                                     State of Vermont
                          Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Champlain Valley Meats Inc. Act 250 Application           Docket No. 15-2-11 Vtec
(Appeal from District 6 Environmental Commission determination)

Title: Motion for Summary Judgment (Filing No. 1)
Filed: May 13, 2011
Filed By: John H. Hasen, Attorney for Appellee Vermont Natural Resources Board

Title: Response and Cross-Motion for Summary Judgment (Filing No. 2)
Filed: June 7, 2011
Filed By: Frank H. Langrock, Attorney for Appellant/Applicant Champlain Valley Meats, Inc.
Response filed on 6/22/11 by John H. Hasen, Attorney for Appellee Natural Resources Board


 ___ Granted                  ___ Denied                     X Other

        Before us on appeal is a decision by the District 6 Environmental Commission (“District
Commission”) denying Champlain Valley Meats, Inc. (“Applicant”) an amendment to a state
land use permit for the construction of three additions that it has already completed to an
existing slaughterhouse in the Town of Grand Isle, Vermont. The District Commission
concluded that the additions do not comply with criteria 8 and 10 of 10 V.S.A., Chapter 151
(commonly known as “Act 250”). See 10 V.S.A. § 6086(a)(8), (10). Applicant has appealed that
decision. Currently pending before the Court are competing cross-motions for partial summary
judgment filed by Applicant and the Vermont Natural Resources Board (“NRB”) on the
question of compliance under criterion 10.
Summary Judgment Standard
         Before this Court can issue summary judgment for a party, we must conclude that there
are no disputed material facts and that one of the parties is entitled to judgment as a matter of
law. See V.R.C.P. 56; V.R.E.C.P. 5(a)(2). An important part of our summary judgment rule is
the requirement that each moving party include a statement of undisputed material facts with
their filing. See V.R.C.P. 56(c)(2) (“There shall be annexed to the motion a separate, short, and
concise statement of the material facts as to which the moving party contends that there is no
genuine issue to be tried.”). This requirement is sometimes overlooked when, as here, the
parties file cross-motions for summary judgment.
       Our Supreme Court has affirmed a trial court’s grant of summary judgment reached in
the absence of a statement of undisputed material facts by the successful party. See State v.
Great Northeast Production, Inc., 2008 Vt. 13, ¶¶ 5–8, 183 Vt. 579. However, we hesitate to find
material facts undisputed when it is unclear whether the opposing party had notice of an
asserted fact. As explained in more detail below, because we are unclear whether a fact
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material to our analysis under criterion 10 is, in reality, undisputed, with this Entry Order we
request further filings from Applicant and NRB before adjudicating their cross-motions for
summary judgment.
       We turn now to a description of the applicable legal standard under criterion 10 and a
discussion of the record currently before us.
Act 250 Criterion 10
        For a district commission, and, by extension, this Court, to conclude that a proposed
development complies with Act 250 criterion 10, an applicant must demonstrate that the
development conforms with the applicable town and regional plan. See 10 V.S.A. §§ 6086(a)(10)
(requiring conformance with “any duly adopted local or regional plan”), 6088(a), 8504(h). Here,
the District Commission found that the three additions to the existing slaughterhouse conform
with the Northwest Regional Plan, but not the Town of Grand Isle Town Plan (“Town Plan”).
Applicant appealed the portion of that decision adverse to it. Because the question before us in
this de novo appeal is whether the three additions to the slaughterhouse conform with a duly
adopted town plan, we must first determine what version of the Town Plan applies before we
can determine if either party is entitled to summary judgment on the question of whether
Applicant’s additions conform with the applicable town plan.
        Our Vermont Supreme Court has established that a landowner is entitled to review of
his or her land use proposal under the version of the land use laws in effect at the time the
landowner submits a “proper application.” See In re Ross, 151 Vt. 54, 56–57 (1989) (citing Smith
v. Winhall Planning Comm’n, 140 Vt. 178, 1981). In the context of Act 250, we commonly look
to those laws in effect when an applicant submits a complete Act 250 application. See id. While
this is the rule stated generally, the doctrine of vested rights often requires careful
consideration, especially in the context of Act 250 criterion 10.
        In determining compliance with criterion 10, if an Act 250 applicant has “diligently
pursue[d] a proposal through the local and state permitting processes before seeking an Act 250
permit, conformance under [the town and regional plans] . . . is to be measured with regard to
zoning laws in effect at the time of a proper zoning permit application.” In re Molgano, 163 Vt.
25, 33 (1994) (emphasis added). Because the doctrine of vested rights operates to protect the
rights of landowners/applicants, we have also allowed Act 250 applicants to request that their
applications be measured against a subsequently adopted town plan when its revised
provisions favor the applicant. See In re Eastview at Middlebury, Inc., No. 256-11-06 Vtec, slip
op. at 24 (Vt. Envtl. Ct. Feb. 8, 2008) (Durkin, J.), aff’d 2009 VT 98.
Record Before the Court
         It is not entirely clear on what date Applicant represents that it submitted a proper
zoning permit application to the Town of Grand Isle, and it is uncertain whether the opposing
party here, NRB, had sufficient notice of that representation to prompt a response. In its
memorandum, Applicant includes the statement that the owner of the slaughterhouse, “in 2008
. . . applied for and received Town permits to install the additions to the facility.” (Response to
Mot. for Summ. J. and Cross Mot. for Summ. J. 2, filed June 7, 2011.) However, this fact is
neither incorporated into a statement of undisputed material facts nor a separate affidavit, nor
is it particularly conspicuous within Applicant’s memorandum. Applicant has also submitted,
but not explained, an attachment to its cross-motion for summary judgment including a number
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of documents labeled “Town of Grand Isle Zoning Permits” with dates ranging from 1998 to
2008. (See id., Exhibit A, Attachment 3.)
       Because we are hesitant to conclude that this material fact is undisputed based on the
record before us, we ask that the parties supplement their filings before we rule on their
competing motions for summary judgment.
Conclusion
        We give Applicant until Tuesday, November 22, 2011 to submit a statement of
undisputed material facts that indicates the date on which it submitted a proper application for
a zoning permit for its additions to the slaughterhouse, and NRB has until Thursday, December
8, 2011 to file a response to that statement. Each party must also either provide a certified copy
of the Town Plan and municipal bylaws, if applicable, that it represents applies here, or
reference copies that are already part of the record. To the extent that either party believes that
other facts are undisputed and material to the legal issues presented by their respective motions
(but not yet part of the statement of undisputed material facts that NRB submitted), they may
also include those facts in their supplemental filings.



_________________________________________                                        November 8, 2011         _
       Thomas S. Durkin, Judge                                                        Date
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Date copies sent to: ____________                                           Clerk's Initials _______
Copies sent to:
  Frank H. Langrock, Attorney for Appellant/Applicant Champlain Valley Meats, Inc.
  Eric M. Knudsen, Co-counsel for Appellant/Applicant Champlain Valley Meats, Inc.
  John H. Hasen, Attorney for Vermont Natural Resources Board/Land Use Panel
  Vermont Agency of Natural Resources (FYI purposes only)
