                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeal of Glenn and Elouise          }     Docket No. 54-4-03 Vtec
             Martin                               }
                                                  }
                                                  }
                                                  }

                      Decision and Order on Motion for Summary Judgment

Appellants Glenn and Elouise Martin appealed from a decision of the Development Review Board
(DRB) of the Town of Jericho, denying their application for a conditional use permit for single
family dwellings on Lots 7, 16 & 19 of their commercial subdivision. Appellants are represented
by Vincent A. Paradis, Esq.; and the Town is represented by Gregg H. Wilson, Esq. Interested
persons Robert W. Abbey and John R. Burke entered their appearance on their own behalf, but
                                   1
did not participate in the briefing of the motion for summary judgment.

The Town has moved for summary judgment that a 1999 decision denying approval for the
residential use of these lots precludes their consideration for approval in the present proceeding.
The following facts are undisputed unless otherwise noted.

In April of 1987 the then-Planning Commission of the Town of Jericho approved Appellants= 32-
lot commercial subdivision in the Commercial/Light Industrial zoning district. In 1993 other lots in
the subdivision were approved for residential use. In April of 1999 Appellants received conditional
use approval for the single-family residential use of four lots in the subdivision (Lots 6, 9, 17 and
18) and were denied approval for single-family residential use of the three lots (Lots 7, 16 and 19)
that are the subject of the present application. That decision stated no reasons for the denial of
residential use of Lots 7, 16 or 19. That decision was not appealed and became final.

In January of 2003 Appellants again applied for conditional use approval for single-family
residential uses on Lots 7, 16 and 19. The DRB denied the application stating that the application
for residential use of these lots was denied in 1999, that there had been Ano change in zoning
which would allow for reopening@ the April 1999 decision, and that the project A would not be in
general harmony with the surrounding commercial uses and would detract from abutting
properties as per section 301.4.3.2(b) and 301.4.3.4(a)@ of the zoning regulations. Appellants
appealed this decision to this Court.

A second application for the same approval for the same property is generally precluded by 24
V.S.A. ' 4472 (exclusivity and finality of judgment), unless there has been a substantial change in
conditions or other intervening considerations between the denial and the second request.
Appellants argue that there has been such a substantial change of conditions in that several
additional commercial uses in the area have since been converted to mixed residential and
commercial uses.

Material facts are in dispute as to whether any changes in conditions since the 1999 denial of
residential uses for these three lots justify the present consideration of residential uses for these
three lots.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= s
Motion for Summary Judgment is DENIED as material facts are in dispute. We will hold a
telephone conference on September 22, 2003 to discuss when to set this matter for a hearing on
the merits, and whether the hearing to consider whether there has been a change of conditions
should be held and decided in advance of the hearing on the merits of the application.

                             th
Done at Barre, Vermont, this 8 day of September, 2003.

___________________
Merideth Wright
Environmental Judge




                                           Footnote

1.
  However, the attorneys should have provided these other parties with copies of their motion
memoranda.
