                               STATE OF VERMONT

SUPERIOR COURT                                  ENVIRONMENTAL DIVISION

                                                }
In re Fenoff Accessory Dwelling Application     }      Docket No. 196-9-08 Vtec
In re Fenoff Variance Amendment                 }      Docket No. 32-2-10 Vtec
                                                }
                                                }

           Decision and Order on Town’s Motion for Summary Judgment

      In Docket No. 196-9-08 Vtec, Appellant-Applicants Charles R. Fenoff, Jr. and

Kathy Fenoff (Applicants) appealed from a decision of the Zoning Board of

Adjustment (ZBA) of the Town of Westmore, denying their most recent application

to install an accessory apartment in an accessory building on the same property as

their residence. In Docket No. 32-2-10 Vtec, Applicants appealed from a decision of

the ZBA denying their request for an amendment to the conditions of a variance

granted by the ZBA in 2006. Applicants are represented by Charles D. Hickey, Esq.;

and the Town is represented by John H. Klesch, Esq. Interested party Aline B.

Harter has entered an appearance in both cases representing herself, but has not

taken an active role on the present motion.

      The Town has moved for summary judgment asking the Court to deny

Applicant’s application for an accessory apartment on the basis that there are no

grounds for amending the restrictive conditions of the 2006 variance that allowed

construction of the accessory building. The following facts are undisputed unless

otherwise noted.1


1
  Other than the present cases, the following cases involving this property and these
parties have been filed in this Court. See In re: Fenoff Accessory Dwelling
Application, No. 280-12-06 Vtec; In re: Appeal of Fenoff, 199-9-05 Vtec; In re: Appeal
of Fenoff, 9-1-05 Vtec.

                                          1
Factual and Procedural History

        Applicants own property at the address of 104 Stoney Brook Lane, in the

Town of Westmore. The property is located between Stoney Brook Lane and Stoney

Brook (also known as Doring Brook), a year-round stream. The property is a long,

narrow corner lot that also has frontage at its westerly end on Vermont Route 5A.

The property was originally composed of three undersized lots, which continue to

be referred to in the ZBA decision in this matter as Lots 6, 7, and 8 of a prior

subdivision, although they have long since been deemed to have merged into an

approximately 0.95-acre lot. See In re: Fenoff Accessory Dwelling Application, No.

280-12-06 Vtec, slip op. at 2 (Vt. Envtl. Ct. Mar 19, 2008) (Wright, J.); In re: Variance

Request by Charles and Kathy Fenoff, Findings of Fact and Decision, at 2,

Conclusions ¶ 3 ((Town of Westmore ZBA, August 30, 2005). The lot complies with

the minimum required lot size of 40,000 square feet. 2000 Zoning Bylaw § 204, Table

201.2

        Due to the course of the brook, the property is only approximately thirty feet

wide at its narrowest point. The northerly end of the property contains an existing

house (the house), connected to an existing mound-type wastewater system to the

north of the house.     The southerly end of the property contains the accessory

building at issue in the present appeal, at an elevation approximately 18 feet below

that of the house. The accessory building is used as a garage and storage building

under the terms of a variance issued by the ZBA in April of 2006.

        In September of 2004, Applicants applied for a zoning permit for construction

of the accessory building, described in the application as a 28’ x 36’ wood building


2
  Two versions of the Zoning Bylaw were applicable to the various iterations of
Applicants’ project, one adopted in 2000 and another adopted in 2006. Unless
otherwise specifically stated, as here, references to the Zoning Bylaw refer to the
2006 Zoning Bylaw.

                                           2
on a concrete slab, with a separate in-ground wastewater system to serve the

accessory building. The building was proposed for use as a garage downstairs and

an apartment dwelling unit upstairs.

      Applicants proceeded to construct the building before they had received a

ruling on their application from the Zoning Administrator. The application had

been denied on September 28, 2004, but had not then been communicated in writing

to Applicants. The accessory building is located 24¼ feet from the Stoney Brook

Lane right-of-way, and is located from 24½ to 43 feet from the brook.            The

wastewater system was constructed within 100 feet of the high water level of the

brook. The Zoning Administrator issued a Notice of Violation on October 22, 2004,

which Applicants appealed to the ZBA.

      The ZBA upheld the Notice of Violation in December 2004 for failure of the

accessory building to comply with the required setbacks from the road and the

brook.3 The decision noted that the building was within the setbacks for both the

right-of-way and the brook, but did not state any problems regarding the separate

septic system proposed to serve the apartment, or that septic system’s setback from

the brook.4 No enforcement case was brought against Applicants, based on the

Notice of Violation, for having constructed the building without first having

obtained a zoning permit. Applicants appealed the ZBA’s decision on the Notice of

Violation to this Court in Docket No. 9-1-05 Vtec.


3 The required setbacks from the road and from the brook are identical in both the
2000 and 2006 Zoning Bylaws, but are stated in differently-numbered sections.
Those required setbacks are 25 feet from the road right-of-way, 2006 Zoning Bylaw
§ 204, Table 201; 2000 Zoning Bylaw § 204, Table 201 (regarding shoreline lots); and
50 feet from the mean water line of the brook. 2006 Zoning Bylaw § 316.1(A)(b); 2000
Zoning Bylaw § 315.1(A)(2).
4  The required setback for subsurface wastewater systems of 100 feet from the
brook, as well as other required characteristics of septic systems in relation to the
brook, are found in 2006 Zoning Bylaw § 316.3; 2000 Zoning Bylaw § 315.3.

                                          3
       That appeal was placed on inactive status to allow Applicants to apply for a

variance from the setback requirements for the proposed building as a garage and

accessory dwelling unit. The ZBA denied the variance application on August 30,

2005, on the basis that the building was located so close to the public right-of-way as

to constitute a detriment to the public welfare. Variance Request by Charles and

Kathy Fenoff, Findings of Fact and Decision, at 2, Conclusions ¶ 7 (August 30, 2005).

Applicants appealed the ZBA’s denial of the 2005 variance to this Court in Docket

No. 199-9-05 Vtec. Based on newly-discovered information about the width of the

Stoney Brook Lane right-of-way, both the variance appeal (No. 199-9-05 Vtec) and

the zoning permit appeal (No. 9-1-05 Vtec) were later remanded to the ZBA.

       On April 7, 2006, the ZBA granted a variance for the as-built construction of

the accessory building. However, the ZBA granted the variance for the accessory

building only as a garage/storage building, imposing conditions that the structure

was to be used solely as a garage/storage building, that it could not be used for

living quarters, that it was not to be served by a water supply or toilet facilities, and

that the as-built wastewater disposal system was to be disconnected and the septic

tank removed. By conditioning the grant of the variance on the use of the building

only as a garage and for storage, and by requiring the septic tank to be removed, the

ZBA effectively denied the variance for the accessory dwelling unit, for the

following reason:

       The ZBA concludes that the wastewater system constructed in . . .
       2004 . . . is not in conformance with Section 315.3 of the Westmore
       Zoning Bylaw in that it is less than 100 feet from the high water level
       of Doring Brook also known as Stoney Brook. For this reason, the ZBA
       concludes that an accessory dwelling unit requiring water and sewer
       disposal systems should not be permitted on Lot #8.
In re: Variance Request by Charles and Kathy Fenoff, Findings of Fact and Decision,

at 2, Conclusions ¶ 5 (Town of Westmore ZBA April 7, 2006) (2006 Variance


                                           4
Decision).

       In the 2006 Variance Decision, the ZBA thus denied the dwelling unit in the

accessory building solely for the reason that the separate wastewater disposal

system serving it was too close to the brook. The 2006 Variance Decision was not

appealed and became final.        24 V.S.A. § 4472(d).5      Applicants subsequently

disconnected and removed the wastewater system that had been installed to serve

the accessory building.

       Since September 1, 2005, the state zoning enabling statute has required towns

to allow accessory dwelling units within or appurtenant to owner-occupied, single-

family dwellings, as long as the property has sufficient wastewater capacity, the

accessory dwelling unit does not exceed 30 percent of the total habitable area of the

single family dwelling, and the applicable setback, coverage, and parking

requirements in the town bylaws are met. 2003, No. 115 (Adj. Sess.), § 95; 24 V.S.A.

§ 4412(1)(E). That statute also specifically allows municipalities to be less restrictive

of such accessory dwelling units than the state statute, and to require conditional

use review for accessory dwelling units in certain circumstances. 24 V.S.A.

§ 4412(1)(F).6

       The Town’s Zoning Bylaw was amended, effective June 27, 2006, to provide

for such accessory dwelling units. Section 319.1 allows the Zoning Administrator to

approve an accessory dwelling unit that is appurtenant to an owner-occupied



5  The present application seeks to amend the conditions of the 2006 Variance
Decision to allow the proposed dwelling unit to be installed in the accessory
building, proposing to connect it to the existing wastewater system already serving
the house on the northerly portion of the property.
6
  Effective July 1, 2004, the state zoning enabling statute also added authorization,
codified at 24 V.S.A. § 4414(8), for towns to adopt bylaws allowing waivers to reduce
dimensional requirements under certain circumstances; no such waiver provisions
have been adopted by the Town.

                                           5
single-family dwelling as a permitted use. Section 319.1, requires that the property

have sufficient wastewater capacity, that the unit not exceed 30 percent of the living

area in the single family dwelling, and that all setback, coverage, and parking

requirements in the Zoning Bylaw be satisfied.       However, if such an accessory

dwelling unit involves “[c]onversion of an existing structure which does not meet

the setback requirements of these bylaws,” it must receive conditional use approval

from the ZBA. Zoning Bylaw § 319.2(4). Similarly, if a new structure is proposed

for such an accessory dwelling unit, conditional use approval is required. Id.,

§ 319.2(1).

       In August of 2006, Applicants applied under these new provisions to install

the upstairs apartment in the accessory building as an accessory dwelling unit. They

applied for it as a permitted use under § 319.1, but recognized that the application

might instead require conditional use approval under § 319.2. The August 2006

application proposed a new mound-type wastewater system to be located closer

than 25 feet to Stoney Brook Road. The ZBA denied this application in November of

2006 because the mound septic system failed to meet the required setback from the

road for a structure, as well as because the building failed to meet the required

setbacks from the road and from the brook.

       In its decision, the ZBA specifically stated that the 2006 Variance allowing the

as-built construction of the building had only authorized the storage and garage use

of the building, which it characterized as a “less intense use” than the requested

accessory dwelling unit. Applicants appealed the November 2006 ZBA decision to

this Court in Docket No. 280-12-06 Vtec. The Court issued a decision on summary

judgment in that appeal, as to whether a mound-type wastewater system was a

“structure” subject to the setback requirements of the ordinance.7


7   That decision was later vacated and the appeal dismissed by agreement of the

                                          6
      On June 2, 2008, Applicants applied for conditional use approval of the

proposed accessory dwelling unit in the accessory building, this time proposing to

connect the apartment to the existing waste disposal system serving the existing

house on the property. The current proposal does not propose any septic tank or

wastewater disposal field (either underground or mound-type) near the accessory

building.   Rather, it proposes an underground sewer pump station near the

accessory building to pump the wastewater generated by the apartment upgradient

to the existing septic tank at the house, from which it would be pumped, together

with the wastewater generated by the house, by an existing pump station to the

existing mound system northerly of the house.

      On August 20, 2008, the ZBA denied the application under the successive

application doctrine, stating that the changes proposed in the current application

were not substantial enough to distinguish it from the application which had been

the subject of the 2006 Variance Decision. Although it declined to reach the merits of

the application, the ZBA went on to analyze the application under § 319 of the

Zoning Bylaw, treating it as an application for a new accessory structure under

§ 319.2(1) rather than under § 319.2(4) as conversion of an existing structure which

does not meet the setback requirements of the Zoning Bylaw. Under the conditional

use criteria of § 203.1, the ZBA concluded that there would be no undue adverse

impact under four of the five conditional use criteria, but that it would not meet

§ 203.1(D) because the accessory building does not meet the applicable setbacks.

Applicants appealed the ZBA’s August 2008 decision to this Court, which ruled on

summary judgment that, while the scope of that appeal included the merits of their

application as well as whether the application differed sufficiently from the previous

ones to be considered, the Court could not consider the merits of the application



parties on January 16, 2009.

                                          7
until and unless the ZBA (or this Court in a de novo appeal) had amended the

conditions of the 2006 Variance that preclude the use of the structure as a dwelling

unit. In re Fenoff Accessory Dwelling Unit, No. 196-9-08 Vtec (Vt. Envtl. Ct. Sept. 3,

2009) (Wright, J.). The conditional use application in Docket No. 196-8-08 Vtec was

then placed on inactive status pending Applicants’ application to the ZBA to amend

the conditions of the 2006 Variance Decision.

       On October 26, 2009 Applicants filed the present application, requesting the

ZBA to amend the conditions of the 2006 Variance to eliminate conditions 1, 2, and 3

prohibiting the use of the building for living quarters served by a water supply. The

ZBA denied the amendment under the Stowe Club Highlands doctrine, made

applicable to municipal land use permits by In re Hildebrand, 2007 VT 5, ¶ 7, 181 Vt.

568, on the basis that none of the three types of changes warranting amendment of a

land use permit is present in this instance. The ZBA’s denial of the amendment is

the subject of Docket No. 32-2-10 Vtec.



Motion for Summary Judgment

       The Town has moved for summary judgment that there are no grounds for

amending the restrictive conditions of the 2006 Variance Decision.        A grant of

“summary judgment is appropriate when, giving the benefit of all reasonable doubts

and inferences to the nonmoving party, there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law.”            Gade v.

Chittenden Solid Waste Dist., 2009 VT 107, ¶ 7 (citing Mooney v. Town of Stowe,

2008 VT 19, ¶ 5, 183 Vt. 600 (mem.); V.R.C.P. 56(c)).

       Both parties’ arguments have to some extent conflated the analysis

appropriate to whether an applicant who is granted a final permit may apply to

amend its conditions, with the analysis appropriate to whether an applicant who is

denied a permit may file a successive application. Both analyses are founded in the

                                           8
principles favoring finality in municipal land use decisions, but allowing flexibility

in appropriate circumstances. Hildebrand, 2007 VT 5, ¶¶ 11, 12 (citing 24 V.S.A.

§ 4472; In re Dep’t of Bldgs. and Gen. Servs., 2003 VT 92, ¶ 21, 176 Vt. 41; In re

Nehemiah Associates, Inc. (Nehemiah II), 168 Vt. 288, 294 (1998)).

      Once a granted permit becomes final, its conditions may not be challenged,

but they may be amended in appropriate circumstances. Hildebrand, 2007 VT 5,

¶¶ 11, 12. In Hildebrand, the Supreme Court approved the use in municipal cases of

the standards for such amendments applied under Act 250, as laid out in In re Stowe

Club Highlands, 166 Vt. 33 (1996); Nehemiah II, 168 Vt. 288 (1998). Consideration of

an amendment application may be justified based on “. . . changes in factual or

regulatory circumstances beyond the control of a permittee; . . . changes in the

construction or operation of the permittee’s project, not reasonably foreseeable at the

time the permit was issued; or . . . changes in technology.” Hildebrand, 2007 VT 5,

¶ 7 (citing Stowe Club Highlands, 166 Vt. at 38). Even if one of these types of

changes is present, an amendment may nevertheless not be justified, for example, if

the change “was reasonably foreseeable at the time of permit application.”

Hildebrand, 2007 VT 5, ¶ 7 (citing Nehemiah II, 168 Vt. at 294).

      Similarly, if a municipal land use permit application is denied, an applicant

may only submit a successive application if some “substantial change of conditions

[has] occurred or other considerations materially affecting the merits of the request”

have occurred after the denial, such as if “the application has been substantially

changed so as to respond to objections raised [to] the original application” or if the

applicant proposes to comply with additional conditions or limitations that the

municipal panel or court “is empowered to impose.” In re Jolley Associates, 2006

VT 132, ¶ 12, 181 Vt. 190 (citing In re Application of Carrier, 155 Vt. 152, 158-59

(1990) (decided under prior law)); In re Armitage, 2006 VT 113, ¶ 8, 181 Vt. 241. A

substantial change in conditions can also occur due to “a change in the physical

                                          9
surroundings of the property, or a change in the governing regulations.” In re: R.L.

Vallee PUD, No. 100-5-07, slip op. at 4 (Vt. Envtl. Ct. Aug. 17, 2007) (Wright, J.)

(internal citations omitted). This doctrine allows the land use process to be flexible

enough when reviewing subsequent land use applications for the same parcel to

accommodate changes in circumstances while respecting the finality of prior

decisions. See In re McGrew, 2009 VT 44, ¶ 11, 186 Vt. 37 (citing In re Dunkin

Donuts S.P. Approval, 2008 VT 139, ¶ 9, 185 Vt. 583).

      A successive application must be a significant change that directly addresses

all of the negative findings in the previous decision. Armitage, 2006 VT 113, ¶¶ 9, 10

(consideration of successive application foreclosed because applicants failed to

modify proposal to address concerns about traffic flow that were part of the basis for

the rejection of the prior application); compare In re Roderiques Variance

Application, 212-9-08 Vtec, slip op. at 8 (Vt. Envtl. Ct. Apr. 27, 2010) (Durkin, J.)

(successive application allowed because it realigned proposed accessory structure to

minimize the side yard variances that had been the basis of the prior application’s

rejection). The change must be more than merely the presentation of additional

evidence in support of the proposal contained in the original application.        See

McGrew, 2009 VT 44, ¶ 13, 186 Vt. 37.

      With respect to whether Applicants are entitled to have their successive

application for approval of an accessory dwelling unit in the accessory building

considered on its merits, this Court’s September 3, 2009 decision in Fenoff Accessory

Dwelling Unit, No. 196-9-08 Vtec, slip op. at 5–6, determined that the merits of the

successive application may be presented to the Court, for two reasons. First, the

Zoning Bylaw applicable to accessory dwelling units was amended after the 2006

Variance Decision, and now allow applications such as this one to apply for

conditional use approval. Second, the current application addresses the only reason

for which the 2006 Variance was denied for the accessory dwelling unit—that the

                                         10
septic system serving the accessory apartment was located too close to the brook—

by proposing to connect the accessory apartment instead to the wastewater system

serving the house.     The merits of whether the current application meets the

requirements of § 319 and the standards for conditional use approval remain for trial

in this matter.

       The present motion focuses on whether circumstances have changed

sufficiently to allow the ZBA, and hence this Court in this de novo appeal, to

consider amending the conditions of the 2006 Variance granted for the as-built

accessory building.8

       The Stowe Club Highlands test requires the Court to assess whether, since the

2006 Variance was issued, there have been any changes in factual or regulatory

circumstances beyond Applicants’ control.       Although there have not been any

changes in the factual circumstances of the property or of the adjacent roadways or

brook since the April 7, 2006 Variance Decision, there was an important change in

the regulatory circumstances applicable to this property.       Effective after that

decision, on June 27, 2006, the Town adopted a change in its Zoning Bylaw not only

allowing an accessory dwelling unit to be located in or adjacent to a single family

dwelling as a permitted use if the building meets all the setback and other

dimensional requirements of the Zoning Bylaw, § 319.1, but also allowing for

conditional use approval of accessory apartments in existing buildings that do not

comply with setback requirements, and for conditional use approval of accessory

apartments in new buildings. § 319.2(1), (4).


8 Of the three considerations in the Stowe Club Highlands test, as applied to
municipal land use decisions by Hildebrand, Applicants have presented no evidence
or arguments that any change in technology is the basis for their application to
amend the conditions of the 2006 Variance. Accordingly, summary judgment must
be granted to the Town, dismissing Question 3 of the Statement of Questions in
Docket No. 32-2-10 Vtec.

                                         11
      The Town argues that the new regulation was not meant to allow accessory

apartments in existing structures nonconforming as to setbacks if the structure had

been allowed by variance rather than simply predating the setback regulations.

However, the language of the new regulation is not so limited. Rather, the plain

language of § 319.2(4) allows Applicants to apply for conditional use approval of the

accessory apartment. This is a regulatory change from the situation that existed at

the time of the 2006 Variance Decision, sufficient to allow Applicants to apply to

amend the conditions imposed in that variance.

      The Town argues that, had the new regulation allowing conditional use

approval of an accessory apartment in a new building existed at the time of the 2006

Variance Decision, it would not have changed the limitations imposed in the

Variance Decision, because the accessory building itself did not meet the required

setbacks for a building. However, the 2006 Variance Decision allowed the building

despite its failure to meet the setbacks; it was only the accessory apartment that was

denied, and that denial was based only on the failure of the proposed septic system

for the apartment not meeting its required setbacks.

      The Town also argues that the change to the Zoning Bylaw is insufficient to

justify an amendment of the 2006 Variance because the 2006 Variance was wrongly

issued, that is, the Town argues that the accessory structure was not eligible for a

variance, as it was not necessary to enable a reasonable use of the property as a

whole, which already contained a residence. However, even if it was erroneously

granted, the 2006 Variance has long since become final without appeal, and its

validity can no longer be challenged. 24 V.S.A. § 4472(d); City of South Burlington

v. Department of Corrections, 171 Vt. 587, 588-89 (2000) (determining that 24 V.S.A.

§ 4472(d) prevents any sort of collateral attack on a zoning decision that has not been

properly appealed). As such, all that is at issue in the present case is whether its

conditions 1, 2, and 3 should be amended or deleted.

                                          12
      The Town suggests that allowing the proposed amendment to the 2006

Variance would violate 24 V.S.A. § 4469(a)(5), because the amended variance would

no longer represent “the least deviation possible from the zoning regulations.”

However, that is a factual issue for the merits of the proposed amendment. All that

is at issue in the present motion is whether the Court should reach the merits of

Applicants’ application to amend the 2006 Variance.

      The Stowe Club Highlands test also requires the Court to assess whether,

since the 2006 Variance was issued, there have been any changes in the construction

or operation of Applicants’ project not reasonably foreseeable at the time the

variance was granted that allowed the accessory building but denied the accessory

apartment in that building.

      As discussed above and in the September 3, 2009 Decision and Order in

Docket No. 196-9-08 Vtec, in the context of municipal zoning permits, an applicant

may submit a successive application if it addresses the reasons for which the initial

application was denied. See Armitage, 2006 VT 113, ¶ 4; see also 24 V.S.A. § 4470(a).

The change in the sewage system for the proposed accessory apartment connecting

it to the existing wastewater disposal system for the existing house on the property

is a change in Applicant’s project that was not reasonably foreseeable at the time of

the application for the 2006 Variance. Not until Applicant’s proposal had been twice

denied, as proposed with two different separate wastewater disposal systems, was

the proposal developed to connect the accessory apartment instead to the

wastewater system serving the house.

      The requirement articulated under Stowe Club Highlands that the change not

be reasonably foreseeable referred in that case to whether it was reasonably

foreseeable that minor changes to a major development might result from

contractual or financial constraints requiring part of the project to be modified

slightly, downsized or eliminated. See Stowe Club Highlands, 166 Vt. at 39. If the

                                         13
submission of revised zoning applications to address the reason why a previous

application was denied is considered as always being foreseeable under this test,

applicants would never be able to have a successive application considered. It is

unreasonable to expect applicants to foresee that an application submitted in good

faith will be denied by the ZBA, so as to require them to anticipate and address the

reasons for that denial, prior to the ZBA’s decision. Rather, applicants are allowed

to redesign their projects after a denial to try to remedy the problems that resulted in

the denial, as recognized by the continued development of the successive

application doctrine since Stowe Club Highlands was decided. See e.g. Armitage,

2006 VT 113; Jolley Associates, 2006 VT 132; Hildebrand, 2007 VT 5; McGrew, 2009

VT 44.

          In the present case, the current proposal connects the proposed accessory

dwelling unit to the pre-existing wastewater system already serving the existing

house. This change to the design eliminates the separate wastewater system that

was too close to the brook in the 2006 proposal, which was the reason for which the

2006 Variance was denied for the apartment although it was granted for the

accessory building.    The current proposal also eliminates an alternative mound

system that was too close to the road, addressing the reason for which the August

2006 proposal was denied. The present application is Applicants’ second effort to

address the reasons for which the ZBA imposed the conditions in the 2006 Variance

prohibiting the accessory building’s use as a dwelling unit.

         Both because there was a change in regulatory circumstances beyond the

control of Applicants since the issuance of the 2006 Variance, and because there was

a change in the proposed construction of the project not reasonably foreseeable at

the time the 2006 Variance was granted, the ZBA, and hence this Court, may

consider the merits of Applicants’ proposed amendment to the 2006 Variance

Decision.

                                          14
      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that in Docket No. 32-2-10 Vtec summary judgment is GRANTED in Part to the

Town, dismissing Question 3 of the Statement of Questions; and is GRANTED in

Part to Applicants, in that circumstances have changed sufficiently for the ZBA, and

hence this Court, to consider the merits of Applicants’ application to amend the

conditions of the 2006 Variance. In Docket No. 32-2-10 Vtec, summary judgment is

otherwise DENIED in that material facts remain in dispute for trial as to the merits

of the variance amendment. Similarly, in Docket No. 196-9-08 Vtec, as determined

in the Court’s September 3, 2009 Decision on summary judgment, material facts

remain for trial as to the merits of the conditional use application for the accessory

apartment, under § 319 and the conditional use standards in the Zoning Bylaw,

including whether the proposal falls under § 319.2(1) or § 319.2(4).

      The parties should be prepared to discuss in the scheduled telephone

conference (see enclosed notice) the length of time needed for trial of the merits of

the conditional use application and the variance amendment.



      Done at Berlin, Vermont, this 27th day of December, 2010.




                           _______________________________________________
                                 Merideth Wright
                                 Environmental Judge




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