 

Fll_ED

STATE OF VERMONT APR 2 7 2[]1[]
VERMONT
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NVIRONMENTAL COURT ENV|RONMENTAL COURT

In re DeSimone and Moisis Family Trust Docl<et No. 247-12-09 Vtec

Conditional Use Application

Decision and Order on Motion to Dismiss Parties

 

Appellant-Applicants Mary DeSimone and the Moisis Family Trust appealed
from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Rocl<ingham,
denying their conditional use application for a crematorium with an associated chapel.
The proposed project is located in the Village of Bellows Falls, within the Town of
Rockingharn. Appellant-Applicants are represented by Liam L. Murphy, Esq. and
Pamela A. Moreau, Esq.; and the Town is represented by Stephen S. Ankuda, Esq. Ms.
Evelyn F. Weeks and Mr. Andrew E. Smith have each entered appearances as interested
parties representing themselves.

Appellant-Applicants have moved to dismiss Mr. Smith and Ms. Weel<s as
parties to this appeal, asserting that neither one qualifies as an “interested person”

under 24 V.S.A. § 4465.

Procedural History
In their application submitted to the ZBA, Applicants seek conditional use

approval to construct a crematorium and a chapel within an existing building located at

30 Island Street in the Village of Bellows Falls.1 The ZBA reviewed the conditional use

 

l The application also sought site plan approval and design review for the project
which is Within the jurisdiction of the Planning Commission rather than that of the
ZBA. In Rocl<ingham, the ZBA and the Planning Commission are separate municipal
panels, rather than a combined development review board, although the two panels are

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application during two warned public hearings held on October 21 and November 18,
2009. The ZBA issued its written decision denying the conditional use application on
November 23, 2009 (the ZBA Decision); Appellant-Applicants filed a timely appeal of
the ZBA Decision with this Court. n

As noted in the ZBA Decision, the ZBA consists of seven members, two of whom
recused themselves from consideration of the application due to a conflict of interest
and one of whom was not present, leaving only four members to vote on the
application. ZBA Decision, at 4-5. Because ”a majority of the full board, rather than
merely a majority of those present, must concur to exercise the [ZBA]'s authority," four
votes were needed in order to approve the application. In re: Walsh d[lg[a Deerwood
Estate Conditional Use Application, No. 122-6-09 Vtec, slip op. at 22 (Vt. Envtl. Ct. Dec.
9, 2009) (Wright, ].) (citing 1 v.s.A. § 172; in re Reynoids, 170 vt 352, 356 (2000)). AS
reflected in the ZBA decision, only three members voted in favor of the application, and
one member voted against it. ZBA Decision, at 4. Because the application did not
receive a positive vote from at least four ZBA members, it was denied. M.

After Appellant-Applicants appealed the ZBA denial to this Court, Mr. Smith
and Ms. Weeks each entered an appearance in this matter. Appellant-Applicants have
now moved to dismiss Mr. Smith and Ms. Weeks as parties to this appeal, on the

ground that neither party qualifies as an “interested person” under 24 V.S.A. §4465.

 

made up of the same members. See 24 V.S.A. §4460(b) (”The board of
adjustment . . . may consist of the members of the planning commission . . . or may
include one or more members of the planning commission . . . ."); §. § 4462 (”If more
than one type of review is required for a project, the reviews, to the extent feasible, shall
be conducted concurrently.”). The Planning Commission granted site plan approval for
the proposed project in the same written decision in Which the ZBA addressed
Applicants’ conditional use application. The factual findings in the decision were made
jointly by the ZBA and the Planning Commission. The conclusions in the decision were
made separately by the ZBA (for conditional use review) and by the Planning
Commission (for site plan and design review). The Planning Commission’s grant of site
plan approval and design review is not at issue in the present appeal.

2

It is important to note again at the outset, as the Court noted in its March 3, 2010
entry order, that only Appellant-Applicants have filed an appeal of the ZBA Decision
denying their application. Mr. Smith and Ms. Weeks have not filed an appeal and
therefore cannot raise any issues in this appeal. See V.R.E.C.P. 5(f) (stating that the
appeal is limited to those issues included in the Statement of Questions, Which is only
filed by a party appellant). Instead, Mr. Smith and Ms. Weeks have merely entered
their appearances in this matter as interested parties, as provided in V.R.E.C.P. 5(c) and
10 V.S.A. § 8504(n)(5).

Because neither Mr. Smith nor Ms. Weeks has filed an appeal or cross-appeal, the
question of whether either ”participated” in the ZBA hearings is irrelevant to their
ability to participate as an interested party in the appeal filed by Appellant-Applicants.
Such participation at the municipal level is only a prerequisite to filing an appeal as an
appellant or cross-appellant, not to participating as an “interested person” in an appeal
. filed by another. Compare 24 V.S.A. §4471(a), and 10 V.S.A. § 8504(b)(1) (requiring
both qualification as an "interested person” as defined by 24 V.S.A. § 4465(b) and prior
\"participation” as defined by 24 V.S.A. §4471(a) in order to file an appeal With the
Environmental Court), with 10 V.S.A. §8504(n)(5), and V.R.E.C.P. 5(c) (requiring only
qualification as an ”interested person” as defined by 24 V.S.A. §4465(b) to enter an
appearance and participate in an appeal filed by another with the Environmental
Court). In addition, a party seeking to participate in a municipal appeal Who does not
qualify as an “interested person” may nevertheless intervene in the appeal if that
person meets the standards for intervention in the Vermont Rules of Civil Procedure
(V.R.C.P. 24). 10 V.S.A. § 8504(n)(6). No party has sought to intervene under 10 V.S.A.
§ 8504(n)(6) at this time.

All that is before the Court in the present motion is whether Mr. Smith and Ms.
Weeks qualify as ”interested persons," as that term is defined in 24 V.S.A. § 4465(b), so

that they may continue to participate in this appeal. Regardless of Whether they
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continue to participate, the only issues before the Court in this appeal are those raised
by Appellant-Applicants in their Statement of Questions. V.R.E.C.P. 5(f); see also In re
Garen, 174 Vt. 151, 155 (2002) (stating that ”the rules governing appeals in the

environmental court do not provide for an intervening party to augment the issues on

appeal”).

Scheduling Order Regarding Appellant-Applicants’ Statement of Ouestions

In an appeal before this Court, the Statement of Questions filed by the appellant
governs the scope of the appeal. V.R.E.C.P. 5(f). In their Statement of Questions,
Appellant-Applicants raise only the following three questions:

1. Is it appropriate to deny conditional use approval for the
application in light of the positive findings of fact made by the majority of
the board present and voting?

2. Is it appropriate to deny conditional use approval for the
application in light of the failure of the sole dissenting vote to set forth as
[sic] reasons for such dissenting vote?

3. ls it appropriate to deny conditional use approval for the
application in light of the positive findings of fact and Site Plan approval
of the application by the Zoning Board of Adjustment?lzl

All three questions in the Statement of Questions ask the Court only to review
the appropriateness of the ZBA’s actions, rather than asking this Court to make a g
M decision on the merits of the conditional use application without regard to the
ZBA’s vote or the Planning Commission’s site plan approval. However, because the

Town of Rockingham has not adopted and implemented the procedures necessary for

 

_ 2 As discussed in footnote 1, above, although the factual findings in the decision were
made jointly by the ZBA and the Planning Commission, the conclusions and decision
for site plan and design review were made only by the Planning Commission.

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on-the-record appeals, see 24 V.S.A. § 4471(b), the appeal of the ZBA decision to this
Court is _d_e no_vQ. V.R.E.C.P. 5(g),' 10 V.S.A. § 8504(h).

ln a g M appeal such as this one, the Court ”hear[s] the evidence anew ‘as if
it had not been heard before and as if no decision had been previously rendered."' me

Godnick Family Trust Permit & Varia_nce Application, No. 52-4-09 Vtec, slip op. at (Vt.
Envtl. Ct. ]an. 6, 2010) (Durkin, ].) (quoting State v. Madison 163 Vt. 360, 370 (1985)). In

 

reviewing the application anew, the Court is ”instructed to apply ‘the substantive
standards that were applicable before the tribunal appealed from.”’ E. (quoting 10
V.S.A. § 8504(h)).

Therefore, the Court does not review the appropriateness of the ZBA's actions, as
the Statement of Questions seems to ask; rather, if a statement of questions raises issues
regarding the merits of the application, the Court ordinarily hears evidence and
considers whether to grant or deny the requested approval. Accordingly, the Court
will proceed in this case to address only the essentially procedural issues raised by the
Statement of Questions-regarding whether it was appropriate for the ZBA to deny the
application on a 3-1 favorable vote--unless Appellant-Applicants wish to move to
amend their Statement of Questions. lf they wish to do so, they may file any such

motion on or before May 14, 2010.

Interested Person Party Status

Section 4465(b) of Title 24 defines five categories of “interested persons.” The
only category applicable to Mr. Smith and Ms. Weeks in the present case is § 4465(b)(3),

governing the standing of individuals.3 Section 4465(b)(3) contains ”three elements of

 

3 The other four categories of ”interested person," defined in 24 V.S.A. §§ 4465(b)(1), (2),
(4) and (5), pertain to (1) the applicant or other property owner whose property is the
subject of the case; (2) the municipality whose plan or bylaw is at issue in the case; (4) a

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standing” required of an individual seeking interested person status. ln re Vanishing

 

Brook Subdivision No. 223-10-07 Vtec, slip op. at 6 (Vt. Envtl. Ct. ]an. 16, 2008) (Wright,
].) (quoting 24 V.S.A. §4465(b)(3)). Specifically, 24 V.S.A. §4465(b)(3) requires an
interested person to meet three distinct elements: to own or occupy property ”in the
immediate neighborhood” of the proposed project; to “demonstrate a physical or
environmental impact” on the person’s interest ”under the criteria reviewed”; and to
allege that the decision on appeal, ”if confirmed,” will not be “in accord with the
policies, purposes, or terms of the [municipal] plan or bylaw." I_d_.; see also, e.g., A_ppe_al

of Yates No. 158-9-04, slip op. at 5 (Vt. Envtl. Ct. Apr. 17, 2007) (Durkin, ].) (discussing

 

the requirements of § 4465(b)(3)). In their motion, Appellant-Applicants argue that
neither Ms. Weeks nor Mr. Smith meets any of the requirements of § 4465(b)(3).

Any analysis of standing under § 4465(b)(3) requires an understanding of the
layout and context of the neighborhood of the proposed project, to the extent that those
facts are not contested. As described in the ZBA Decision, the project is proposed to be
developed in an existing building located at 30 Island Street, Which is in an Industrial 14
and a Design Review zoning district in the so-called Island area of the Town. DRB
Decision, at 2. The Island area is an area of old industrial buildings, separated from the
downtown commercial area of the Village of Beliows Falls by a canal to the west of the
Island; two bridges provide access over the canal from the downtown commercial area
of the Village to the Island area. _I_d__. The Connecticut River borders the Island area to
the north, east, and south. M.

The project building was previously used at various times for a 215-seat
restaurant, for a 50-seat lounge, and for a food manufacturing use. E. at 1. Appellant-
Applicants have received approval to operate a clothing manufacturing use in a portion

of the building M. The project at issue in the present case proposes a 50-seat chapel

 

group of at least ten citizens or property owners of the municipality wishing to
challenge a proposal or action; and (5) certain state entities.

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and a two-unit propane-fueled crematorium, one allocated to the cremation of pets and
one to human remains; two smokestacks are proposed for the project. l_d.

To the north and east of the project property are a railroad yard and a train
station that is used for seasonal excursion train rides. M. at 2. To the east of the project
property is a paper manufacturer; to the south of the project property is an auto repair
business with a retail auto parts shop; and to the west, the project property is bounded
by the tracks serving Central Vermont Railroad. ld. Across the railroad tracks from the
project property, but still in the Island area and the Industrial 14 zoning district, is a
municipal property known as the Waypoint Center, which is used for a Welcome center
and for chamber of commerce offices. E. The project proposes to use the parking

facilities of the Waypoint Center. M.

Mr. Smith’s ”Interested Person” Status

 

Based on Mr. Smith’s March 15, 2010 filing, Mr. Smith does not qualify as an
“interested person” under 24 V.S.A. §4465(b)(3) because his property is not in the
”immediate neighborhood” of the project property. He also has not demonstrated what
7 ”physical or environmental impact” the project will cause on his interest ”under the
criteria reviewed," that is, under the conditional use criteria in the Town of Rockingham
zoning ordinance.4

Mr. Smith and his wife live and Work at their residential property, located at 126
Atkinson Street (Route 5), which runs in a north-south direction several blocks to the
west of the canal. Smith Response to Motion to Dismiss, at 1 (Mar. 15, 2010) [hereinafter
Smith Response]; see also Appellant-Applicants’ Exhibits C & D (aerial photos of the

area surrounding the project property). The Smith property is located 2250 feet, or

 

4 The parties have not provided the ordinance or the criteria applicable to conditional
_ use approval,' the ZBA Decision states that the conditional use criteria are found in
§ 1413 of the zoning ordinance. ZBA Decision, at 3.

7

approximately a half mile, to the north and west of the project property. Smith
Response, at 1; Appellant-Applicants' Exhibits C & D. Due to the relative locations of
the two properties, the proposed project is not visible from the Smith residence

The determination of whether an individual is in the ”immediate neighborhood”
of a proposed project is not strictly based on distance, but instead depends on ”whether
the [party] potentially could be affected by any of the aspects of the project which have
been preserved for review on appeal.” See In re Vanishing Brook Subdivision, No. 223-
10-07 Vtec, slip op. at 6 (quoting In re: Bostwick Road 2-Lot Subdivision, No. 211-10-05
Vtec, slip op. at 2-3 (Vt. Envtl. Ct. Peb. 24, 2006) (Durkin, ].), M, No. 2006-128 (Vt. ]an.
2007) (unpublished mem.)). This test is similar to the second requirement of 24 V.S.A.
§4465(b)(3): that the project must have the potential to cause a physical or
environmental impact on the interested person’s interest.

Although Mr. Smith states in his response that he is able to demonstrate a
potential ”physical or environmental impact on [his] interest, and on the interest of [his]
family and property,” Smith Response, at 1, he has not given any information as to
what that impact might be, if anything He has failed to provide any statement or
evidence demonstrating any actual or potential “physical or environmental impact"
from the proposed project that is specific to him or his property, as opposed the
project’s potential effect in general5 Further, Mr. Smith has not demonstrated any link
to such a physical or environmental impact ”under the criteria reviewed,” that is, under
the conditional use criteria.

Accordingly, because Mr. Smith’s property is not in the “immediate

neighborhood” of the project property, and because he has not demonstrated What

 

5 Without such a physical or environmental impact, the statute requires a group of ten
or more citizens or property owners in a municipality to group together, in order to
challenge action that they believe is contrary to that municipality's policies. 24 V.S.A.

§ 4465(b)(4).

”physical or environmental impact” the project will cause on his interest ”under the
criteria reviewed," he does not qualify as an ”interested person” under 24 V.S.A.
§4465(b)(3). Appellant-Applicants’ motion to dismiss him as a party must therefore be
granted.

Ms. Weeks’ ”Interested Person" Status

Appellant-Applicants also argue that Ms. Weeks fails to qualify as an ”interested
person” under 24 V.S.A. §4465(b)(3). Although Ms. Weeks’ residence is farther from
the project property than is Mr. Smith's, she does not assert ”interested person” status
due to the location of her residence. Rather, she claims ”interested person” status under
24 V.S.A. § 4465(b)(3) due to her work location in the Waypoint Center, which is located
immediately across the railroad tracks from the project property. Weeks Response to
Motion to Dismiss, at 1 (Mar. 11, 2010) [hereinafter Weeks Response].

The Waypoint Center is part of the Connecticut River National Byways program;
it serves tourists traveling in the region, provides local historical information, and rents
space for business conferences E. The Waypoint Center hosts tourist-focused and
local events such as Rockingham Old Home Days, a Farmers’ Market, Alumni
Weekend, Santa Claus Train, Thomas the Train, barbecues, school picnics, and other
school functions M. The proposed crematorium Will be located directly outside Ms.
Weeks’ office window in the Waypoint Center, Where she has worked for seven years
Q.

As to the first requirement of § 4465(b)(3), Ms. Weeks ”occup[ies] property in the
immediate neighborhood” of the project property. Nothing in § 4465(b)(3) limits such
”occupancy" of property to the use of property as a residence, any more than it limits
ownership of property only to residential properties Rather, § 4465(b)(3) allows either
an owner g an occupier of property to qualify as an l’interested person,” Whether the

property is residential, commercial, industrial, or in some other use.
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'l`he second element of § 4465(b)(3) requires the interested person to demonstrate
a potential ”physical or environmental impact” on his or her interest ”under the criteria
reviewed." Ms. Weeks has shown a potential physical or environmental impact on her
interest in her work environment that is different from the project's potential effect in
general. The project's smokestacks are proposed to be located directly outside her office
Window, so that the potential for the emission of "ash,” “soot,” and ”odor” from the
crematorium could have a physical or environmental effect on her interest M. Also,
because no parking is available on the project property’s lot, the project has the
potential for an effect on the parking available in the Waypoint Center lot. _l_c_i. These
potential effects relate to several of the applicable conditional use criteria, such as the
requirement that the project not adversely affect the character of the area.6 Therefore,
Ms. Weeks satisfies the second requirement for party status under §4465(b)(3), and
Appellant-Applicants' motion to dismiss her as -an interested party under the first or
second element of § 4465(b)(3) must be denied.

Appellant-Applicants also argue that the Court should dismiss Ms. Weeks
because she has failed to ”show that the Project, if approved ’will not be in accord with
the policies purposes or terms of the plan or bylaw' of the municipality.” Appellant-
Applicants’ Motion to Dismiss at 1-2 (Feb. 26, 2010). By this statement, Appellant-
Applicants appear to imply that Ms. Weeks has failed to meet the third element under
§ 4465(b)(3). However, Appellant-Applicants’ formulation of the third element
misrepresents what is required by that provision. Instead, the final clause of
§4465(b)(3) requires that the interested person claim ”that the decision or act [being
appealed], if confirmed, will not be in accord with the policies purposes or terms of the

[municipal] plan or bylaw.” ln the present case, the decision or act on appeal is the

 

6 See ZBA Decision, at 3 (listing the conditional use criteria found in §1413 of the
Zoning Bylaw).
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decision to deny the permit. Ms. Weeks appears to support that denial rather than to
claim that the denial would be contrary to the municipal plan or bylaw.

As Appellant-Applicants have not addressed in their memorandum the actual
language of the third element of § 4465(b)(3), their motion to dismiss Ms. Weeks as a
party under this element of §4465(b)(3) is also denied, but with leave to renew the
motion on this ground if they wish to brief this argument more fully. Ms. Weeks
therefore remains a party at this time. See V.R.E.C.P. 5(d)(2) (stating that a person
wishing to enter an appearance as an interested party ”will be accorded party status
unless the court otherwise determines on its own motion, on motion to dismiss a party,

or on a motion to intervene”).

Accordingly, based on the foregoing it is hereby ORDERED and ADIUDGED
that Applicants' Motion to Dismiss Mr. Smith and Ms. Weeks as interested parties is
GRANTED as to Mr. Smith, and DENIED as to Ms. Weeks With leave to renew as

discussed above.

On or before May 14, 2010, Appellant-Applicants may file any motions to amend
their Statement of Questions as discussed above, and may file any renewed motion to
dismiss Ms. Weeks Responses to any such motions may be filed on or before ]une 1,
2010; any replies to such responses may be filed on or before ]une 9, 2010.

' Any motion to intervene under V.R.C.P. 24 (copy enclosed), as provided in 10
V.S.A. § 8504(n)(6), shall be filed on or before May 20, 2010. Responses to any such
motion may be filed on or before ]une 1, 2010,' any replies to such responses may be
filed on or before ]une 9, 2010.

Of course, the proceedings in this matter remain open to the public. Any person

dismissed as a party who wishes to remain on the Court’s mailing list to receive an

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informational copy of any notices issued by the Court may so request the Court staff in

Writing (2418 Airport Rd., Barre, VT 05641) or by telephone (802-828-1660).

Done at Berlin, Vermont, this 2'7th day of April, 2010.

Merideth Wright §

Environmental ]udge

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RULE 24. INTERVENTION

(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (l) When a statute confers an
unconditional right to intervene; or (2) When the applicant claims an
interest relating to the property or transaction Which is the subject of the
action and the applicant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant’s ability to protect thatl
interest, unless the applicant’s interest is adequately represented by
existing parties

(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (l) when a statute confers a conditional
right to intervene; or (2) when an applicant’s claim or defense and the main
action have a question of law or fact in common When a party to an action
relies for ground of claim or defense upon any statute or executive order
administered by a federal or state governmental officer or agency or upon
any regulation, order, requirement or agreement issued or made pursuant
to the statute or executive order, the officer or agency upon timely
application may be permitted to intervene in the action. In exercising its
discretion the court shall consider Whether the intervention Will unduly
delay or prejudice the adjudication of the rights of the original parties

