                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                                         }
In re: Deer View LLC PUD Subdivision Application         } Docket No. 182-8-07 Vtec
        (Appeal of Madden)                               }
                                                         }

            Decision and Order on Appellee-Applicant’s Motions to Dismiss
                  and on Appellant’s Motion for Summary Judgment

       Appellant John Madden appealed from a decision of the Planning Commission of

the Town of New Haven approving a six-lot commercial PUD subdivision. Appellant has

appeared and represents himself; Appellee-Applicant Deer View, LLC is represented by

Evan Punderson, Esq.; and the Town is represented by James Ouimette, Esq.

       This decision addresses Appellee-Applicant’s motions to dismiss Questions 2 and

3 of the Statement of Questions, and Appellee-Applicant’s motion to dismiss the appeal for

lack of standing on the part of Appellant, as well as Appellant’s motion for summary

judgment. Under the scheduling order governing this appeal, Appellant has until Friday,

February 15, 2007, to file (so that it is received at the Environmental Court) any further

response1 to Appellee-Applicant’s motion for summary judgment, dated from the January


       1
         On February 1, 2008, Appellant filed a response to Appellee-Applicant’s Motion
for Summary Judgment in the form of a photocopy of that motion with handwritten
deletions and additions, but without any responsive affidavits or other material to counter
Appellee-Applicant’s affidavit.
        As discussed in In re Morris 7-Lot Subdivision, 71-4-07 Vtec (Vt. Envtl. Ct. Nov. 26,
2007), each party’s motion for summary judgment is analyzed giving the nonmoving party
the benefit of all reasonable doubts and inferences. Alpine Haven Property Owners Ass'n,
Inc. v. Deptula, 175 Vt. 559, 561, 2003 VT 51, ¶8. In responding to a motion for summary
judgment supported by affidavits and other evidentiary material, the nonmoving party
“may not rest upon the mere allegations or denials in its pleadings.” White v. Quechee
Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999). Rather, V.R.C.P. 56(e) requires that the

                                             1
25, 2008 filing of Mr. Stout’s revised affidavit; therefore that motion will not be addressed

in this decision.



       Appellant has presented three questions in his Statement of Questions, all relating

to whether the proposal will cause danger to public safety due to the potential for traffic

accidents on Route 7 near the project driveway. Any facts stated in this decision are

undisputed unless otherwise noted.

       The project proposes a Planned Unit Development (PUD) subdivision of a 66-acre

parcel of land adjacent to U.S. Route 7; the internal subdivision roadway is proposed to

have a single access onto Route 7 approximately 2463 feet south of the intersection of Hunt

Road with Route 7. The proposed development consists of five2 commercial lots, ranging

from 1.7 to 2.2 acres each in area, as well as a 56.84-acre lot. The latter lot includes a 1.86-

acre building envelope for commercial development within the Commercial zoning district,

as well as the PUD roadway, wastewater system, stormwater system, 14.36 acres of open

agricultural land between Route 7 and the development lots, and 35.72 acres of other open

natural land, largely easterly of the development lots, some of which is wooded. All of the

more easterly area of the property located in the Residential zoning district is included in


opposing party must set forth specific facts showing a genuine issue for trial. Dillon v.
Champion Jogbra, Inc., 175 Vt. 1, 2–3 (2002). Those facts must be supported by affidavits
or other evidentiary material. Morway v. Trombly, 173 Vt. 266, 270 (2001). It is not
sufficient for the opposing party to rely on “conclusory allegations or mere conjecture.”
Mello v. Cohen, 168 Vt. 639, 641 (1998). “[M]ere allegations of counsel unsupported by
documented evidence are not enough to create a genuine issue of material fact” sufficient
to preclude summary judgment. Progressive Ins. Co. v. Wasoka, 178 Vt. 337, 349, 2005 VT
76, ¶25.
       2
         Four of these lots are located in the Commercial zoning district adjacent to Route
7, and the most southerly of these lots is located in the Industrial zoning district adjacent
to Route 7.

                                               2
the “open natural” area not proposed for building development.



       Applicant’s Motion to Dismiss for Lack of Standing

       Appellant lives on Hunt Road and uses the intersection of Hunt Road and Route 7

on a daily basis for access to and from the south (past the project property) to his property.

While his southwesterly property boundary is approximately 350 feet from the nearest

northeasterly point on the boundary of the project property, the only issues raised by the

Statement of Questions have to do with the safety of traffic on Route 7. Appellant’s

Question 1 alleges a physical or environmental impact on his use of the roadway, especially

at the intersection of Route 7 and Hunt Road, even though it is cast in terms of “public

safety.” That is, he is making this claim as a user of the roadway himself, and not simply

as an otherwise-disinterested citizen3 of the town.

       As discussed in In re Vanishing Brook Subdivision, Docket No. 223-10-07 Vtec (Vt.

Envtl. Ct. Jan. 16, 2008), under 24 V.S.A. § 4465(b)(3), to bring an appeal as an individual,

an appellant must own or occupy property “in the immediate neighborhood” of the

proposed project, must be able to “demonstrate a physical or environmental impact on the

person’s interest under the criteria reviewed,” and must allege that the DRB’s decision or

act, if upheld, “will not be in accord with the policies, purposes, or terms of the [municipal

plan or bylaw].”

       To determine whether a particular appellant is in the “immediate neighborhood”

for the purposes of this analysis, the Court examines “not only the proximity of the

appellant to the project on appeal, but also whether the appellant potentially could be

affected by any of the aspects of the project which have been preserved for review on



       3
        For such a claim, under 24 V.S.A. §4465(b)(4), a group of at least ten voters or
property owners is required for standing.

                                              3
appeal.” In re: Bostwick Road 2-Lot Subdivision, Docket No. 211-10-05 Vtec, slip op. at 2

(Vt. Envtl. Ct. Feb. 24, 2006), aff’d No. 2006-128 (Vt. Jan. 26, 2007) (unpublished mem.). See

also In re Appeal of Stanak and Mulvaney, Docket No. 101-7-01 Vtec (Vt. Envtl. Ct. Oct. 15,

2001) (citing In re Appeal of Brodhead, Docket No. E95-057 (Vt. Envtl. Ct. Aug. 3, 1995)).

Appellant clearly claims this effect in Section 1(b)(2) of his December 17, 2007 response to

the motion to dismiss by referring to “predictably certain accident, injury, and possible

fatality of the public and potentially myself (that is my almost daily route into

Middlebury).” For the purpose of considering the project’s effect on the roadways, which

is the issue on appeal, Appellant could potentially be affected by the project’s traffic, in his

use of the intersection of Hunt Road with Route 7, and in his traveling on Route 7 past the

project’s driveway. Appellant therefore meets the criteria for standing regarding the traffic

issue he has raised in Question 1.4



       Appellee-Applicant’s Motion to Dismiss Questions 2 and 3

       Appellee-Applicant has also moved to dismiss Questions 2 and 3 of Appellant’s

Statement of Questions, which are stated in terms of whether “the New Haven Bylaws

provide a way to prevent danger to public safety,” citing § 410.1 of the Subdivision

Regulations, and whether “the New Haven Planning Commission ha[s] the authority and

responsibility to prevent danger to public safety,” citing 24 V.S.A. §4325(3).

       Both of these questions pose purely advisory or theoretical questions taken by

themselves, which the Court is precluded from answering in the abstract. In re 232511

Investments, Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409, 417 (2006). However, the two cited

statutory and regulatory sections are relevant to the extent that they provide the regulatory



       4
        However, see footnote 1 above for the standard which Appellant must meet in
response to the pending motion for summary judgment.

                                               4
standard the Court must apply in evaluating whether the project complies with the

subdivision regulations as posed in Question 1.       Accordingly, they are dismissed as

separate questions considered independently of Question 1, but will instead be considered

by the Court as subsections of Question 1.



       Appellant’s Motion for Summary Judgment

       Appellant has moved for summary judgment, asking the Court to disapprove the

application on the basis of “common sense,” stating that “the Court is in a position of

responsibility and authority to prevent predictably certain accident, injury, and possible

fatality.” Appellant has supported this motion with accident summaries on Route 7 from

the years 1998 through 2005, between Town Hill Road and River Road, as well as one

accident investigation report at the intersection of Dog Team Road with Route 7 in 2002.

       While courts make every effort to interpret regulations and statutes “in harmony

with common sense and sound reason,” In re Green Crow Corp., 2007 VT 137, ¶ 17

(internal citation and quotation omitted), summary judgment must also be based upon

undisputed facts linking the “common sense and sound reason” to the proposed project,

in exactly the same way in which a decision on the merits after trial must be based on

factual findings showing how the proposed project will or will not conform to the

applicable regulatory criteria.

       Appellee-Applicant has come forward with an affidavit of the project engineer

describing the topography of Route 7 and other roadways in the project’s vicinity, and the

long unobstructed sight distances north and south of the project driveway, together with

the engineer’s professional engineering opinion that the layout and design of the roads will

not cause any danger to public safety.

       Giving Appellee-Applicant, as the nonmoving party, the benefit of all reasonable

doubts and inferences (see footnote 1, above), Appellant’s motion for summary judgment

                                             5
must be denied, as material facts are disputed as to whether the proposed PUD subdivision

would have any adverse effect on the safety of the traffic on Route 7. Therefore, unless

Appellee-Applicant’s own motion for summary judgment is granted, the disputed material

facts remain for trial as scheduled on March 12, 2008.




       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellant’s motion for summary judgment is DENIED; Appellee-Applicant’s motion to

dismiss the appeal for Appellant’s lack of standing is DENIED; and Appellee-Applicant’s

motion to dismiss Questions 2 and 3 of the Statement of Questions is Granted in Part and

Denied in Part, in that Questions 2 and 3 call for impermissible advisory opinions from the

Court taken by themselves, but are relevant to the extent that they pertain to Question 1.

The matter remains scheduled for trial on March 12, 2008, until further order of the Court;

any requests for findings and any further memoranda of law shall be filed at trial.


       Done at Berlin, Vermont, this 5th day of February, 2008.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




                                            6
