                         STATE OF VERMONT

                       ENVIRONMENTAL COURT

         In re: Appeal of Howard    }
         Bushey and Craig Rich      }
                                      Docket No. 283-12-00
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                                      Vtec
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  Decision and Order on Appellants= Motion for Summary Judgment

Appellants Howard Bushey and Craig Rich appealed from a decision of
the Development Review Board (DRB) of the Town of St. Albans
denying their application for a zoning permit to add a motor vehicle
repair shop with a state inspection station to other uses conducted in
two existing buildings on their property. Appellants are represented by
Jesse D. Bugbee, Esq.; the Town is represented by David A. Barra,
Esq.

The Court expected the parties to move for summary judgment on
Questions 1 through 4 of the Statement of Questions. Instead,
Appellants have moved for summary judgment on Question 3 and 5:
whether their application should be deemed to have been approved
due to the following asserted procedural defects in the DRB= s
proceedings: (Q. 3) where the DRB heard new evidence during an
executive session; and (Q. 5) where the DRB voted in favor of the
application, orally communicated the outcome to Appellants, and later
voted against the application and issued a written decision. Questions
1, 2 and 4 addressed whether the property is in a residential1 zone;
whether the property was formerly in a commercial zone and, if so,
whether the zoning bylaws were validly amended to change the zoning
district; and whether the ZBA chair, who cast a deciding vote, should
have recused himself.

The following facts are undisputed unless otherwise noted.

Appellants own property (sometimes referred to as A Lot 6 of the
Summit Place Subdivision@ ) on Route 105 in one or more residential2
zoning districts of the Town of St. Albans. The lot contains two
commercial buildings constructed by a prior owner. A Building 1,@
closest to the road, was constructed in 1980 and has been rented to
various business tenants over the years. A Building 2,@ constructed in
1979, has always been occupied by Franklin Rental and Sales, Inc. Up
to the fall of 2000, the tenants of these buildings had changed over
time and had included a pet supply store and grooming business, a
farm and garden supply store, a glass shop, office space, a
landscaping contractor, and furniture sales, as well as the Franklin
Rental and Sales business.3

Appellants appear to have applied to the DRB for approval of the
existing uses4, as well as for approval of a motor vehicle repair shop
with inspection station, then in the process of moving into Building 1.
The ZBA held a public hearing on both applications on October 24,
2000, at which it took evidence and had extensive public discussion,
went into deliberative session, and voted to approve both applications.
The Zoning Administrator orally notified Appellants of the favorable
votes on the following day.

On November 14, 2000, prompted by a motion from one board
member, the DRB voted to reopen discussion on both applications. The
November 14, 2000 hearing was not warned for this purpose.
Appellants were not advised that their application would be on the
agenda, and were not present. The DRB did invite Appellant Bushey to
appear at the next scheduled meeting on November 28, 2000, at
which the reopened discussion was to take place. The parties have not
provided a copy of the warning for the November 28, 2000 meeting;
their arguments assume that it did not mention that this reopened
matter would be on the agenda.

On November 28, 2000, the reopened discussion took place entirely in
deliberative session. Mr. Bushey was present; if evidence was taken
from him it does not appear in the minutes. The minutes do not reveal
whether the neighbor and opponent of the proposed applications who
appeared at the October 24, 2000 hearing received any individual
notice of the November 28, 2000 hearing or presented any evidence at
it; we assume for the purposes of this analysis that he did not. The
DRB again voted to approve the existing uses, but voted to deny the
application for the motor vehicle repair shop and inspection station.

On December 1, 2000, the DRB issued its written decision denying the
motor vehicle repair shop application, and Appellants filed this appeal.

Appellants argue that the DRB could not vote to reopen the
deliberations in the absence of new evidence, and that the November
28, 2000 reconsideration and denial of the application were defective
due to the failure to warn that meeting or take additional evidence in
open meeting. Appellants argue that these defects warrant the
deemed approval of the application for the motor vehicle repair shop
and inspection station.

First, the A deemed approval@ remedy is disfavored, as it may result
in approvals contrary to a municipality= s zoning regulations and to the
State zoning enabling act. The Vermont Supreme Court has reiterated
that the deemed approval remedy should be used only to cure A
indecision and protracted deliberations@ on the part of the municipal
body. In re Appeal of Newton Enterprises, 167 Vt. 459, 465 (1998). In
the present case, the DRB= s December 1, 2000 written decision was
timely even when measured from the October 24, 2000 hearing;
therefore the deemed approval remedy is inapplicable.

However, embedded in their request for the deemed approval remedy
are Appellants= legitimate concerns about the process by which the
DRB reopened and reconsidered its vote on the motor vehicle repair
shop and inspection station. These issues are appropriate for
consideration in an appeal from the final decision after reconsideration.
Nash v. Zoning Bd. of Adjustment, 153 Vt. 108, 115 (1989).

This Court had occasion to address the circumstances under which a
municipal board may reopen a decision in In re: Appeal of Dunn,
Docket No. 2-1-98 (Vt. Envtl. Ct., March 8, 1999), based on a
balancing of the need for finality in zoning decisions and the need to
avoid unnecessary remands. The Court noted that it is good policy, if a
board A realizes that it has acted on incomplete or inadequate
information, or is informed of previously-unavailable evidence,@ to
allow the board to A reopen the initial proceeding if such a procedure
may result in a sounder decision, so long as the reopening works no
prejudice on the parties and they have adequate notice of the
reopened hearing.@ To assure that the reopening works no prejudice,
either to parties favoring the original decision or to parties intending to
appeal the original decision, we ruled in Appeal of Dunn that a board
may reopen a decision under the following conditions.

First, while the board need not warn the meeting at which it decides to
reopen, that decision must be taken prior to the expiration of the time
for appeal of the original decision. In the present case, the DRB voted
to reopen on November 14, 2000, well within the time for issuing the
written decision, as well as prior to the expiration of the time for
appeal, if it were measured from the original October 24, 2000 oral
decision.
Next, after the board has voted to reopen, it must provide the
interested parties and the public with proper notice5 of the hearing to
be held on the reopened decision. This step does not appear to have
occurred in the present case, although the DRB invited Appellant
Bushey to appear. This deficiency alone would warrant remand, rather
than to have this Court consider the merits of the reconsideration de
novo, as without the proper notice, we do not even know whether all
the interested parties who may have wished to be heard on the
reconsideration even knew enough to attend the hearing. See, In re
Maple Tree Place, 156 Vt. 494, 499 (1991). Moreover, the DRB
improperly heard from Mr. Bushey in deliberative session, and neither
Mr. Bushey nor the other possible interested parties were allowed to
present any additional evidence or argument at the public (open
meeting) part of the hearing on the reopened decision.

Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellants= Motion for Summary Judgment is DENIED
in PART and summary judgment is GRANTED to the Town on
Appellants= Questions 3 and 5 of the Statement of Questions in that
no deemed approval is warranted. However, Appellants= Motion for
Summary Judgment is also GRANTED in PART that the November 28,
2000 proceedings of the DRB were improperly warned for DRB to
address the merits of the reconsideration, and that the matter must be
remanded to that stage in the DRB= s proceedings for the reopened
merits of the auto repair and inspection station application to be
properly warned and heard.

We will hold a telephone conference at 9 a.m. on Tuesday, October 30,
2001, to discuss whether all that remains in this appeal is for the Court
to remand the matter to the DRB for a properly-noticed public hearing
on the reopened merits of the auto repair and inspection station
application. The Court will place the call. If both parties now agree that
the remand should be issued and that it concludes this appeal, please
so advise the Court in writing so that it is received at the Court by
close of business on Monday, October 29, 2001, and no conference will
be necessary.

Done at Barre, Vermont, this 22nd day of October, 2001.
___________________
Merideth Wright
Environmental Judge



                              Footnotes
1.
      At the time of application, the owners thought that the property
was in a commercial zoning district; six prior ZBA approvals of the two
buildings on the property and their various prior changes of use reflect
the „Commercial‟ district designation. Any vested rights of the owners
to the commercial use of this property are not at issue in this appeal.
2.
       Colloquy in the minutes of the October 24, 2000 ZBA hearing,
page 6, final paragraph, suggests that a portion of the property was
high-density residential, and a portion was low-density residential,
based on the 1974 zoning map, although on the 1988 zoning map it
appears as commercial/residential, and may have been changed again
to residential in 1993. Appellants state in their motion for summary
judgment that they have not been able to determine when or whether
the zone was changed, but assume for the purpose of the motion that
it is zoned residential.
3.
      Appellants refer to a notification from the Zoning Administrator to
Appellants some time in 2000 that they might not have the necessary
approvals for all of the current uses, including a “small engine repair”
use in Building 2; however, neither party has submitted this
notification.
4.
      This application has not been provided and does not appear to be
the subject of this appeal. It is referred to in the minutes as expansion
of a non-conforming use and a variance under §§305, 315(5) and 320
of the Zoning Bylaws.
5.
      The Town‟s memorandum states that there were no interested
parties other than Appellants, but the October 24, 2000 minutes
reflect the presence and participation of a Mr. David Schofield, who
lives on the southwest side of Franklin Rental and appears, at least
from the minutes, to qualify as an interested party.
