                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT



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In re: Stoddard Site Plan                 }              Docket No. 255-11-06 Vtec
        (Appeal of Adams)                 }
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             Decision and Order on Cross-Motions for Summary Judgment

       Appellant John T. Adams appealed from a 2006 decision of the Planning

Commission of the Town of Fair Haven approving Appellee-Applicant (Applicant) Bruce

Stoddard’s application for site plan approval for 28 Prospect Street. Appellant appeared

and represents himself; Appellee-Applicant is represented by Phyllis R. McCoy-Jacien, Esq.

The Town did not enter an appearance in this matter.

       In an appeal of an earlier proposal for the same property involving the same parties,

Docket No. 254-12-05 Vtec, this Court had denied site plan approval only as to the wing

apartment of Applicant’s proposed multi-family dwelling, ruling that it did not contain

sufficient common facilities to qualify as a “housekeeping unit” under §140 of the Zoning

Regulations. The denial was made “specifically without prejudice to Applicant’s submittal

of any subsequent application for site plan approval, even one that proposes the same

division of units within the former nursing home, but so that the wing apartment contains

enough common facilities to qualify as a housekeeping unit.”

       The present appeal involves an application which differs only as to some aspects of

the interior of the so-called wing apartment. Accordingly, the Court incorporates the

description of the other aspects of the project from its June 21, 2006 decision in Docket No.

254-12-05 Vtec. Appellee-Applicant now proposes to convert Room 5 to be a common

bathroom for the use of the residents of the wing apartment, and to convert Rooms 2 and


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6 (by removing their sinks and closets and closing off access to their adjoining bathrooms)

to allow their use as common living areas for the use of residents of the wing apartment

(together with the common lounge already proposed). The wing apartment is now

proposed to have five bedrooms: those in Rooms 1, 3 and 7 with private bathrooms, and

those in rooms 8 and 9 sharing a bathroom.

       Appellee-Applicant was entitled by the terms of the remand order in Docket No.

254-12-05 Vtec to revise his application and submit a revised application to the Planning

Commission for site plan approval, which he has done in this application. The revised

application provides a common bathroom for the use of the wing apartment residents, five

bedrooms, and three common rooms for use as living rooms, sitting rooms, or lounges by

the residents of that apartment, meeting the terms of the definition of dwelling unit for

which the former application was remanded. The Planning Commission was entitled to

consider this application on its merits, and, accordingly, Appellant’s motion for summary

judgment is DENIED as to Question 1 of the Statement of Questions.

       In Question 2 of his Statement of Questions, Appellant argues that construction has

begun in violation of Condition 1 of the October 2006 Planning Commission decision,

which requires that all federal, state and local permits be obtained before development

commences. If construction has commenced and if other permits are required, the

municipality or any interested person is free to bring an enforcement action pursuant to 24

V.S.A. §4470(b). However, such an action must be filed by means of a complaint and

summons, and cannot be initiated as an issue in an appeal. V.R.E.C.P. 3(8). Therefore,

Appellant’s motion for summary judgment is also DENIED as to Question 2 of the

Statement of Questions, and that question is DISMISSED as beyond the scope of an appeal

from site plan approval.

       As Appellants’ Statement of Questions does not raise any other issues challenging

the merits of the approval of the site plan, Appellee-Applicant’s motion for summary

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judgment is GRANTED; it is therefore ORDERED and ADJUDGED that the site plan as

approved by the Planning Commission is hereby APPROVED. This decision concludes this

appeal.


      Done at Berlin, Vermont, this 21st day of May, 2007.




                          _________________________________________________
                                Merideth Wright
                                Environmental Judge




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