                                       STATE OF VERMONT

                                    ENVIRONMENTAL COURT

             Appeal of Sime                       }
                                                  }
                                                  }     Docket No. 58-4-04 Vtec
                                                  }
                                                  }

                               Decision and Order on Motion for Stay

Appellants David A. Sime and Vicki S. Sime appealed from a decision of the Zoning Board of
Adjustment (ZBA) of the City of Rutland, ruling that their attempt to obtain and then to appeal a
Zoning Administrator= s ruling regarding whether Appellee OTT Rutland= s project required
subdivision approval was out of time.

Appellant David A. Sime is an attorney who represents himself and his wife Vicki S. Sime in this
matter; the City is represented by Henry C. Brislin, Esq.; and Appellee OTT Rutland, LLC is
represented by James P.W. Goss, Esq. This appeal was filed at the Court on April 6, 2004; just
before the close of business on Friday, April 30, 2004, Appellants filed their Statement of
Questions on appeal, together with a motion to stay the ongoing construction of the project.
Because of the apparent urgency of the motion for stay, the Court immediately scheduled an in-
person pre-trial conference in Rutland on May 7, 2004. At the conference, the Court determined
that the demolition stage of the project had already occurred, established a schedule for filings
regarding the motion to stay, and discussed the extent to which the other issues in the case could
be presented to the Court by summary judgment or other appropriate motions. Appellee and the
City have responded to the motion to stay; and Appellants have filed their reply. Appellee has
also filed a motion to dismiss and for summary judgment.

The Statement of Questions reflects a number of purported challenges to a zoning bylaw
amendment in October of 2003, as well as the underlying question posed by Appellants to the
Zoning Administrator by their February 17, 2004 letter as to whether the project required a
subdivision permit as well as a zoning or building permit.

The project at issue in the present appeal is proposed for an L-shaped parcel of land formed by
the merger of eight former small parcels of land, seven of which formerly contained houses and
one of which was used for a parking lot. The parcel wraps around an unrelated corner lot (in use
as a gas station and convenience store) at the intersection of two major regional roadways:
Woodstock Avenue (Route 4) and Route 7 (North Main Street). The project parcel has frontage
on the south side of Woodstock Avenue (Route 4), on the east side Route 7 (North Main Street)
and on a smaller street, Norton Place, leading off Route 7 to the south of its intersection with
Woodstock Avenue. Appellants live on the north side of Woodstock Avenue, across from and
slightly to the east of the project parcel.

The project proposes to construct a single building, with its associated site work, including
parking, driveways, landscaping, lighting and signage, to house a commercial retail pharmacy
use. The project parcel is located in a A Business B@ zoning district (rezoned in October 2003
from a "Residential B" zoning district), in which this use is a permitted use not requiring prior
Zoning Board of Adjustment review.

By the time of the filing of the motion for stay, all of the former residential buildings had been
removed from the site. By the time of the May 7, 2004, pretrial conference, site work and
construction of the project was ongoing.
This is a motion for stay under V.R.C.P. 74(c) pending de novo review in the trial court, although
technically Appellants are not seeking a stay of the ZBA= s decision, but rather are seeking to
stop construction until the question of whether the project needs a subdivision permit can be
resolved by the Court. In any event, the Court has jurisdiction under that rule to enter an order
preserving the rights of the parties upon such terms and conditions as are just. To prevail on a
motion for stay under V.R.C.P. 74(c), the moving party must demonstrate all four of the following
factors: a strong likelihood of success on the merits; irreparable injury if the stay is not granted;
that the stay will not substantially harm other parties; and that the stay will serve the best interests
of the public. In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987) (mem.); In re Allied
Power and Light, 132 Vt. 554, 556 (1974).

If the motion to stay is denied, the parties have agreed to a schedule that would put the legal
issues that constitute the merits of this appeal under advisement with the Court in approximately
one month. Therefore the motion to stay construction must be examined in light of the harm that
may occur within that time frame.

We do not consider the harm that has already occurred due to the demolition of the houses. That
harm may be irreparable, but it occurred before the motion for stay was filed in this Court.

We do not consider the harm that may occur from the completed project unless that harm is
irreparable. That harm is not irreparable. In the event that a subdivision permit is determined to
be required for this project, construction could be stopped or occupancy and use of the project
could be suspended until the permit is applied for and ruled on. In the event that a subdivision
permit is determined to be required and is ultimately denied, all of the adverse effects on
Appellants that may be threatened by the traffic, lighting and appearance of the project could be
avoided by requiring all or part of the project to be dismantled. Appellee is now constructing at its
own risk that it may have to tear down some part of the project and/or restore some part of the
property.

The harm to Appellants during the coming month of construction is limited to the temporary
disruption of the relative peace and quiet of the neighborhood due to the ongoing construction
activities on the property.

On the other hand, a stay would cause substantial financial harm to Appellee, given the costs of
construction and Appellee= s contract obligations. If a stay were to be granted, the Court would
have to consider whether a bond should be required to compensate Appellee in the event that a
subdivision permit is not required for this project and a challenge to the October 2003 rezoning
cannot be made in this forum at this time.

Appellants have not shown that a stay of construction during the next month will serve the best
interests of the public. Even assuming that they are correct that the project does not carry out the
City= s plan for this intersection, or that the project will exacerbate the traffic problems at or near
that intersection, these are problems with the project if it is completed and allowed to operate, not
problems due to allowing construction to continue during the next month.

Finally, Appellants= likelihood of success on the merits is high on some issues but not on others.
Appellants= likelihood of success on the merits is high on the issue of whether they can bring the
issue of whether the project requires a subdivision permit before this Court, rather than being
foreclosed from doing so because they did not appeal the November 2003 zoning permit.
However, Appellants= likelihood of success on the merits is not high on the issue of whether the
project needs a subdivision permit or on the issue of whether the City= s actions in the October
2003 rezoning can be brought before this Court at this time.
To succeed on the merits of whether the project requires a subdivision permit, Appellants must
show that it falls within the definition of A subdivision@ in the Rutland subdivision ordinance and
that the ordinance does not exceed the scope of the enabling statute, 24 V.S.A. ' 4401(b)(2). We
examine the subsections of the definition of A subdivision.@ The project does not involve the
division of a parcel of land; rather, it involves a single parcel of land. The fact that the project
parcel was created by merging eight smaller parcels does not appear to bring it within the
definition of subdivision in the Rutland ordinance. Without determining whether the second
subsection is completely within the scope of the enabling statute, that subsection defines by
example of multiple-unit or multiple-building developments on a single parcel of land, such as
condominiums, planned unit developments or planned residential developments, or commercial
or industrial complexes. The project proposes a single retail commercial building on a single
parcel of land, which does not appear to fall within the examples of the second prong of the
definition of A subdivision@ in the Rutland ordinance.

To succeed on the merits of their challenge in this Court to the way the project area was rezoned
in October 2003 from Residential B to Business B, Appellants will first have to show that the
adoption of a zoning amendment by the legislative body of the municipality can be challenged in
court at all, and in this court in particular. The process provided by state statute for the
preparation, adoption, amendment or repeal of zoning bylaws is found in 24 V.S.A. ' ' 4403 and
                               1
4404 as they currently exist .

A proposed amendment to a zoning bylaw may be prepared by the planning commission, '
4403(a), or by any other person or body and submitted to the planning commission. ' 4403(b). If
the proposed amendment is supported by a petition of at least five percent of the voters of the
municipality, then the planning commission is obligated to proceed under ' 4403(c) through (f)
without making any changes other than technical changes; otherwise it has discretion as to
whether to proceed to submit the proposal to the municipality= s legislative body. See In re
Cottrell, 158 Vt. 500, 503 (1992). When considering a bylaw amendment involving a proposal to
alter the zoning designation of any land area, ' 4403(c) states that the planning commission
should prepare a report that should cover five criteria listed in the statute. After holding a public
hearing after public notice on the proposed bylaw amendment, and taking comments, the
planning commission may revise the proposed bylaw amendment and its written report before
submitting them to the legislative body of the municipality for its action to adopt or reject under the
political process of the municipality under ' 4404. That section contains a process (in ' 4404(f) or
(i)) for a petition of five percent of the voters to warn a special municipal meeting to consider such
a bylaw or amendment if it is not acted upon. No specific appeals process equivalent to 24 V.S.A.
' 4471 appears in the statute as a means to obtain court review of a municipality= s political
process under these two sections, or of a Planning Commission= s failure to follow the statutory
procedure before forwarding a proposed zoning change to the municipality= s legislative body. If
it can be challenged under V.R.C.P. 75, then that challenge must be filed in Superior Court under
that rule.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants=
Motion for Stay of Construction is DENIED, without prejudice to its renewal if warranted after the
motions for summary judgment are ruled on by the Court. Appellants= response to Appellee= s
Motion to Dismiss and for Summary Judgment shall be filed so that it is postmarked to the Court
but received by the other parties on or before June 16, 2004; any replies to those filings shall be
filed so that they are received by the Court on or before June 22, 2004. Appellee proceeds with
construction at its own risk.

                                 th
Done at Barre, Vermont, this 19 day of May, 2004.
___________________
Merideth Wright
Environmental Judge




                                           Footnotes

1.
     24 V.S.A. Chapter 117 has been substantially amended in this legislative session in the so-
called Permit Reform bill, H. 175.
