                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

               Appeal of Green Meadows               Docket No. 208-12-01 Vtec
               Center, LLC                       }
                                                 } Docket No. 152-9-01 Vtec
               Appeal of Tierney, et al.         }
                                                 } Docket No. 179-10-99 Vtec
               Appeal of Gilberg, et al.         }


                             Decision and Order on Pending Motions

All three of the above-captioned cases involve the same property in Wilmington, Vermont.
Docket No. 208-12-01 Vtec is an appeal from the Planning Commission= s denial of approval of
a Planned Unit Development (PUD) for the property. Docket No. 152-9-01 Vtec is an appeal
from the ZBA= s grant of conditional use approval (Application #844) for the uses proposed in
connection with the Planned Unit Development. Docket Nos. 208-12-01 Vtec and 152-9-01 Vtec
have been consolidated with each other. Docket No. 179-10-99 Vtec is an appeal of a 1999
conditional use permit (Application #803) issued by the ZBA for the property.

In each of these cases Patricia Tierney, John Scott, Louis Beaudette and Cynthia Beaudette are
represented by Robin L. Stern, Esq.; the Town of Wilmington is represented by Richard M. Gale,
Esq.; and the Applicants Green Meadows Center, LLC, Southeast Vermont Community Action,
and The Community Alliance are represented by Richard D. Perra, Esq. In Docket No. 179-10-
99 Vtec, Michael and Ellen Gilberg now represent themselves; however, Mr. Gilberg specifically
has declined to enter his appearance in the PUD cases, Docket Nos. 208-12-01 Vtec and 152-9-
01 Vtec, but has joined in the memoranda filed by Attorney Stern, to the extent they are not
inconsistent with his position. Two citizens of Wilmington, Jennifer Fitzgerald and Clifford
Duncan, have been dismissed as interested parties from these appeals, but continue to receive
courtesy notices of the proceedings.

Because the Applicants are appellants in the most recent case, and are appellees in the two earlier
cases, we will refer to them as > Applicants,= and will refer to the parties represented by Attorney
Stern as > Neighbors.= The term > Neighbors= includes the Gilbergs unless the context requires
differentiation, in which case we will refer to the Gilbergs by name.

Applicants= Motion for Judgment as a Matter of Law

Applicants have moved for judgment as a matter of law as to Question 1 and Questions 7
through 14 from the Statement of Questions filed October 14, 1999 in Docket No. 179-10-99
Vtec, and as to Question 7 and Questions 9 through 21 from the Statement of Questions filed
February 1, 2002 in Docket No. 152-9-01Vtec. Some of those issues were concluded by the
Court= s Decision and Order dated November 27, 2000 in Docket No. 179-10-99 Vtec. We will
take each question in turn.
Docket No. 179-10-99 - Question 1

This issue was concluded by the Court= s November 2000 Decision and Order, that the 1998
Conditional Use Permit and its extension provision became final and cannot now be challenged,
directly or indirectly, even if there was no basis in the ordinance or statute for the extension
provision. The ZBA= s action under the extension provision on June 21, 1999 to extend the
permit= s expiration date to June 21, 2001 therefore also cannot be challenged for lack of
authority, as such a challenge would amount to an indirect challenge to the extension provision
in the 1998 permit.

However, any additional questions about the validity of that permit after June 21, 2001, during
the pendency of Act 250 permit applications or the various zoning appeals, are not raised by
Question 1 and were not concluded by this Court= s November 2000 Decision and Order. The
Court makes no ruling whether such additional questions are properly raised in any of these
appeals; if they were properly raised, material facts would be in dispute as to such questions.

Docket No. 179-10-99 - Questions 7 & 8

Material facts are in dispute as to whether the project will adversely affect traffic on roads or
highways in the vicinity, regardless of whether any traffic expert recommended any particular
reduction in speed limit at the prior hearings; regardless of whether any changes have been made
in the speed limit since the litigation began; and regardless of whether any permit limitations
imposed by the Act 250 process may have any effect on the traffic analysis.

Docket No. 179-10-99 - Question 9 and Docket No. 152-9-01 - Question 10

These issues were concluded by the Court= s November 2000 Decision and Order, that the
sideline setback is 20 feet in the Residential zoning district, and that the ordinance does not
provide for an increased setback for commercial uses in a residential district.

Docket No. 179-10-99 - Question 10

Unlike Question 9, material facts are in dispute as to whether, when and under what
circumstances the side setback of 22 feet was created by the Applicants or their predecessors,
and as to whether that setback is adequate in fact or is entitled to any so-called > grandfathered=
treatment. The Court= s November 2000 Decision and Order noted that an increased setback for
commercial uses adjacent to residential uses may be imposed if necessary as a condition in a
conditional use permit.

Docket No. 179-10-99 - Question 11 and Docket No. 152-9-01 - Question 11

Similarly to Questions 9 and 10, the ordinance does not provide for commercial district parking
requirements to be imposed on commercial uses in a residential district; however, increased
parking requirements may be imposed if necessary as a condition in a conditional use permit.
Material facts are in dispute as to whether such parking restrictions are necessary to meet the
conditional use criteria.
Docket No. 179-10-99 - Questions 12 & 13 and Docket No. 152-9-01 - Questions 12 - 16

Material facts are in dispute as to whether conditions should be imposed regarding the entity
expected to own or manage the project, and whether a bond should be required, to meet the
conditional use criteria or the Planned Unit Development criteria. These facts are in dispute
regardless of whether or what conditions have been imposed in the Act 250 process regarding the
ownership and/or operations of the project.

Docket No. 179-10-99 - Question 14 and Docket No 152-9-01 - Question 20

Applicants are correct that the Wilmington Zoning Ordinance applicable to the conditional use
permit do not require the project to demonstrate compliance with the Town Plan. Many towns do
require compliance with > the municipal plan and any other bylaws in effect= but Wilmington= s
ordinance only requires that the proposed use not adversely affect A other bylaws then in effect.@
Of course, the standards applicable to the Planned Unit Development decision at issue in Docket
No. 208-12-01 Vtec do require an analysis of the project= s conformance with the Town Plan, and
the Court expects that evidence as to those issues will be presented at trial.

Docket No 152-9-01 - Questions 7 and 18

Applicants argue that the notice of the public hearings was adequate, and that the lack of
procedural information regarding appeal rights was harmless error. The Neighbors argue that the
ZBA failed to comply with the notice requirements for the public hearings for Application #844,
and that the permit when issued lacked any notification of the time within which an appeal could
be taken to this Court. However, the Neighbors do not assert any detriment to them stemming
from either failure. If the lack of proper notice prevented them from participating in the hearings
before the ZBA, it could be grounds for a remand to the ZBA. If the lack of notification of
appeal rights prevented them from bringing a timely appeal, it could be grounds for allowing an
appeal to be filed out of time, or for a remand to the ZBA. However, without any showing of
harm to the Neighbors, the lack of notice does not warrant a remand in this de novo proceeding.

Docket No. 152-9-01 - Question 9

As discussed below under the Neighbors= motion, ' 7.F. of the zoning ordinance provides for
Planning Commission approval of a proposed PUD, and for prior ZBA conditional use approval
of any uses that are conditional uses in the district in which the project is located. The standards
for conditional use approval remain those in Section 7 of the ordinance regarding conditional
uses. They have not been changed or augmented by the adoption of ' 7.F. The Court will apply
the conditional use standards de novo in Docket No. 152-9-01 Vtec.

Docket No. 152-9-01 - Question 17

Applicant is correct that 24 V.S.A. ' 4407(12) does not restrict Planned Unit Development
regulations to those towns that have adopted subdivision regulations. Section 4407(12) merely
allows the Planning Commission to rule on a subdivision application and a PUD application in
the same proceeding.
Docket No 152-9-01 - Question 19

If any of the Neighbors is precluded by principles of res judicata from raising the question of
whether the Planned Unit Development ordinance was properly adopted, it would only be
Cynthia and Louis Beaudette who would be so limited, as they appear to have been the only
parties to the Windham Superior Court action regarding the validity of the vote adopting that
ordinance. However, adoption of an ordinance amendment is not an action of the ZBA or
Planning Commission that is cognizable in Environmental Court.

Docket No 152-9-01 - Question 21

Applicants did not apply for a Planned Residential Development. The Court must determine
whether or not the project meets the criteria for approval as a Planned Unit Development.



Neighbors= Motion for Judgment as a Matter of Law (issues not already addressed above)

The Neighbors argue as a matter of law that many of the uses applied for in the conditional use
permit application (#844) that is the subject of Docket No. 152-9-01 Vtec are not allowed in the
district. They also argue that as a matter of law the ZBA failed to apply the standards required
for conditional uses in a PUD.

The application for conditional use approval #844 is de novo before the Court and the Court will
apply the standards required by the Wilmington Zoning Ordinance. The ordinance as amended
provides in ' 7.F. that the Planning Commission can approve as a PUD a project that otherwise
would not meet some of the following criteria in the zoning regulations for that district: A lot size,
bulk or type of dwelling, commercial or industrial use, density, lot coverage, and required open
space.@ The purpose statement of the PUD provision begins with the purpose A to encourage
planned communities or community centers for residential, commercial and/or
industrial/service/recreational uses or any combination thereof.@

Prior to applying to the Planning Commission, under ' 7.F.(2), an applicant for a PUD must
apply to the ZBA for approval of those uses within the project that are conditional uses in the
district in which the project is located. The next sentence states that the uses allowed in a PUD A
shall be limited to those permitted and conditional uses within either district.@ (Emphasis added).
The Neighbors argue that the latter sentence should be interpreted essentially as if it also limited
the uses within a PUD to the A permitted and conditional uses > within the district in which the
project is located.= @ However, we must apply the principles of statutory construction to
interpreting an ambiguity in a new ordinance. The Selectboard is presumed to have intended the
distinction it made by using the two different phrases: > the district in which the project is
located= and > within either district.=

It gives effect to all sections of the ordinance to interpret the second phrase, A within either
district,@ to mean that the uses within a PUD are limited to those uses allowed anywhere in town;
that is, to exclude only those uses excluded generally from the town. This interpretation is
consistent with the purpose of a PUD to provide for planned developments combining A
residential, commercial and/or industrial/service/recreational uses or any combination thereof@
(emphasis added). It is also consistent with the definition of a PUD as an area of land to be
developed as a single entity for mixed uses, the plan for which does not comply with the
regulations of A the district within which it is located@ regarding, among other things, the A type
of dwelling, commercial or industrial use.@ Therefore, Applicants may apply to the Planning
Commission for approval of a PUD that includes uses otherwise not allowed as conditional or
permitted uses within the district in which the project is located, as long as the uses are
conditional or permitted uses within the town. Only those uses that are conditional uses in the
district in which the project is located must also receive prior conditional use approval from the
ZBA.

The Neighbors argue that because the project proposes residential uses (six senior residences and
six visitor residences) it should be reviewed as a Planned Residential Development (' 7.E.). The
zoning ordinance does not require such review, as the PUD section (' 7.F.) of the ordinance
allows for residential uses in the mixed uses of a PUD.

While the Neighbors are correct that the PUD regulations require a review of the number of units
that otherwise would be allowed under the density requirements of the zoning ordinance (see ' 4
on page 2 of the amendment adopting ' 7.F.), that analysis must be made by the Planning
Commission in reviewing the PUD, and not by the ZBA in conducting its conditional use review
of any of the uses proposed for the project that are conditional uses in the district in which it is
located.

The Neighbors argue that the ZBA erred in relying on the Act 250 permit. In this de novo
proceeding the Court will determine to what extent the project as described in the Act 250 permit
has been incorporated by reference into the Applicants= application for the conditional use permit
#844 or for the PUD. Both applications that are the subject of Docket Nos. 152-9-01 and 208-12-
01 Vtec will be addressed on their merits under the Town ordinances.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that each party= s
motion for judgment as a matter of law has been granted in part and denied in part, as discussed
above, and in the November 2000 decision and order relating to Docket No. 179-10-99 Vtec. All
other questions or portions of questions in the statements of questions in Docket No. 179-10-99
Vtec and Docket No. 152-9-01 Vtec, as well as in Docket No. 208-12-01 Vtec, remain for the
hearing on the merits. On or before May 29, 2002, for each question in the statement of questions
for each of the three cases, the party posing those questions (that is, the appellants for that
particular case) shall file a brief outline of whether the issue has been concluded, concluded in
part, or remains for the hearing on the merits. Any dispute as to this filing shall be filed so that it
is received by the Court on or before June 10 2002, so that any dispute can be resolved prior to
trial.

At trial, the parties should be prepared to address the relevance, if any, of the Act 250 permit to
these applications, and in particular whether it was incorporated by reference into Application
#844.
The merits of all three of these matters remain scheduled for June 26, 27 and 28, 2002, in
Brattleboro. If a telephone conference is requested, it can be scheduled for the morning of May
29, 2002, for June 10, 2002, or for late afternoon on June 13, 2002. If an in-person conference
would be useful, it may be possible to schedule one for the late afternoon of May 29, 2002, in
Brattleboro. Please advise the Court as soon as possible if a conference is requested.



Done at Barre, Vermont, this 13th day of May, 2002.




___________________
Merideth Wright
Environmental Judge
