a maxim that our Supreme Court often repeats: that
“[f]indings will be sustained on appeal unless, viewing the evidence in the light most favorable
to the prevailing party, there is no credible evidence to support the findings.” Okemo Mountain,
Inc. v. Lysobey, 2005 VT 55 ¶8, 178 Vt. 608, 610 (2005). If the findings are not clearly
erroneous, the Supreme Court will not disturb them ‘despite inconsistencies or substantial
evidence to the contrary,’ Pion v. Bean, 2003 VT 79, ¶ 15.
          We do not find the Kuklinska v. Planning Bd. of Wakefield decision instructive here
because it pertains to the parties’ boundary line dispute much more than the challenges to the
municipal subdivision approval. If we were faced here with an already final determination that
Mr. Stimson owned a material portion6 of the land the Leiters were seeking to subdivide, the
Kuklinska decision would be instructive. Since those are not the facts, nor the procedural
posture of this appeal, we decline to render summary judgment in Mr. Stimson’s favor.



6
    The disputed area in the Kuklinska case involved 7,200 square feet. Kuklinska, 256 N.E.2d at 602.


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         The legal conclusion reached here does not result in summary approval of the Leiters’
subdivision application. Rather, we conclude as a matter of law that the parties’ boundary
dispute, not yet resolved in Appellant’s favor in a manner to impact a material portion of the
lands Applicants seek to subdivide, does not require us to forestall our review of the appealed-
from subdivision application proceedings. In this regard, we grant partial summary judgment in
Applicants’ favor on this legal issue.
         Appellant has also moved to stay the proceedings in the Environmental Court while the
Superior Court matters are pending.                As discussed above, this Court is charged with the
responsibility of determining whether an application for development or subdivision meets the
applicable town zoning regulations. Bearing in mind the jurisdictional limitations discussed
above, this Court cannot adjudicate the rights of the parties in regard to the small strip of land in
question; we can only determine whether this subdivision application conforms to the
Woodstock Regulations. Because of the nature of the dispute between the parties, and for the
reasons discussed above, this Court sees no reason to stay these Environmental Court
proceedings while the quiet title action is pending. Therefore, Appellant’s motion to stay the
proceedings is DENIED.
         We note several more reasons for not staying these proceedings. First, having the two
cases considered concurrently will not amount to a violation of procedural due process.
Appellant claims that adjudicating the merits of the subdivision permit without resolving the
boundary dispute first will deny him the opportunity to be heard. The Court finds no merit in
this argument.       Appellant is free, and is encouraged, to have the Windsor Superior Court
adjudicate his rights regarding the property he claims to own. Having the Environmental Court
proceedings go forward concurrently in no way prejudices Appellant’s legal rights to pursue his
cause of action.
         Second, a decision in the Environmental Court before a resolution in the Superior Court
will not render the boundary line in question settled and unchangeable.7 A common condition in
many municipal subdivision permits, including those issued in Woodstock, requires an applicant
to file a mylar copy8 of the site plan in the town land records, setting forth the boundary lines of

7
  Were this true, any boundary disputes discovered after zoning approval is given could not be brought to the proper
Superior Court for adjudication. We are not aware of such a legal precedent and decline to adopt it here.
8
   Mylar is a plastic material that degrades less readily than the paper stock used in preparing original site plans. In
all other respects, the mylar copy is no different than the final site plan approved by the appropriate municipal panel.


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the property and describing the details of the subdivision. While the recording of a mylar copy
of the final approved site plan serves an important purpose of memorializing what was approved
by the municipal panel, we know of no precedent that it represents an irrefutable presumption of
any parties’ claim to title. We decline to adopt such a rule here.
         It is important to note that the Woodstock Regulations do not view property lines as
permanent and irrefutable; the Regulations allow for lot line adjustments when they become
known that lot lines as represented and recorded are incorrect. Section 605 of the Regulations
authorizes applicants seeking a lot line adjustment to obtain administrative approval. While this
regulatory provision is not necessarily at issue in this appeal, it is illustrative of the difficulty in
determining lot lines and drafting property descriptions.                  As the case at hand shows, one
surveyor can arrive at one conclusion about the location of a boundary line, but a deed or other
evidence may place that boundary line elsewhere. Thus, towns allow for lot line adjustments, so
that property owners may correct their site maps when future circumstances justify such a
change.
         We also note that there are alternate means by which a future lot line adjustment can be
addressed. One such example is contained in the condition in the permit granted by the DRB
here, which reads as follows: “If the subdivision condition requires that if the survey is found
not to be a legal and accurate survey, the applicant shall resubmit a new application.”9 Appellant
argues that if the Environmental Court were to issue a decision with a similar condition on the
merits of the pending application, thereby establishing the property boundaries through the filing
of a mylar copy of the site plan, that he would be collaterally estopped from raising his title
claim in subsequent appeals, and that the DRB would not be able to reopen the decision to grant
this permit in the first place. Appellant appears to argue that the “successive application rule”
would bar the DRB and the Court from considering a second application involving the same
property and proposal.         This argument seems misplaced, particularly in light of the stated
condition in the permit.
         The “successive application rule,” otherwise referred to as collateral estoppel in the
zoning context, states that “a zoning board or planning commission may not entertain a second
application concerning the same property after a previous application has been denied, unless a

9
  We cite to the condition contained in the DRB decision below for illustrative purposes only. Given that his is a de
novo appeal, any such condition and the propriety of the same will be the subject of evidence and legal arguments
presented at trial.


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substantial change of conditions ha[s] occurred.” See In re Armitage, 2006 VT 113, ¶ 4 (quoting
In re Carrier, 155 Vt. 152, 158 (1990)). Appellant’s “successive application rule” argument
seems self-defeating, since we cannot conceive of the circumstances under which a material
change in a boundary line would not be regarded as a “change in circumstances” under
Armitage. Stating this point in reverse has particular bearing on the pending issue before us: a
change in a common boundary line that would not be deemed material could not be a basis for
impacting upon a municipal land use proceeding. As noted above, we have yet been presented
with any evidence that the parties’ boundary dispute, even when viewed in a light most favorable
to Appellant, would have a material impact upon this Court’s consideration of whether
Applicants’ subdivision proposal conforms to the Woodstock Regulations.
         Third, the boundary line in dispute does not appear to have any bearing on the
subdivision itself.       The Regulations require that applications and supporting documentation
depict the location of the property, the boundary lines and location of the proposed projects. At
least one document submitted to the Court says that the Applicants did submit these documents
to the DRB. Appellant has noted that these plans have not yet been submitted for the Court’s
review. We expect that such evidence has already or will be disclosed in the discovery process
and will be presented into evidence at trial. However, as noted above, the small amount of land
in dispute does not appear to have any effect on the criteria listed for the consideration in
Regulations § 710.10 We see no reason to stay these proceedings and await the Superior Court’s
determination of an issue that is not relevant to the proceeding now before this Court. Therefore,
Applicants’ motion for summary judgment on Question 3 is hereby GRANTED.
         To summarize, based on the reasons stated above, Appellant’s motion to stay the
proceedings in the Environmental Court is hereby DENIED. Applicants’ motion for summary
judgment on Questions 1, 2, and 3 is hereby GRANTED.




10
   Section 710 of the Regulations, entitled “Conditional Use Approval,” requires that a use or structure requiring a
conditional use permit must conform to the general standards in the Regulations by not affecting the following:
(1) the capacity of existing or planned community facilities, (2) the character of the area affected, (3) traffic on roads
and highways in the vicinity, (4) the by-laws then in effect, (5) utilization of renewable energy sources, (6) the
proposed structure or use must meet specific standards with respect to the following: (7) minimum lot size, (8)
distance from adjacent or nearby uses, (9) minimum off-street parking and loading facilities, (10) landscaping and
fencing, (11) design and location of structures and service areas, (12) size, location, and design of signs, (13) access
and circulation.


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Question 4
       With his Question #4, Appellant asserts that when an applicant signs a zoning
application, the applicant is representing that its contents are accurate, is praying for the relief
requested, and is manifesting his consent to the possible impositions of conditions that may
encumber the property. Since only Suzanne Leiter signed the application, and there is no
testimony as to the reason for Mr. Leiters’ omitted signature or authorization of Mrs. Leiter to
sign for him as his agent, Appellant argues the application is invalid. Appellant further argues
that Mr. Leiter would not be bound by this Court’s rulings on the pending application because he
did not sign it; Appellant completes this argument by asserting that Mr. Leiter, if allowed to
proceed on the application not signed by him, would be reaping the benefits of the subdivision
while avoiding any of its consequences. Appellant also argues that since the Regulations do not
specifically require the signatures of all applicants, a ruling in favor of Applicants would in
effect be a ruling that no signature of any applicant is ever required. We disagree.
       Both James and Suzanne Leiter represent themselves to be the owners of the property to
be subdivided, both are listed as the applicants on the application, and both are jointly
represented by counsel in this proceeding. The materials presented to this Court reflect Mr.
Leiter’s participation in this process; Mr. Leiter was the party that presented the application and
materials to the DRB. Additionally, his signature appears on a later document, entitled Overlay
Zoning Conditional Use Support Statement, dated March 6, 2007, that comprises a portion of the
application.   It is disingenuous to argue that Mr. Leiter will not be fully bound by his
representations in support of the pending application and yet stands to reap only the benefits and
not the consequences of the application and permit later issued.
       We find no provision in the Woodstock Regulations that specifically require all
applicants to sign the application. Holding that one signature is sufficient is not the equivalent of
holding that no applicant ever need to sign. The former Environmental Board Rules require a
permit to be signed by the applicant and all co-applicants, or by authorized agents of the
aforementioned, as the case may be. See EBR 10(A). But the Woodstock Regulations state no
such rule. For the purposes of this application, the single signature is sufficient, and the DRB
deemed the application complete, being signed as such. Mrs. Leiter provided a signature that
would attest to the accuracy and veracity of the statements presented in the application and
accompanying materials.


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       While Appellant is entitled to all reasonable doubts and inferences in opposing this
motion for summary judgment, it is unreasonable to accept the inferences proposed by
Appellant. Appellant is asking this Court to infer that Mr. Leiter is attempting to evade his
responsibilities as a result of not signing the application.    It is unreasonable to conduct a
burdensome inquiry into the Leiters’ intention and conduct during the past application process.
But, it is also unreasonable to accept the inferences set forth by Appellant for which there is no
support, and to find that because Mr. Leiter did not sign the application, the application is
incomplete and therefore invalid. Based on the foregoing analysis, the Applicants’ motion to
dismiss Question 4 is hereby GRANTED.

Questions 5 and 6
       These Questions address the location of the Leiters’ property within the overlay districts,
and the information provided in the application regarding suitable sewage disposal, access for
emergency vehicles, drainage, and erosion control. Appellant argues that because site plans or
other documents demonstrating the application’s conformance to the Regulations regarding these
issues have not yet been presented to the Court, the application is therefore insufficient. Under
the applicable standard of review for a motion for summary judgment, the information supplied
to the Court is sufficient to show that there is a genuine issue of material fact that remains and
needs to be addressed at a merits hearing.       Accordingly, Appellees’ motion for summary
judgment on Questions 5 and 6 is DENIED.
       In denying Appellees’ motion, this Court is allowing the application to proceed to a
merits hearing. See Grand View Site Plan Application (Appeal of Morse), Docket No. 161-8-05
Vtec, slip op. at 5-6 (Vt. Envtl. Ct., June 15, 2006). This Court will conduct a de novo review of
the issues within the application preserved for our review on appeal. Clermont, Docket Nos. 46-
2-05 Vtec and 72-4-05 Vtec slip op. at 1 n.1 (Vt. Envtl. Ct. Mar. 22, 2006). Under de novo
review, the Court views the application and supporting materials as if no proceedings have taken
place before the DRB. See In re Green Peak Estates, 154 Vt. 363, 372 (1990) (citing In re Poole,
136 Vt. 242, 245 (1978)). In this light, the issues presented in these two questions are not well
suited to be dealt with in pretrial motions, but rather are more properly handled in a trial on the
merits, wherein a thorough examination of the evidence may be conducted, the evidence may be
put in context by a site visit and a determination may be made as to the conformity of the




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subdivision plans to the Regulations. All parties should be prepared at trial to present all
evidence that they wish the Court to consider on the issues presented in Questions 5 and 6.

                                          Conclusion
       Based on the foregoing, Applicants’ motion for summary judgment on Questions 1, 2,
and 3 are hereby GRANTED and Applicants’ motion to dismiss Question 4 is GRANTED.
Appellant’s motion for summary judgment on Question 2 alone and motion to stay the
proceedings in this Court are hereby DENIED. Applicants’ motion for summary judgment on
Questions 5 and 6 are hereby DENIED.
       The parties should prepare for a trial on the merits of the application, on the issues
presented in Questions 5 and 6.


       Done at Berlin, Vermont, this 2nd day of January, 2008.




                                             __________________________________________
                                                 Thomas S. Durkin, Environmental Judge




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