                                STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                         }
In re: Clyde’s Place, LLC, Application   }       Docket No. 9-1-08 Vtec
        (Appeal of Clyde’s Place, LLC)   }
                                         }

       Decision and Order on Appellant’s Motion for Partial Summary Judgment

       In Docket No. 9-1-08 Vtec, Appellant Clyde’s Place, LLC, appealed from a

decision of the Development Review Board (DRB) of the Town of Orwell, denying

Appellant’s alternative requests for approval of the proposed guest house as an existing

nonconforming structure under Article VII of the 1995 Zoning Bylaws or § 4.12 of the

2007 Land Use Regulations, or as qualifying for a variance under § 3.7 of the 2007 Land

Use Regulations. Two other related cases have been filed with the Court but are not

involved in the present motions: Docket No. 142-7-07 Vtec, which is an appeal of a

Notice of Violation, and Docket No. 17-1-08 Vtec, which is an enforcement action filed

by the Town. Appellant is represented by Karl W. Neuse, Esq., and Benjamin W.

Putnam, Esq.; and the Town is represented by Mark F. Werle, Esq., and Gregory J.

Boulbol, Esq.

       Appellant moved for summary judgment on Questions 1, 2, and 3 of the

Statement of Questions, relating to whether the decision on appeal is void because

members participated in the decision without having attended a November 20, 2007

hearing, whether the decision is void because three Board members changed their initial

votes, and, if the decision is void, whether Appellant is entitled to deemed approval of

its application.   In connection with the issues in the present motions, the parties

provided audio tapes of the DRB meetings held on November 20, 2007 and December

19, 2007, as they relate to this application. The following facts are undisputed unless

otherwise noted.
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       Appellant Clyde’s Place, LLC, owns a half-acre parcel of land at 4201 Mount

Independence Road on the shore of Lake Champlain. Under the former 1995 zoning

ordinance, it was located in the Rural Residential zoning district. Under the current

2007 zoning ordinance (2007 Land Use Regulations), it is located in the Rural zoning

district, and also in the Shoreland overlay zoning district and the Flood Hazard overlay

zoning district. Patrick Barry is a representative or member of Appellant who has been

acting for Appellant in the proceedings that are the subject of this appeal.

       The property contains a main house not at issue in the present case, and

contained a second existing residential building with a 21’ x 21’ foundation. Issues as to

the size of the then-existing building and its relation to the slope of the land, including

whether it had a walk-out basement, whether the entrance to the next story above the

basement was at ground level from the side of the house facing away from the lake, and

the volume of the house above the foundation, may be at issue with regard to the merits

of this matter, but are not at issue in the present motions.

       On June 5, 2006, Rae Anne Barry and Patrick Barry applied for and received a

zoning permit, issued by the Zoning Administrator, for new residential construction

“over existing footprint.” The application described the present use of the property as

“unused dwelling on Barry property” and described the proposed use as “guest hous[e]

on Barry property.”

       The rough sketch plan attached to the 2006 application for the zoning permit

showed the location of the proposed construction in relation to the main house on the

property, close to a private lane, and showed the locations of several neighboring

houses and Mount Independence Road. The sketch plan showed the proposed guest

house location indicated with an arrow and labeled as: “21 x 21 footprint to be used –

dug foundation [–] 2 stories – existing plumbing and sewage.” The sketch plan did not

1  Referred to incorrectly in some of the exhibits and memoranda as 422 Mount
Independence Road.
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depict the property boundaries or the “location in feet for frontage, depth of lot, setback

from a public road, and side and rear setbacks from property lines” required by the

application form to be provided on the sketch plan. The sketch plan also did not show

the lake shore, although the scaled site plan provided by Appellant in connection with

the present motions shows the porch or deck of the former building as having been

located only twelve feet from the lake shore.       Issues as to conversations between

Appellant’s representatives and former Zoning Administrators may be at issue with

regard to the merits of the enforcement cases, or any estoppel arguments, but are not at

issue in the present motions.

       Section 406 of the 1995 Zoning Bylaws prohibited more than one residential

building per lot. Section 5.1 of the 2007 Land Use Regulations2 allows an accessory

residential building, although it is required to meet all dimensional standards.

       As actually constructed, the new guest house consists of the walk-out basement

level, and two-and-a-half stories over that level. The walk-out basement level occupies

the 21’ x 21’ area of the former foundation. Based on the elevations and plans provided

in connection with the present motion, both the ground floor level and the new upper

floor level of the house appear to extend beyond that foundation by three additional

feet on the side of the house away from the lake, and by seven additional feet on each

side of the house, so that the footprint of both stories of the house (above the basement)

is 24’ x 35’.   The lakeshore wall of both the old and the new structure is in the same

location, twenty feet from the lake shore. The new deck extends farther laterally on

both sides than did the previous deck, but is one foot narrower, so that it is located

thirteen feet from the lakeshore. Issues regarding whether the new structure constitutes


2
   The parties have not provided the date on which the public notice was issued for the
first public hearing on the 2007 Land Use Regulations, necessary to determine whether
the proposed 2007 Land Use Regulations were applicable to the 2006 permit
application. 24 V.S.A. § 4449(d).
                                            3
an expansion, and how it is regulated under the zoning ordinance, may be at issue with

regard to the merits of this matter, but are not at issue in the present motions.

       Although Appellant appealed the issuance of an April 23, 2007 Notice of

Violation (in Docket No. 142-7-07 Vtec), Appellant also submitted a new permit

application for the as-built structure, characterizing it as the “[r]eplacement of existing

nonconforming structure.” Appellant listed the setbacks as follows: front setback (from

the lake) as 12 feet, back (apparently from the private road) setback as 36 feet, and side

setbacks as 52 and 150 feet. The application stated the building’s dimensions as “21 x

21; 24 x 35,” and stated the building’s maximum height as “28 feet,” and the number of

stories as “2.” Appellant also included a scaled site plan and elevations of the building.

Issues as to the size of the as-built building and its relation to the slope of the land,

walk-out basement, location of the entrance, size of the deck facing the lake, and the

size and volume of the house above the foundation, whether or how the building is

cantilevered, and what was told to Appellant’s representatives by prior representatives

of the Town, may be relevant to the merits of this matter, and to the other two matters

before the Court, but are not at issue in the present motions.

       Appellant requested consideration of the proposal as an existing nonconforming

structure under Article VII of the 1995 Zoning Bylaws or § 4.12 of the 2007 Land Use

Regulations, or as qualifying for a variance under § 3.7 of the 2007 Land Use

Regulations.3 It is this 2007 application that is the subject of the present appeal.

       The DRB held a hearing on the application on November 20, 2007.                 DRB

members Thomas Purdy, Sr., David King, Clyde Park, Donald Tupper, and Andrea

Ochs were present at the hearing; DRB members Miles Tudhope and Ed Taube were


3
   In addition, the 2007 Land Use Regulations now provide in § 3.6 for waivers, with
different criteria than the statutory requirements for a variance, but only “where
specifically authorized in these regulations.” § 3.6(A). No party claims that any waiver
provision in the 2007 Land Use Regulations is applicable to this application.
                                              4
absent. At the hearing, Patrick Barry and his sister Margaret Barry Toth provided

testimony and other evidence regarding the history of the property and the former

structure, their interactions with representatives of the Town with respect to the

property, and the characteristics of the proposed structure.

      After the evidentiary and discussion portion of the hearing, the five members of

the DRB who were present that evening voted on a motion to approve a variance for the

lake side setback. Three members of the DRB voted in favor of the motion (Park,

Tupper and Ochs), and two members of the DRB abstained from voting (Purdy and

King). Ms. Ochs announced that the variance had been granted; however, the issue was

immediately raised that the vote had not resulted in a valid approval of the variance

request because a majority of the entire seven-member board had not voted in favor of

the motion. 24 V.S.A. § 4461(a)(final sentence); 1 V.S.A. § 172. The five members

present then voted on a motion to approve the variance with specific reference to § 3.7

of the 2007 Land Use Regulations, which also did not result in a vote by a majority of

the full board. Two members of the DRB voted in favor of the motion (Tupper and

Ochs) and three members of the DRB voted against it (Park, Purdy and King).

      The DRB then voted to continue the consideration of the variance application to

the next DRB meeting. The DRB warning of the December 19, 2007 hearing referred to

this agenda item as: “[c]ontinuation of a variance application from Patrick E. Barry.”

      On December 5, 2007, Appellant’s attorney sent a letter to the Town’s attorney

explaining that his client’s representatives had “left the November 20 DRB hearing with

the understanding that the hearing had been completed” because “the [DRB] took all of

the evidence that was presented, declined to request submission of any additional

evidence, and completed a vote on the variance question;” and that he had not advised

his client’s representatives to attend the December 19, 2007 hearing.

      At the December 19, 2007 hearing, all seven DRB members were present, as was

Appellant’s attorney. The two DRB members (Miles Tudhope and Ed Taube) who had
                                            5
not been present at the November hearing stated that they had viewed the evidence

presented at the November hearing and had also listened to the tape of that hearing.

The DRB asked whether anyone wished to submit any new evidence or comments.

Attorney Neuse stated Appellant’s understanding from the November hearing that the

hearing had been closed when the votes were taken in November, and that the deemed

approval time was running from the November 20, 2007 hearing.             He also stated

Appellant’s argument that the two members who had been absent for the November

hearing had not observed the demeanor of the witnesses and should not be allowed to

vote on the decision.    No new evidence was presented at the December 19, 2007

hearing.

      The DRB then entered into a deliberative session, after which all seven members

voted unanimously to deny the variance. On December 28, 2007, the DRB issued its

written Findings of Fact and Decision, signed by all seven members of the DRB,

concluding that Appellant was “not entitled to a variance” and that “a zoning permit

should not issue.”



      Question 2 – Reconsideration of Vote

      As explained at length in In re Appeal of Dunn, No. 2-1-98 Vtec (Vt. Envtl. Ct.

Mar. 8, 1999), and cited in, e.g., In re Appeal of Comi, No. 95-6-04 Vtec, slip op. at 4–6

(Vt. Envtl. Ct. Mar. 14, 2005) (Wright, J.), a DRB may vote to reconsider its decision as

long as the time has not expired for an appeal to be taken from the decision, that is, if

there has not been reliance on the previous decision. A DRB may warn a hearing to

take additional evidence and an additional vote, by following the procedures for

reconsideration outlined in Appeal of Dunn.

      In the present case, immediately following the announcement of the vote of three

in favor and two abstentions at the November 20, 2007 hearing, Appellant’s

representatives and the DRB members became aware that the vote had actually been
                                            6
insufficient to constitute ‘action’ by the DRB, because it had not been taken by a

“concurrence of a majority” of the full seven-member DRB. 24 V.S.A. § 4461(a) (final

sentence); 1 V.S.A. § 172; In re Lionni, 160 Vt. 625 (1993) (mem.). Unlike under the

common law rule, in Vermont abstentions are not counted with the majority to

determine whether a vote has been taken by the concurrence of a majority. In re

Reynolds, 170 Vt. 352, 357 (2000). The DRB’s second vote at the November meeting, on

a slightly changed motion, was similarly ineffective, resulting in a vote of three in favor

and two opposed.

      Given the lack of a “concurrence of a majority” of the members of the DRB, and

the inability of the DRB to take “action” on Appellant’s application at the November 20,

2007 meeting, it was permissible for the DRB to vote to continue the hearing until more

members would be present. The DRB did not, strictly speaking, vote to reconsider,

rather, it simply continued the hearing to a future date on which enough DRB members

would be present to take effective action on the application.

      As discussed in In re Appeal of Dunn, even if the DRB in the present case had

voted to reconsider or reopen an effective “action” taken on November 20, rather than

simply to continue the hearing so that an effective vote of the DRB could be taken, the

DRB properly warned the December 19, 2007 hearing and gave all interested parties the

opportunity “to present any additional evidence and argument at the hearing on the

reopened decision” so that there was “no prejudice either to parties favoring the

original decision, nor to parties intending to appeal the original decision.” Appeal of

Dunn, slip op. at 5. The fact that Appellant in the present case chose not to present

additional evidence does not make the DRB’s deliberations and vote on December 19,

2007 improper.

      In reconsidering a decision, members of a DRB are free to vote differently than

they had initially voted; if they were not, reconsideration would have no purpose. As

this Court recognized in In re Appeal of Dunn, “it is far more efficient for [a DRB] to
                                            7
have the opportunity to correct its own decisions than to have the reviewing court

necessarily make the correction.” Appeal of Dunn, slip op. at 4. Reconsideration allows

a DRB to correct errors by providing its members an opportunity to consider the

evidence anew and to vote accordingly. Similarly, in the present case the DRB members

who had been present at the first hearing were free to change their vote upon further

consideration of the evidence and further deliberations among themselves; their change

from the initial attempted vote does not render their December 2007 decision void.



       Question 1 – Participation of DRB members not present at November hearing

       In Vermont, even in a case using the more formal proceedings necessary to have

an appeal be considered on the record, an absent member is allowed to participate in

the vote if that person listens to an audio or video recording of any missed testimony

and reviews all the exhibits and other evidence. 24 V.S.A. § 1208(b). Such procedure is

also sufficient under Vermont law in order to comply with due process, Lewandoski v.

Vt. State Cols., 142 Vt. 446, 452–53 (1983); In re JLD Props. – Wal Mart St. Albans, No.

132-7-05 Vtec, slip op. at 9 (Vt. Envtl. Ct. Sept. 5, 2006) (Wright, J.); see generally 4 K.

Young, Anderson’s American Law of Zoning § 22.46 (4th ed. 1997 & Supp. 2008)

(discussing voting by board members who did not attend hearings), unless the record

available to the absent board members does not provide a reasonable basis for

evaluating the testimony or other evidence in question, In re Villeneuve, 167 Vt. 450,

455–57 (1998) (members present at hearing viewed and test drove vehicle in question;

absent members who did not do so should not have participated in the decision).

       In the present case, the two absent members who participated in the decision

stated on the audio tape at the outset of the December 19, 2007 hearing that they had

listened to the tape of the previous day of hearing and had examined all the

documentary evidence. We need not determine whether the record available to them

provided a reasonable basis for evaluating the evidence, because the December 19, 2007
                                             8
vote was unanimous. That is, even if the votes of the two DRB members who had not

been present at the November 20, 2008 hearing had not been counted, the result would

have been five-to-zero against approval of the variance.

       In a municipality that has not adopted the procedures necessary to have its

appeals be on the record, this Court is directed by statute to consider the application de

novo, applying the substantive standards applicable in the tribunal appealed from. 10

V.S.A. § 8504(h); V.R.E.C.P. 5(g). In such de novo cases the Court does not generally

examine procedural defects at the municipal level, unless they are so egregious as to

implicate basic questions of fairness and impartiality. See, e.g., In re JLD Props., slip op.

at 4–8 (board member’s appearance of pre-judgment required Court to examine

procedural defects at municipal level).       No such pre-judgment or other egregious

behavior is alleged to have contaminated the vote in the present case. The participation

of the two members who had been absent for the November 2007 hearing did not

render the December 2007 decision void.



       Question 3 – Deemed Approval

       Under the state statute governing DRB procedure, a DRB “should close the

evidence promptly” after all parties have submitted any requested information, and

“shall adjourn the hearing and issue a decision within 45 days after the adjournment of

the hearing.” 24 V.S.A. § 4464(b)(1). A DRB’s failure “to issue a decision within this

period shall be deemed approval and shall be effective on the 46th day.” Id. Decisions

must be in writing and must include “a statement of the factual bases on which the

[DRB] has made its conclusions and a statement of the conclusions.” Id. “The minutes

of the meeting may suffice” as such a decision, provided that “the factual bases and

conclusions relating to the review standards are provided in conformance with [§

4464(b)(1)].” Id.


                                             9
       As discussed in In re Valois Airplane Storage Application, No. 254-11-07 Vtec,

slip op. at 5–8 (Vt. Envtl. Ct. Sept. 23, 2008) (Wright, J.), the statutory provision for

deemed approval “is ‘intended to remedy indecision and protracted deliberations on

the part of zoning boards and to eliminate deliberate or negligent inaction by public

officials.’” In re McEwing Services, LLC, 2004 VT 53, ¶ 21, 177 Vt. 38 (quoting In re

Fish, 150 Vt. 462, 464 (1988)). Deemed approval is not appropriately applied to timely

decisionmaking, even if the decision itself is technically deficient. See In re McEwing,

2004 VT 53, ¶ 21 (collecting cases inappropriate for deemed approval because a timely

decision was rendered, despite defects in decision or decisionmaking process).

Applying the deemed approval remedy to situations without protracted deliberations,

indecision, or deliberate or negligent inaction, could instead result in approval of

permits “wholly at odds with the zoning ordinance.” In re Appeal of Newton Enters.,

167 Vt. 459, 465 (1998).

       In the present case the DRB began its hearings on Applicant’s application on

November 20, 2007. A DRB may continue its hearings, provided that the time and place

of the continued hearing is announced at the prior hearing. 24 V.S.A. § 4468. Even if

the December 19, 2007 hearing did not constitute a ‘public hearing’ sufficient to prevent

deemed approval in the absence of a timely decision from the DRB, that is, if it was only

a deliberative session, In re McEwing, 2004 VT 53, ¶ 16, the decision was timely if

measured from the November 20, 2007 hearing to the December 28, 2007 written

decision.

       Unlike under the former statute, which turned on when the DRB had voted or

“rendered” a decision, the current statute requires the DRB actually to “issue” its

decision in writing or in the minutes within the required period. 24 V.S.A. § 4464(b)(1).

Compare, e.g., Leo’s Motors, Inc. v. Town of Manchester, 158 Vt. 561, 565 (1992)

(decision “finally made” at meeting), with In re Dufault Variance Application, No. 287-

12-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. Aug. 4, 2008) (Wright, J.) (meeting minutes
                                           10
reflected a vote, conclusions, and reasoning preventing deemed approval); In re Valois,

slip op. at 5–8. The minutes of the December 19, 2007 hearing fail to meet the statutory

requirement to be sufficient as a decision, as they just record the vote and do not

provide either a “statement of the factual bases” for the DRB’s conclusions, or a

“statement of the conclusions.”      24 V.S.A. § 4464(b)(1).   Accordingly, the deemed

approval period must be counted from the November 20, 2007 hearing to the December

28, 2007 written decision, a period of thirty-eight days.

       Because the December 19, 2007 vote was not void and the written decision issued

on December 28, 2007 was within the required time when measured from the

November 20, 2007 public hearing, deemed approval did not occur.




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

that Appellant’s Motion for Partial Summary Judgment is DENIED, and summary

judgment is entered in favor of the Town on Questions 1, 2, and 3 of the Statement of

Questions.



       Done at Berlin, Vermont, this 14th day of November, 2008.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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