 

M/.\R 2 1'2012

State of Vermont -
VERMONT

 

 

 

 

 

 

 

 

Superior Court- Environmental Division
SUPER|OR COURT
ENVIRONMENTAL DIVlSlCN `
ENTRY REGARDING MOTI()N
In re NVe Conditional Use Permit Docket No 75-4-09 Vtec

 

(Appeal from Town of Ferrisburgh Zoning Board of Appeals decision)

Title: Motion for Summary ]udgment (Filing No., 5)
Filed: September 21, 2011
Filed By: Appellant Steve Lowther

Response: None

_ Granted __)_(_ Denied __Other

_ Steve Lowther (”Neighbor”) has filed a motion seeking summary judgment on
Question 1 of hi.s Statement of Questions: ”Whether there was proper public notice of the
subject conditional use application?” Neighbor alleges that notice for the Town of Ferrisburgh
Zonin_g Board of A-ppeals' (”the ZBA”) April 1, 2009 hearing on Edythe Nye’ s (”Applicant”)
zoning permit application W_as materially defective and that remand to the ZBA for a properly
noticed hearing is required. Neither Appli_cant nor any other party appearing in this matter has
filed a response to Neighbor’ s motion.

We will only grant a party’ s request for summary judgment evenif it is unopposed, if
the party shoWs, with ”pleadings, depositions, answers `to interrogatories,' and admissions on
file, together with the affidavits, if any, referred to in the statements [of material facts] required
by Rule 56(c)(2 ), ” that ”there is no genuine issue as to any material fact" and that the party is

”entitled to judgment as a matter of law. " V. R. C. P. 56(c)(3) (2011) (amended ]an 23, 2011)1; see
'V.R.E.C.P. 3. We apply this standard When considering Neighbor’ s unopposed motion and the
factual allegations included in his statement of material facts

Procedural History

The following procedural history and facts are undisputed On October 29, 2008,
'Applicant applied for a zoning permit for a ”Home occupation or Accessory use 'B’”
(Application '#08-099) to use part of a garage for a Woodworl<ing shop. Neighbor received
Written notice that a public hearing on the application would be held by the ZBA on December
3, 2008. On December 3, 2008, the ZBA opened a public hearing on _Application #08-099,
Neighbor did not attend the meeting, but he submitted a letter expressing his concerns about

 

1 An updated version of V.R.C.P.~ 56 took effect on ]anuary 23, 2010. However, we analyze the pending
motions under the previous version of the rule because that version Was in effect at the time the motions
Were filed.~ In any case, the new version of Rule 56 incorporates the familiar standard for granting
summary judgment from former V.R.C.P. 56(€). See Reporter’s Notes-Z()lZ Amendment, V.R.C.P. 56.

Nye Conditional Use Permi‘t No. 75-4-09 Vtec (EO on Motionfor Summary Judgment) Pg. 2 of 4

the application that the ZBA Chair read-aloud during the meeting The meeting minutes reflect
that at the end of the meeting it was announced that the hearing was recessed until February 3,
2009,

The actual date of the continued hearing was February 4, 2009.. Applicant did not attend
the February 4, 2009 meeting of the ZBA, and it was announced that the hearing on Application
#08-099 was again recessed and would be continued on l\/larch 4, 2009 at 7:00 pm. '

By a letter to the Town of Ferrisburgh Zoning Adminisu'ator (”the'ZA") dated l\/larch 4,
2009, Applicant asked to withdraw Application #08-099, stating that she would file a new
application Nonetheless; Applicant participated in the continued hearing for Application #08-
099 that same evening (l\/larch 4, 2009). Neighbor also attended the meeting lie provided
comments on Applicant’s proposed use, presented a copy of a property survey, and read a
letter from lanuary 1-9, 2009 that he had sent to. the ZA. The meeting minutes reflect that-after
taking public comments on Application #08-099, the ZBA Chai`r announced that the hearing
was recessed until April l, 2009 at 7:05 pm. _

On March 16, 2009, notice was published in the Addison Countv lndependent of a
» public ZBA hearing to be held /'Wednesday, April ll, 2009.”2 lt stated that the ZBA 'Would
consider, among other applications, ”[a]pplication #09-011 by Edyth Nye for an Accessory Use
'B’ of her detached garage as a Woodworking shop under the.provisions of Article lX Section 9.4
of the Town of Ferrisburgh Zoning Bylaws" and that the subject property ”is inthe Rural`
Agricultural RA 5 Zoning District and is located at 474 Echo Road, 'Parcel' lD #11-01-07.”
(Appellant’s Mot. for Summ. ]., Ex. 7, filed September 21, 2011.) The published notice indicated
. that the application was available for inspection at the Town Clerl<’s Office and that
participation in the,hearing was a prerequisite to the right to appeal E. On March 23, 2009,‘
Applicant filed Application #09-011. Application #09~011 sought conditional use approval for
the same use-”Home occupation or Accessory use 'B’”-on the same property as the
application that Applicant had asked to withdraw, Application #08~099. '

On Wednesday, April 1, 2009, the ZBA Chair opened the public hearing on` Application
#09-011. . Neighbor provided comments during the hearing. The Chair closed the hearing the
same day, and the ZBA voted to approve the application3 Nei_ghbor thereafter appealed the
-ZBA’_s decision to this Court and sought summary judgment on the question of Whether the
notice for the April 1, 2009 hearing was adequate - ' ' "

Analy' sis

A municipal panel is required to hold public hearings on conditional use applications
24 V.S.A. § 4464(a)(l). Notice of such hearings must be published in a newspaper, be posted in_
' three or more public places, and include information about the date, place, and purpose of the
hearing'. l_d_. Written notification must also be provided both to the applicant and to
landowners With property adjoining the subject property. _l_d_. Subsequent days of a hearing

 

2 April ll, 2009 Was, in fact, a Saturday. The actual date of the continued hearing was April 1, 2009,

3 Following the ZBA's announcement of its decision, Neighbor asked for the meeting minutes to reflect
that the adjoining landowners had not received notification of the public hearing The Chair replied that
the ZA had warned the hearing The meeting minutes from April l, 2009 reflect this exchange

Nye Condz`tional Use Permz't, No. 75-4-09 Vtec (EO on Motz'on for Summary .]ua'gment) Pg. 3 of 4

that spans more than one day, however, do not require separate notice if the time and place for
days of the continued hearing are announced before adjournment of each hearing day. See 1
V.S.A. § 312(€)(4) (”Any adjourned meeting shall be considered a new meeting, unless the time
and place for the adjourned meeting is announced before the meeting adjourns."); lnie_
McEwing Svcs.! LLC, 2004 VT 53, il 17, 177 Vt. 38 (stating that a municipal panel can ”continue
[a] hearing and reconvene it at a later date, as long as it announces at adjournment the time and
place where the hearing will be reconvened.”); see also Woodstock Comm. Trust, lnc., and -
Housing Vt. Planned Unit Dev., No. 263~11-06, slip op. at 15-16 (Vt. Envtl. Ct. May 10, 2007)
(Wright, ].) (concluding that adjoining landowners Were not entitled to receive separate notice
for a continued hearing when the time and place for the subsequent day of hearing was
announced during a prior day of hearing).

'Although Neighbor argues that the published notice for the April 1, 2009 hearing fails to
meet the requirements of 24 V.S.A. § 4464(a)(1), we conclude that separate notice Was not
necessary for that day of the hearing rl`he April 1, 2009 ”hearing”t was not a separate hearing
but was instead effectively a continuation of the hearing that began on December 3, 2008. We
reach this conclusion for the following two reasons

First, While they have different numbers, Applications #08-099 ,and#09-011 are
essentially the same application The two applications Were submitted by the same applicant
and they seek the same permit for the same use on the same property. The only difference is
that Application #09-011 includes additional minor details, such as noting the zoning district,
the parcel size, and the deed reference, that are not included in Application #08-099. The ZBA
also appears to have considered the applications to be the same. The ZBA’s announcement on
' April 1, 2009 that it was considering Application #09-011 Was a formality. T.he ZBA took into
account information gathered in connection with Application #08-099-in particular a site
inspection and decibel testing for noise concerns-when issuing its decision on Application
#09~011. (See Appellant’s Mot. for Summ. l., Ex. 9, filed September 21, 2011.)

Second, Neighbor, and anyone else in attendance at the l\/larch 4, 2009 day of hearing for

, Application #08-0899, Was given notice that the hearing would be continued on April 1, 2009 at '
7 :05 pm. Although the meeting minutes do not reflect that the ZBA Chair explicitly indicated
that the continued hearing Would take place in the same location, We understand that the
location Was implied Neighbor does not assert that this notice for recessing and continuing the
hearing Was inadequate; nor does he argue that the Written notice he received for the initial day
of hearing, December 3, 2008, was insufficient Thus, under the guidance of 1 V.S.A. § 312(c)'(4),
we regard these notices, in combination, to have provided adequate notice for the April 1, 2009

day of hearing.4

 

4 Although We conclude that the notice for the April 1, 2009 day of hearing was adequate, we caution the
ZBA that defects in notice are to be taken seriously and that those defects that make a posting or notice 7
”materially misleading in content" require remand See 24 V.S.A. § 4464(a)(5). Here, if the only notice for
the April 1, 2009 day of hearing Was the notice published in the Addison Countv lndependent, we would
not conclude that its typographical error (listing the date for the hearing as April 11, 2009 instead of April
1, 2009) is such a defect April 11, 2009 was a Saturday, and a reasonable`person Would inquire With the .
Town as to Whether the date was correct or was a typographical error. However, we encourage the ZBA
to take greater care When announcing public hearing dates. '

Nze Conditz'onal Use Permz`t No. 75-4-09 Vtec (EO on Moz‘ion for Summa)y Jua"gment) Pg 4 of 4

' We also note that the meeting minutes for the April 1, 2009 day of hearing reflect that
Neighbor actually attended the meeting and provided public comments regarding Applicant's
proposed use. (See Appellant’s Mot. for Summ. ]., EX. 9, filed September 21, 2011.) The purpose
of the notice provisions is to inform interested persons of a proposed action and to give them a
reasonable opportunity to express their support or opposition See Town of Mendon V. Ezzo,
129 Vt. 351, 357-58 (1971) (interpreting a previous version of 24 V.S.A. § 4464(a), formerly
codified as 24 V.S.A. § 4447). Despite Neighbor’s argument that the notice for the meeting on
April 1, 2009 Was inadequate, he was informed about Applicant’s proposal and he took
advantage of the opportunity to provide comments on that proposal during the meeting

Conclusion '

Because Neighbor’s factual allegations, and his supporting affidavit and exhibits ,' show
that he is not entitled to judgment as a matter of law on Question 1, we must DENY Neighbor’s
motion. ` ‘ ~' ~

Pursuant to the September 27, 2011 Entry Order We issued in this matter, the matter was
placed on inactive status pending resolution of a related Superior Court matter in the Addison
Unit of the Civil Division, Docl<et' No. 212-8~10 Ancv. During the October 17l 2011
Environmental Division status conference, the parties requested that Neighbor’s motion for
summary judgment be considered and decided. rl`hus, the Court now directs Applicant to, on
or before April 5, 2012, provide a status report to the Court, in writing, regarding the Civil
Division matter. ' ' . ' 1 '

/ UWI g - . March 21,20:12
Thomas G_. Walsh, judge Date `

Date copies sent to: . 5;‘@2{§/£ Clerk‘s Initials£/é@

Copies sent to: .
Appellant Steve Lowther, pro se
Robert ]. Kaplan, Attorney for Appellee Edythe Nye
lnterested Person Dylan Griffin `

