                                 STATE OF VERMONT

                        VERMONT ENVIRONMENTAL COURT

                                          }
In re Appeal of Concerned Citizens        }             Docket No: 205-11-99 Vtec
       of West Shore Road                         }
                                          }

                               Order on Pending Motions

       This is an appeal of site plan approval granted to Appellee-Applicants. Appellants
are represented by Mark E. Naud, Esq.; Appellee-Applicants William Willey and Constance
Willey are represented by Elizabeth M. Demas, Esq. and Bruce D. Baker, Esq.; a group of
intervening interested parties supporting the application is represented by George E. Taft,
Esq.; other intervening interested parties supporting the application represent themselves.
Of this latter group, Mr. John Roy has been participating in pretrial proceedings as a
representative of the others, to facilitate communication with the Court and the other
parties. The Town of South Hero has not entered an appearance in this matter. The
hearing on the merits1 of this appeal is scheduled for May 25, 2000.
       As stated in its April 24, 2000 order, the Court must determine the issues posed by
Appellants= Statement of Questions: whether the application is complete under the
standards of '508 of the Zoning Regulations, and whether the conditions and safeguards
imposed by the Planning Commission should be imposed by the Court in this de novo
proceeding, or should be changed in any way.
       On May 10, 2000, Appellee-Applicants moved to limit the issues at trial to (1)
whether the application, as amended, is complete under the standards of '508 of the
Zoning Regulations, and (2) whether the conditions and safeguards imposed by the


       1
           The Court finds no basis for the characterization of the scheduled May 25, 2000
hearing in Appellants= May 18, 2000 Motion for Remand as a Apreliminary@ merits hearing.
It is not; it is the final hearing on the merits of the appeal.




                                              1
Planning Commission should be imposed by the Court, or should be changed in any way,
with respect to Appellee-Applicants= intended use of the kitchen for off-site catering.
       In their May 18, 2000 response to Appellee-Applicants= Motion to Limit Issues,
Appellants stated that they Agenerally agree with the Court=s characterization of their
concerns@ (in the April 24, 2000 order) as having been Aconcerned more with the impact of
off-site catering from the so-called commercial kitchen, rather with the on-site functions
considered and specifically regulated under the Planning Commission=s decision.@
However, rather than taking a position on the Motion to Limit Issues, Appellants instead
have filed a Motion to Remand, arguing that Appellee-Applicants failed to provide sufficient
information to the Planning Commission from which it could have determined that two
kitchens were proposed, or from which it could have assessed the impact of the use of the
kitchen for off-site as well as on-site catering.
       While the Planning Commission=s decision explicitly addressed only the on-site
functions proposed for the property, the test for whether an application must be remanded
is found in the scope of the application, not the scope of the Planning Commission=s
decision. That is, the Court must determine whether the issue on which remand is sought
is one that was presented and available to the Planning Commission for decision, In re
Maple Tree Place, 156 Vt. 494, 500 (1991), regardless of whether the Planning
Commission actually addressed the issue in its decision.
       In the present case, Appellants seem to be raising two related but different issues:
whether the proceedings before the Planning Commission disclosed that two kitchens were
proposed for Appellee-Applicants= building, and whether the proceedings before the
Planning Commission disclosed that Appellee-Applicants proposed to cater off-site as well
as on-site events. Appellee-Applicants= response to the motion demonstrates that both
issues were raised before the Planning Commission sufficiently to defeat the motion for
remand. The adequacy of the evidence on those issues, of course, will be tested by the
Court de novo in this proceeding.


       Accordingly, Appellants= Motion to Remand is DENIED. The application will be
considered de novo by the Court on the issues which Appellants have appealed and which

                                               2
the Planning Commission had before it for decision, whether or not the Planning
Commission actually addressed those issues in its decision. As the proceeding is de novo,
the parties will be free to present additional evidence on those issues.


       Appellee-Applicants= Motion to Limit Issues is GRANTED; the May 25 hearing will be
limited to the following two issues: (1) whether the application, as amended, is complete
under the standards of '508 of the Zoning Regulations, and (2) whether the conditions and
safeguards imposed by the Planning Commission should be imposed by the Court, or
should be changed in any way, with respect to Appellee-Applicants= intended use of the
building for off-site catering.


       Appellee-Applicants also moved on May 19, 2000 to have certain requests to admit
deemed admitted, and for sanctions for Appellants= failure to admit those matters. This
motion is DENIED at this time, without prejudice to its being raised again after trial, as the
requests to admit were only served on May 4, 2000 and insufficient time has elapsed for
the court to rule on the motion under V.R.C.P. 36.




       Dated at Barre, Vermont, this 22nd day of May, 2000.



                                    ______________________________________
                                    Merideth Wright
                                    Environmental Judge




                                              3
